THODKAMALLA VENKATA LAXMI NARAYANARAO Vs. KISHANLAL

JUDGEMENT

(1.) The short question that requires determination in this Miscellaneous Appeal is whether in the Execution petition filed by the appellant the period of limitation will be computed from the date of the original decree or from the date of the decree passed by the appellate court.

(2.) Briefly, the relevant facts for the appreciation of the arguments are as under: The father of the appellant filed a suit in the City Civil Court against four defendants and obtained a money decree on 10th Shahrewar, 1353 F. (1944 AD) against the 1st defendant; the suit being dismissed against the other defendants. The plaintiff went in appeal to the High Court with the prayer that the suit should be decreed against all the defendants; the 1st defendant (respondent herein) was also made a respondent. The appeal was dismissed on 13-11-1956.Thereupon the plaintiff filed an execution petition on 22-8-1957. It was resisted by the Judgment-debtor (respondent herein) as being beyond time and, therefore, inexecutable. The learned City Civil Judge following the decision in Kalyanchand v. Bhogilal, AIR 1923 Bom 400 came- to the conclusion that the execution petition was barred! by limitation and accordingly dismissed the same. The appeal is against this order:

(3.) It is conceded that if the period of time is computed from the date of the original decree viz. 10th Shahrewar, 1353 F. (1944), the execution petition filed on 22-8-1957 is beyond time under Section 48 C.P.C. which lays down that: "Where an application to execute a decree not being a decree granting an injunction has been made, no order for the execution of the same decree shall be made upon any fresh application presented after the expiration of twelve years from - (a) the date of the decree sought to be executed ......"But the contention is that as the appellant has preferred an appeal against the other defendants, against whom the suit had been dismissed and the respondent herein was also a party to the appeal, the time for execution will start to run from the date of the dismissal of the appeal by the High Court i.e., 13-11-1956.