SADASHIV BUSAPPA Vs. RAJA KISHTAPPA NAIK

JUDGEMENT

(1.) THIS is an appeal against the judgment and order of execution Court, where -by an execution application dated 23rd Ardibehist 1353 Fadi (27th March 1914 A.D.) has been held to be barred under Section, 262, Hyderabad Civil P.C. The section like Section 48, Indian Civil P.C., provides that no order for execution of a decree shall be made upon any fresh application presented after the expiration of twelve years from the date of the decree. The application seeks execution of a money decree passed on 10th Ardibehist 1329 Fasli (14th March 1920 A.D.) and has been filed exactly twenty four years and thirteen days after that date. It says that the previous application was dismissed for failure to pay process fee on 2nd Aban 1351 Fasli (7th September 1912 AD), that one of the two decree holders has since died leaving as legal representatives a minor son and a wife, they be brought on record and execution proceedings be started. It contains no specification of the property which is to be attached, but mentions that such a list was previously filed and further specification will be given at the time of the passing of attachment order. On 29th Aban 1353 Fasli (4th October 1944 A.D) the Court after taking evidence, ordered the representatives of the deceased decree holder, who were then shown to include two more minor sons, to be brought on record. On the same date, it ordered attachment, but the list of property promised was not furnished till a later date. This list contains property not covered by the previous list. The judgment -debtor raised objection that the present application being fresh one and being after twelve years from the date of the decree, no execution can now be ordered, he also objected to the wife being substituted as a legal representative when there were three minor sons of the deceased. In a rejoinder to the decree -holders' reply, these objections were amplified that the properties now sought to be attached were different to properties mentioned in the previous application and the application was not a proper one as it mentioned no property. The decree -holders' replies to these objections were -that a similar objection was previously rejected and the present application is not a fresh application.

(2.) THE execution Court has held that the decree holders had for the first time applied for attachment of property in their application of 15th Farwardi 1347 Fasli (16th February 1938 A.D.) which was admittedly twelve years after the date of the decree, the present application was therefore, barred, and further the principle of res judicata did not apply.

(3.) BEFORE deciding these questions, it is necessary to refer to some more facts of the case. There have been three execution applications by the decree -holders after twelve years from the date of the decree The first of the three is dated 15th Farwardi 1347 Fasli (16th February 1938 A.D.), and in it the decree -holders for the first time prayed for attachment and sale of judgment -debtors' movable and immovable property. Before it they wore trying to attach his jagir income and house. A notice appears to have been served on the judgment -debtor, but he failed to appear, and thereupon attachment of property was ordered. As the decree -holders did not deposit the necessary process fee, this application was dismissed for default on 11th shehrewar, 1347 Fasli (17th July 1938 A.D.) Within three years from this dismissal Anr. application was field on 7th Azur 1350 Fasli (12th October 1910 A.D.). It prayed for attachment of property specified in the list annexed to the application, A notice was served on the judgment -debtor and this time he filed objection in which he specifically raised the plea of the application being barred because of the twelve years rule. His Vakil, however, did not appear, and on 29th Shehrewar 1351 Fasli (4th August 1942 A.D.) the execution Court hold that as money had been paid before, and as execution had continued without any plea of limitation, the plea cannot be raised it, therefore, ordered attachment. 'This application was also dismissed on 20th Aban 1351 Fasli (25th September 1912 A.D.) for nonpayment of process fee. Within three years of this order the present application has been filed and this time the lower Court has held that the above application was barred and the earlier decisions did not operate as res judicata. I am of opinion that the decision cannot be upheld.