C. NARAYANA Vs. RAM REDDY

JUDGEMENT

(1.) THIS second appeal has been filed by the plaintiff against a decree of the lower Appellate Court; whereby the decree of the trial Court has been reversed and the suit for the declaration of certain properties being liable to attachment in execution of a decree dismissed, on the ground that it was time -barred.

(2.) IN order to appreciate the arguments of the learned advocate for the appellants, it is necessary to give certain facts in the case. A judgment in favour of the appellant was pronounced according to a private award and later an execution application was filed. This application was rejected by the first Court on the ground that the order sought to be executed did not create any charge on the properties and the appellant should file a regular suit for enforcing the charge created in his favour by the award. He appealed against the decision and the lower appellate Court reversing the decision about the filing of a fresh suit allowed the appeal. The judgment -debtor thereupon appealed to the High Court and this Court reversing the decision of the lower appellate Court upheld the judgment of the executing Court that a suit should be instituted in order to entitle the respondent in that case to enforce the charge created in his favour. Between the dates of the lower appellate Court decision and its reversal by the High Court, an application to execute the decree passed according to the terms of the award was made and certain properties were thereupon attached. An objection to this attachment was filed which was allowed on Amardad 24, 1346 Fasli: June 29, 1937 A.D. but no declaratory suit was filed to set aside the order. After the decision of the High Court, the appellant filed a suit on the basis of the award and got a decree in his favour on Shehrewar 21, 1347 Fasli: July 27, 1938, A.D. In execution of this decree, he applied for the attachment of certain properties; again objections were raised and allowed on Azur 10, 1350 Fasli: October 15, 1940. Within a year of the allowing of this objection, the present suit for the declaration was filed which the lower appellate Court has held to be time -barred on the ground that this fresh suit was not within one year of the allowing of the prior objections in the execution proceeding, which the High Court has held the appellant not to be entitled to take and directed him to file a suit to give effect to the terms of the award.

(3.) I agree.