PARAMESWARAN KARTHA Vs. EDAPPALLY VALIA RAJA

JUDGEMENT

(1.) This second appeal is by a judgment - debtor whose objection to execution on the score of limitation has been overruled by the courts below.

(2.) The decree in question, a money decree, was passed on 22-3- 1119 M. E., and the present application for execution, which is the only application so far, was filed on 21-5-1123, four years and two months after the decree. But even before the decree, the judgment - debtor had, on 20-10-1116, instituted a petition (D.R.P. No. 292 of 11 16) in the District Court of Alleppey for a settlement of his debts under S.16 of the Travancore Debt Relief Act, Act II of 1116. To this petition, the present decree holder was impleaded as a party on 14-2-1119 in respect of the very claim on which the decree was passed a month later; and on 26-3-1119 he appeared before court in response to a notice issued under S.17 (2) of the Act and filed a memorandum claiming the amount due to him and demanding priority in the matter of payment. The petition was eventually dismissed on 14-4-1122 for want of prosecution and with it went the decree holders memorandum. The only question for decision in this appeal is whether the period of the pendency of the petition can be excluded for purposes of limitation under S.14 (2) of the Limitation Act.

(3.) We think it can. That D.R.P. No. 292 of 1116, and, in particular the claim made therein by the present decree holder, were civil proceedings between the same parties in respect of the same matter is not, and indeed cannot, be disputed. Nor is it alleged that, in respect of those proceedings, there was any want of due diligence or good faith on the part of the present decree holder. It was solely by reason of the judgment - debtors default that the main petition had to be dismissed; and the main petition having gone, the court found itself unable to deal with the decree holders claim. That being so, the only question that needs to be answered in the affirmative before giving the decree holder the benefit of S.14 (2) of the Limitation Act is whether it can be said that he was prosecuting that proceeding against the present judgment - debtor for the same relief, and whether the court was unable to entertain his claim from defect of jurisdiction or other cause of a like nature.