S.K. YESUDASAN Vs. A. GRANT

JUDGEMENT

(1.) This civil revision petition arises out of execution proceedings. The plaintiff is the petitioner before this Court. The only point is whether the Court below was right in dismissing the plaintiff's application for execution of the decree as to costs on the ground that the execution petition is belated. The decree in question was a preliminary decree in a partition suit. The decree was passed on 7th September, 1962. Under the terms of the said decree costs were awarded in favour of the petitioner in the sum of Rs. 573.74.

(2.) When appeal was taken by the petitioner against the preliminary decree it was dismissed on 14th October, 1970. The petitioner thereafter filed E. P. No. 85 of 1977 for executing the decree against the defendant for costs awarded under the preliminary decree. The objection put forward by the defendant was that the execution petition was barred be limitation since 12 years had expired from 7th September, 1962 which as pointed out earlier was the date of the preliminary decree. This contention was upheld by the learned Subordinate Judge and the execution petition was dismissed.

(3.) In this revision against the dismissal of the E. P. No. 85 of 1977 the learned Counsel for the petitioner urges that the Court below was in error in holding that the period of limitation must be computed from the date of the preliminary decree. He pointed out that the preliminary decree was the subject -matter in appeal, and hence the decree must be treated as having become merged, in the appellate Court's decree. In this submission the period of limitation even for executing the decree for costs under the trial Court's decree is only from the date of the appellate Court decree viz., 14th October, 1970.