(CHALLA) SUBBARAYUDU Vs. (THOOMU) BAPAYYA

JUDGEMENT

(1.) The question for determination in this Civil Miscellaneous Second Appeal is whether Execution Petition No. 693 of 1920 is barred by limitation.

(2.) The facts are briefly these: the 7 counter-petitioner is the appellant and represents the judgment-debtors. The respondent's predecessor-in-interest obtained a mortgage-decree against the judgment-debtors on 2 April, 1907, wherein one month's time was fixed for payment of the mortgage-money. The decree was a preliminary one under Section 88 of the Transfer of Property Act and no order absolute for sale had been passed after the preliminary decree. The First Execution Application No. 505 of 1911 was filed on 11 September 1911. This was more than three years after the passing of the preliminary decree, but the decree- holder stated in it that Rs. 20 were paid out of Court towards the decree and that the same was endorsed on the back of the decree. The petition was dismissed for non-payment of additional batta on 24 October 1911. There were subsequent applications for execution of the decree in 1913 and 1916 which were all dismissed on various dates on account of non- payment of batta.

(3.) The fifth application for execution, Execution Petition No. 751 of 1917, was filed on 13th August 1919. On this application notice under Order 21, Rule 22, Civil P. C., was issued to the judgment-debtors. They did not appear and an order dated 11 February 1918, "proclaim and sell on 10 April 1918" was passed, but no sale took place as by that date a suit had been filed by the counter-petitioner for a declaration that the mortgage-decree obtained by the decree-holder did not affect his rights as the purchaser in execution of his own mortgage- decree and a stay order stopping execution of the decree has been received. The suit was disposed of on 23 October 1920. On 20 December 1920 the respondent put in Execution Petition No. 693 of 1920 for execution which was pending till 23 November 1921, on which date the execution was again stayed by the appellate Court. The appeal was dismissed on 15 February 1922. The respondent then put in on 15 September 1922, another application for restoration of Execution Petition No. 693 of 1920 and it was restored.