GOVINDA BHATTA Vs. KRISHNA BHATTA

JUDGEMENT

(1.) THE first defendant-judgment debtor in S. C. No. 236 of 1952 on the file of the munsiff's Court, Puttur Is the petitioner in this Civil Revision Petition. He challenges the correctness of the order passed by the lower Court holding that the Execution petition S. E. A. No. 97 of 1961 filed by the decree-holder is not barred by limitation.

(2.) S. C. 236 of 1952 was a suit filed by the respondent herein against the revision petitioner for recovery of money on the strength of a promissory-note dated 5-149. The suit was decreed on 3-10-52. The Execution Petition was filed by the decree-holder only on 28-8-81 and the question for consideration is whether or not the said petition was barred by limitation. According to the decree-holder, in computing the period of limitation, he is entitled to exclude the period from 15-155 till 31-10-60 on the ground that during the said period the decree had been rendered unexecutable as a result of the judgment in O. S. 219 of 1952 evidenced by Ext. A-3 which was subsequently set aside on 31-10-60 by the appellate Court.

(3.) O. S. 219/52 was a suit filed under Section 53 of the Transfer of Property Act by two persons claiming to be creditors of the present Judgment-debtor (first defendant) praying for a declaration that a sale-deed dated 7-11-50 executed by the latter was fraudulent and hence not binding on the plaintiffs and the other creditors. The present decree-holder had also been impleaded as the fifth defendant in the aforesaid suit on the allegation that he was one of the creditors of the first defendant. The suit was decreed by the trial court by judgment Ext. A-3 dated 15-1-55. The 4th defendant in the suit who was a transferee under the impugned document had raised a contention that neither the plaintiffs nor the 5th defendant (present decree-holder) was in fact, a creditor of the first defendant and that therefore, the transfer in his favour was not liable to be challenged by any of them as being in fraud of creditors. In the judgment Ext. A-3 the trial court found that both the plaintiffs were creditors of the first defendant and that they were therefore competent to maintain the suit. With respect to the contention that the 5th defendant was not a creditor, the trial court held that it was not satisfied that the promissory-note in his favour was in existence at the time of the sale-deed Ext a-18 and that therefore, the 5th defendant could not be held to be a creditor of the first defendant on the date if Ext. A-18 (7-11-1950), Notwithstanding this finding, the suit was decreed as prayed for with costs. The 5th defendant took up the matter in appeal to the District Court (A. S. No. 31 of 1957 District Court, tetticherry) challenging the aforesaid finding recorded against him by the trial court. The appeal was allowed by the learned District Judge by judgment dated 31-10-60 and the impugned finding recorded by the trial court was set aside.