KARANAKODAM GOWDASARASWATHA BRAHMANA SAMAJAM Vs. OUSEPH AND ANOTHER

JUDGEMENT

(1.) THE decree holder in O.S. No. 43 of 1107 of the Court of the District Munsiff, Ernakulam, is the appellant in this second appeal. His execution petition E.P. No. 423 of 1954 was dismissed by the learned District Munsiff on the ground that it was barred by limitation and the dismissal has been confirmed by the learned District Judge of Anjikaimal by his judgment in A.S. No. 19 of 1955. The main question for decision is whether the order of the District Munsiff dated 3 -8 -1951 in E. P. No. 1695 of 1950 can be considered as a "subsequent order" within the meaning of section 48 (1) (b) of the Code of Civil Procedure, 1908. The order in E.P. No. 1695 of 1950 reads as follows: -

(2.) SECTION 48 (1) (b) provides that "where the decree or any subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods", the execution becomes barred only on the expiration of 12 years from "the date of the default in making the payment or delivery in respect of which the applicant seeks to execute the decree". As pointed out in Chitaley's commentary on the Code of Civil Procedure, 1908, (Volume I, page 630) "there is a conflict of opinions on the question whether an order of an executing Court can operate as a subsequent order under this section".

(3.) IN a more recent case -, A.I.R. 1955 Raj 33 - the matter was dealt with as follows