G RAMACHANDRAIAH CHETTY Vs. STATE OF ANDHRA

JUDGEMENT

(1.) The question that poses itself in this appeal is whether the institution of a suit to vacate an order under Order 38, Rule 8 C. P. C. would proprio vigore operate in favour of the decree-holder to enable him to exclude the time contemplated by Section 15 of the Limitation Act.

(2.) The facts leading to this Civil Miscellaneous Appeal are not in dispute and lie in a narrow compass. The respondent filed a suit against the appellant for recovery of a sum of Rs. 14,680.00 and also applied for attachment before judgment of certain properties as belonging to the appellant. One of the items of property attached was claimed by his wife as her own and not as part of the property belonging to the appellant. The claim was disallowed in 1953. Ultimately, a decree was entered in favour of the plaintiff-respondent on 21-11-1953. Meanwhile, the appellants wife raised an action under Order 21, Rule 63 C. P. C. to vacate the order made by the trial Court under Order 38, Rule 8 C. P. C. The suit was dismissed on 7-3-56. An appeal was taken against this judgment to the District Court, Chittoor in A. S. No. 116 of 1956, which was dismissed on 8-3-1957. The second appeal carried by the unsuccessful party shared the same fate. But, pending this appeal, a conditional order of stay of execution of the decree was made by this Court on 27-8-1957. The stay was dissolved on 6-10-1958 as the condition was not fulfilled. During the pendency of the second appeal, the decree-holder took out execution on 11-7-1960.

(3.) The petition was resisted by the judgment-debtor chiefly on the plea that the execution petition was barred by limitation, as no E. P. was presented within three years of the passing of the decree as required by Article 182 of the Limitation Act.