BALABHADRA SADANGI Vs. RADHA KRISHNA PATNAIK

JUDGEMENT

(1.) THIS is an appeal from the judgment of the District Judge of Berhampur reversing the judgment of the Munsif of Aska and dismissing the execution petition of the appellant, decree -holder on the ground that it was time -barred.

(2.) THE decree was obtained against one Michu Patnaik who is now dead. The first execution was E, p. No. 22 of 1945 filed against the said Michu Patnaik on 8 -1 -45 and closed on 24 -1 -45. The second execution was E. P. No. 40 of 1948 filed on 21 -1 -48 against the said Michu Patnaik and closed on 27 -1 -18. The third execution (E. P. No. 30 of 1951) Was filed on 11 -1 -51 against the legal representatives of the said Michu Patnaik and closed on 10 -4 -51. The present execution (E. P. No. 242 Of 1951) was filed on 5 -5 -51 against the legal representatives of the judgment -debtor. It is admitted that Michu Patnaik died on 12 -1 -48 prior to the filing of the second execution petition (E. P. No. 40 of 1948).

(3.) THERE is a sharp conflict in the judicial decisions on this question and these have been summarised at page 2771 of Chitaley's Limitation Act, 3rd edition. The Madras, Calcutta, Bom -bay, Patna and Lahore High Courts seem to have taken the view that such an execution petition would be a step -in -aid and that limitation would therefore be saved. See - - 'Samia Filial v. Chockalinga Chettiar', 17 Mad 76 (A) ; - - 'Parakkat Devaswom v. Venkatachalam', AIR 1926 Mad 321 (B) ; - - 'Chinnan Chettiar v. Sivaganga Estate Manager', AIR 1949 Mad 348 (C) ; - - 'Bipinbehari Mitter v. Bibi Zohra', 35 Cal 1047 (D) ; - - 'Abdus Sattar v. Mohini Monan, AIR 1933 Cal 684 (E) ; - - 'Gopal v. Raising' AIR 1934 Bom 266 (F) ; - - - -Puran Mall v. Mt. Dilva', AIR 1924 Pat 333 (G) ; - - 'Sheogobind Ram v. Mst. Kishunbansl Kuer', AIR 1932 Pat 222 (H) and - - 'Maula Bakhsh v. Mohammad Ikram', AIR 1934 Lah 55 (I).