T P ARUMUGHA BHAKTHAR Vs. K NARASIMHA IYENGAR

JUDGEMENT

(1.) The appellant obtained a money decree against the first respondent in O. S. No. 17 of 1954 on 30-8-1955. The second respondent obtained a money decree against the appellant in O. S. No. 8 of 1954 on the file of the same Court on 79-1955. In E. P. No 123 of 1957, the second respondent applied for execution of the decree in O. S. No. 8 of 1954, by attaching the decree in O. S. No. 17 of 1954. The second respondent also applied simultaneousely for the issue of a prohibitory order under Order 21 R. 46 C. P. C. The attachment was ordered and the prohibitory order was issued on 16-111957. The attachment of the decree in" O. S. No. 17 of 1954, was made absolute On 14-12-1957, and E. P. No. 123 of 1957 was closed. The second respondent did not take any further steps to execute the decree in O. S. No. 17 of 1954. On 24-9-1958 the appellant filed E. A. No. 373 of 1958 seeking permission to execute the decree in O. S. No. 17 of 1954 and obtained that permission on 11-10-1958. The appellant then filed E. P. No. 141 of 1958 on 14-10-1958 for execution of the decree in O. S. No. 17 of 1934. The plea of the first respondent, judgment- debtor in O. S. No. 17 of 1954, that the execution petition filed on 14-10-1938, more than three years after the date of the decree 30-8-1955, was barred by limitation was upheld by the Courts below, and hence this second appeal.

(2.) To save the apparent bar of limitation the learned counsel for the appellant relied on Section 15 of the Limitation Act, and independently of that on Order 21 Rule 53 C. P. C. and the proceedings taken by the second respondent who sought and obtained attachment of the decree in O. S. No. 17 of 1954. Section 15(1) of the Limitation Act provides:-

(3.) In Rangaswami Chetti v. Thangavelu Chetti, ILR 42 Mad 637 : (AIR 1919 Mad 317) the plaintiff attached a book debt in 1913. The debt was payable in August, 1911. Subsequently the attached book debt was brought to sale and purchased by the plaintiff himself and he instituted the suit to recover that debt on 15-3-1915. The question was whether the claim was within time. Seshagiri Aiyar J. observed at p. 641 (of ILR Mad) : (at pp. 318-19 of AIR):- "The first contention raised by the learned vakil for the .appellant before us was that Section 15 of the Limitation Act saved the bar because the attachment was pending between November, 1913. and February, 1915. This contention must be overruled. There is the direct decision of the Allahabad High Court in Shib Singh v. Sitaram, ILR 13 All 76, to the effect that an attachment is not covered by the expression 'an injunction or Order' in Section 15 of the Limitation Act. The Judicial Committee in Beti Maharani v. Collector of Etawah, ILR 17 All 198 (PC) held that in the case of an attachment before judgment Section 15 will not save the bar. In that decision they expressly approve of the principle enunciated in ILR 13 All 76. In Shunmugam v. Moidin, ILR 8 Mad 229, is seems to have been suggested that the prohibitory order issued during the attachment would coma within the meaning of Section 15. That dictum can not be regarded as good law in the face of ILR 17 All 198 (PC)."