GOVINDAN Vs. CHANDUNNI

JUDGEMENT

(1.) The judgment debtor is the appellant. The decree in question was passed on 27-6-1953. Execution was laid on 9-8-1966 as per E.P. No. 554 of 1966. A property belonging to the judgment debtor was attached. A claim petition was filed under O.21 R.58, Code of Civil Procedure as E. A. No. 1845 of 1966. This was allowed on 22-9-1967 and E.P No. 554 of 1966 was dismissed. Consequently the decree holder filed O. S. 171 of 1968 under O.21 R.63 CPC. The suit was decreed on 15-7-1970. Thereafter E. P. No. 320 of 1972 was filed to proceed with execution.

(2.) The contention of the judgment debtor appellant is that the execution is barred by limitation since the original E.P. No. 554 of 1966 was dismissed on 9-8-1966. The present execution petition is filed only on 7-4-1972.

(3.) The main contest in this second appeal therefore has to be resolved with reference to the question whether the period during which the suit under O.21 R.63 was pending, could be taken into account to save limitation. The counsel for the appellant invited my attention to the decision reported in Ramasubbayyah v. Thimmaiah ( AIR 1942 Mad. 5 ), where a Division Bench of the Madras High Court held that when a suit under O.21 R.63 is filed, it will not revive the original execution petition which was dismissed. There, a property was attached in execution of a decree which was released on objection by third parties. No further relief was asked for in the execution application and hence the said application was dismissed. Thereafter the decree holder filed a suit under O.21 R.63 CPC. which was eventually dismissed. Their Lordships held that the order dismissing the execution petition became conclusive and the execution petition cannot be said to be in suspended animation until the suit under O.21 R.63 is dismissed. It was held that the second execution petition filed three years after the date of dismissal of the first petition was time barred. That case can be easily distinguished from the one on hand. What happened there was that the original execution order was the subject matter of a suit under O.21 R.63 CPC. which suit itself was dismissed. The second execution petition was filed three years after the dismissal of the original execution petition. Therefore the Madras High Court rightly held that the second execution petition was barred by limitation.