BAYYA NAIKO Vs. DESETTI KRUPA

JUDGEMENT

(1.) This appeal concerns a question of limitation. The preliminary decree in the mortgage suit was passed on 19 April 1911. The final decree was made on 24th April 1914. E.P. No. 931 of 1922 was admittedly put in on 8 August 1922 within time. This execution petition reached a certain stage when sale had been applied for and fresh schedule and affidavit were filed. The order on 3 March 1923 was "for settlement of proclamation 7 March 1923." The next order was "Proclaim and sell on 18 June 1923. Final hearing on 25 June 1923." This order was dated 7 March 1923. Meanwhile an appeal had been filed as regards defendant and an order staying execution had been passed, which was dated 6 March 1923, by the District Court of Ganjam and received on 9 March 1923. On this date when the stay order was received the order is "call on 28 instant." On 28th March 1923 the entry is "No final order received from District Court. Await 16th April." The last order is on 16 April 1923: No final orders received from District Court. Appeal intimation received. Await final orders by 5 May. Meanwhile send up material papers for purposes of appeal.

(2.) The appeal was disposed of on 21 November 1924. The present petition was filed on 8 April 1927 to continue the previous execution petition. The trial Court did not accept the argument that this execution petition was a continuation of the previous proceedings and dismissed the execution petition. The Subordinate Judge held it was an application to continue the proceedings on which no final orders had been passed and against this order this appeal has been preferred. Subbaroyan v. Natarajan AIR 1922 Mad 268 has been quoted for the appellant. But the applicability of this depends on the question as to whether this was a fresh execution application. It seems to me clear that it was not a fresh execution application. A good deal of argument has been addressed to me for the appellant on the point that the decree-holder did not take steps within reasonable time after the disposal of the appeal on 21 November 1924. Chhatar Singh V/s. Kamal Singh is exactly a case of the present sort. It was there held that a petition like the present is a petition to revive the previous execution application and that in default of any specific section or article of the Limitation Act the general Art 181 applies so that a decree-holder has three years from the date on which stay came to an end. I see no reason for dissenting from this view and it gives a clear cut period of limitation instead of depending on what may be called reasonable diligence which is a more insuperable test. The Allahabad case is a stronger one than the present because the petition there had been struck off. Admittedly no final orders have been passed in the present case on the execution petition. It has been argued that the decree-holder should have appeared on 5 May 1923. In the first place from the context the order Await final orders by 5 May" seems to be addressed to the office because it is followed by "meanwhile send up papers for the purpose of appeal."

(3.) There is nothing to show that this was an order to the petitioner. In the next place so long as the stay continued, the decree-holder could not take any further step whatsoever in execution and therefore I think he committed no default by not turning up on 5 May. At any rate there is no such default as would have justified the petition being dismissed. In my opinion the view in Chhattar Singh V/s. Kamal Singh applies to this case and the decree-holder had three years from 21st November 1924 within which to apply for revival of the execution petition. It was argued that there is no such provision in the Code to revive a petition. If that is so it would appear that the decree-holder is in a better position as regards limitation for, in that case the execution petition automatically revives and as the petitioner had been given no date by the Court on which to appear, it would not seem that it could either be dismissed, nor there would be any period of limitation whatsoever running against him. In my opinion, the order of the lower appellate Court is correct. The appeal is dismissed with costs.