KURUVILLA KURUVILLA Vs. OUSEPH JOSEPH

JUDGEMENT

(1.) The legal representative of the decree holder in O.S. No. 574 of 1108 on the file of the Court of the District Munsiff of Meenachil, has brought this second appeal against the order the learned Temporary Additional District Judge of Kottayam passed on 21.3.1953 in A.S. No. 207 of 1953 dismissing the execution application (E.P. 65 of 1952) filed by the appellant as barred by time. The District Munsiff had allowed the execution to proceed overruling the judgment debtors objection that the execution was barred by limitation. The learned District Munsiffs view was that by reason of certain prior orders the judgment debtor was precluded at the present stage of the execution proceeding from raising the plea of limitation. The appellate court differed from the execution courts view and dismissed the application. Hence this second appeal.

(2.) E.P. 65 of 1952 was the 4th execution petition filed in the case. The decree is one passed on 23.7.1115 and is a simple (unregistered) money decree. Admittedly the first execution petition, E.P. 17 of 1120 was made beyond 3 years from the date of the decree. E.P. 17 of 1120 was filed on 7.1.1120. It is common ground that the three subsequent petitions were each filed within three years of the filing of the one immediately preceding it. The second one, E.P. 148 of 1123, was filed on 1.3.1123, the third one, E.P. 501 of 1950, on 21.12.1950 and the fourth (E.P. 65 of 1952) on 3.3.1952. The objection raised by the judgment debtor was that as the first execution petition was filed out of time and no effective order in execution was made on it or on the second or the third application, the present one should be held to be barred by time. The lower appellate court accepted this view.

(3.) Before us the learned counsel for the appellant urged two grounds in support of the second appeal. The first ground was that the decree was attached before judgment in a suit (O.S. 35 of 1110) filed before the Kottayam District Court and that as the attachment was lifted long after the first execution petition, the second and the subsequent applications have to be held to have been filed within time. Indeed this is the only ground specifically raised in the memorandum of second appeal. However, it was another ground, namely, that by reason of certain prior orders in execution the judgment debtor was precluded from raising the plea of limitation at the present stage of the proceeding, that was more elaborately argued before us. The respondents counsel did not tell us in his argument that this ground was not properly taken in the memorandum of second appeal. It is rather surprising that while the lower appellate courts decision went against the appellant on this ground, no specific objection should have been taken against it in the second appeal memorandum. Having permitted the appellant to raise this ground, though unwittingly, we shall deal with this ground also on the merits.