NANDIGAMA VENKATA KRISHNA RAO Vs. MULLPUDI GANESWARA RAO

JUDGEMENT

(1.) This appeal, which arises out of execution proceedings is directed against the judgment in A. S. No. 3/68 on the file of the District Judge. West Godavari. The decree-holder is the appellant.

(2.) The appellant filed O. S.No.153/55 against the respondent for recovery of money in the Court of the District Munsif. Tanuku. During the pendency of that suit, he got some immovable properties attached before judgment as belonging to the respondent. The father of the respondent intervened with a claim regarding item 1 of the attached property alleging that it had fallen to his share at a family partition with his son. That claim having been rejected, he filed O. S. 11/57 under Order 21 Rule 63 C. P. C. and obtained an injunction on 21-5-1957 restraining the decree-holder from proceeding with execution against item 1 of the attached property pending disposal of the suit. That suit was decreed on 13-8-1959. The decree-holder carried the matter in appeal to the District Court in vain and the second appeal preferred by hi to the High Court also shared the same fate as it was dismissed on 10-12-1965. During the pendency of those proceedings, the claimant settled all his properties including item 1 of the attached property in favour of his daughter-in-law reserving for himself a life estate. The settle died on 23-11-63 and the father of the judgment-debtor also passed away on 5-8-66 with the result that the disputed property also devolved upon the judgment-debtor by inheritance. The appellant once again applied for execution against the same item of property in E. P. 438/66 on 27-8-66. This petition was resisted by the respondent who filed counter contending inter alia that it is barred by limitation not having been filed within 3 years from the date on which the prior E. P. 318/56 was dismissed. The court of first instance held that the petition in so far as it relates to dispute property (item 1 of the attached property) is in time on the ground that the time during which O. S. 11/57 and the appeals preferred against the judgment and decree therein were pending, has to be excluded computing the period of limitation in view of the provisions of Section 15 of the Limitation Act, which will hereinafter be referred to as the Act. The execution petition was thereafter adjourned for settlement of terms to 11-9-67. In the meanwhile, one Satyanarayana, who appears to have entered into a contract with the judgment-debtor to purchase the dispute property deposited Rs. 3,759-71 Ps. into the executing Court and that Court recorded full satisfaction in the decree on 30-10-1967 as requested by the decree-holder. The respondent thereafter preferred an appeal to the District Court. West Godavari against the decision of the first Court negativing the plea of limitation. The learned District Judge allowed this Appeal as according to him. Section 15 of the Act is not at all attracted to the case since it was ultimately found in the previous proceedings that the judgment-debtor had no title to the property that was sought to be proceeded against by the decree-holder in execution. Hence this second Appeal.

(3.) It is contended for the decree-holder that the appeal itself to the Court below was incompetent as full satisfaction was entered in the decree even before the date of the institution of that appeal and that in any view the learned District Judge went wrong in his conclusion that he is not entitled to the benefit of Section 15 of the Act.