IPPAGUNTA LAKSHMINARASINGA RAO Vs. IPPAGUNTA BALASUBRAMANYAM AND ANR.

JUDGEMENT

(1.) THE appellants are two brothers who were judgment -debtors in a partition decree. The preliminary decree was passed on 3rd March, 1932. It contained provisions for giving the plaintiff who was a nephew some immediate executable reliefs : (1) costs of Rs. 93 -6 -0; (2) partition and separate possession of specified Immovable properties; and (3) Rs. 750 for past and subsequent mesne profits. This preliminary decrees in due course fructified into a final decree on 8th September, 1932. The point this appeal raises for determination is whether E.P. No. 94 of 1944, which was filed on 8th September, 1944, for these money reliefs is in time. It is admittedly more than 12 years after the preliminary decree was passed, but within this period dating from the final decree. At the time when this execution petition was filed there was another execution petition E.P. No. 85 of 1942 in fact pending. It was filed by the decree -holder against these same judgment -debtors for the recovery of these same money reliefs accorded in the preliminary partition decree by attachment and sale of some specified Immovable property. Then in E.P. No. 94 of 1944 the decree -holder sought to attach again, it would appear by way of abundant caution the same Immovable property but added prayers for arrest and attachment of moveable property as well.

(2.) A specific objection was taken to the E.P. No. 94 of 1944 in the counter of the first respondent in paragraph 2 that this execution petition was barred by the 12 years' limitation period prescribed by Section 48 of the Code of Civil Procedure. The learned District Judge has given no finding on this point at all. In paragraph 4 of his judgment he stated that the first defendant contended that the preliminary decree was only a declaratory decree and that it was unexcitable and secondly that this execution petition was barred by limitation. He observed then that both these contentions were devoid of substance, but nowhere in his judgment has he dealt specifically with the point whether E.P. No. 94 of 1944 was barred under Section 48 of the Code of Civil Procedure.