TRIBENI PRASAD DHANDHANIA Vs. SITA RAM PODDAR

JUDGEMENT

(1.) A money decree was obtained by the original respondent Ramjivan Pd. Poddar against the appellant on 29-6-I9G2 and it was put in execution case no 54 of 1962. A building was mentioned in the Taluka of the execution petition which was attached. An application under Order 21, Rule 58 of the Code of Civil Procedure was filed by one Hanumandai Devi which was dismissed. The claimant thereafter filed a suit registered as Title Suit No. 27 of 1965 and her claim was ultimately decreed. As a result, the attached property was released and since there was no other property mentioned in the execution petition, the decree-holder filed an application in 1976 for substituting another property. The appellant-judgment-debtor objected to the prayer on the ground of limitation, but the plea has been rejected by both the courts below. He has now come to this Court, reiterating his stand that since the prayer for inclusion of a new property in execution case has been made after 12 years, the same cannot be allowed and the case must be struck off.

(2.) On behalf of the decree-holder, it has been contended that the claimant Hanumandai Devi filed an application for stay of the execution case in her suit, T. S. 27 of 1965, and that an order was passed which remained operative from 2-8-1966 to 19-6-1975 and this period should be available to him. In reply, the judgment-debtor contends that the stay order operated only so far as the property claimed by Hanumandai Devi was concerned and as the decree-holder was entitled to proceed against any other property belonging to the judgment-debtor, the aforesaid period is not available for being added to the period of limitation.

(3.) Mr. S. K. Sarkar in support of the appeal contended that since the stay, granted during the pendency of Title Suit No. 27 of 1965 and the appeal arising therefrom, was limited in terms, the provisions of Section 15 (1) of the Limitation Act cannot come to the aid of the respondent for saving limitation. Reliance has been placed on the decisions in Kirtyanand Singh v. Pirthichand Lal, AIR 1929 Pat 597, Virchand Kapurchand v. Marualappa (AIR 1944 Bom 303), Kundo Mal v. Firm Daulat Ram, (AIR 1940 Lah 75) and Baijnath Pd. v. Nur-singdas, (AIR 1958 Cal 1). He has further argued that the amendment of the execution petition by addition of a new property is also subject to limitation.