(BETHAPUDI) TANDAVAMURTI Vs. (BETHAPUDI) DURGAMBA

JUDGEMENT

(1.) This appeal is preferred by the decree-holder in O.S. No. 52 of 1909 on the file of the Temporary Subordinate Court of Gantur against an order of that Court dismissing Ms application for execution of the decree by attachment and sale of immovable properties of the judgment-debtors; The material facts of the case are as follows. The decree in the suit was passed on 27 June 1910. The appellant who had already filed two execution applications which had been disposed of filed execution petition No. 1 of 1921 on 23 December 1920 for the execution of the decree by attachment and sale of the moveable properties of the judgment-debtors. The attachment was effected. Thereupon a claim was preferred to the attached properties by certain third parties. The claim was disallowed and thereafter the claimants brought a regular suit to establish their right to the attached properties. In that suit an injunction was issued directing stay of sale of the attached properties pending the disposal of that suit. The injunction was issued on 29 July 1921, and remained in force till 20th September 1923 when the dissolution of the injunction was communicated to the Court which passed the decree. On 14 March 1924 the decree-holder applied for amendment of the Execution Petition No. 1 of 1921 by adding a prayer for the attachment and sale of the immovable properties of the judgment-debtors. The Subordinate Judge passed an ex-parte order allowing the amendment and directing attachment of the judgment-debtors immovable properties and the attachment was effected on 15 April 1924. On 24 April 1924 the judgment-debtors objected to the attachment of the immovable properties on the ground that the amendment of the execution petition which was allowed ex parte should not have been made. They contended that on the day when the amendment of the execution petition was applied for more than twelve years had elapsed from the date of the decree and that a fresh application for the execution of the decree would be barred under Section 48, Civil P.C., and that the decree holder applied for the amendment of his execution petition with a view to evade the bar of limitation under S. 48, and that his application should not therefore have been allowed. They further contended that his application for attachment of immovable properties cannot be treated as continuation of the pending application which related to moveable properties only. The learned Subordinate Judge has upheld their objections and dismissed the execution petition. In his judgment he says that the order allowing the amendment is ultra vires, as the application for attaching immovable properties could not be regarded as continuation of the pending application which related to execution against the judgment-debtors moveables. He has held also that as on the date of the petition for amendment a fresh application for execution of the decree would be barred both under Article 182, Lim. Act and Section 48, Civil P.C., the amendment should not have been allowed as it would be depriving the defendants of the benefit of pleading limitation.

(2.) This appeal is filed against that order. It is contended before us that the Subordinate Judge erred in holding that the order allowing the amendment was ultra vires, and that he was also wrong in holding that on the date of the application for amendment a fresh application for execution of the decree would be barred either under. Art. 182, Lim. Act or Section 48, Civil P.C., and that in the circumstances of the case the amendment ought to have been allowed. Section 48, Civil P.C., applies to a fresh application for execution of the decree which is put in after the expiration of 12 years from the date of the decree. The section does not apply if the previous application No. 1 of 1921 should be treated as rightly amended while it was pending though the amendment was ordered after the expiry of the 12 years. But if the amendment cannot be allowed and the application was in substance a fresh application for the execution of the decree, then it will be clearly barred under Section 48, unless it is saved by proviso 2 (a) of that section.

(3.) The appellant's vakil wants to argue that the case is saved by the said proviso as the judgment-debtors by fraud prevented the execution of the decree. But we find that this case was not put forward in the lower Court, nor has this ground been raised even in the memorandum of appeal before us. We cannot therefore allow him to raise that point at this stage. The appellant's vakil, however, contends that for computing the 12 years prescribed in Section 48, Civil P.C., the period during which the execution of the decree was stayed by injunction should be excluded and if that is done, the application is within 12 years. We are unable to accept this contention as correct as in our opinion Section 15, Lim. Act, applies only to the periods prescribed in the schedule to that Act and does not apply to the period of limitation prescribed by Section 48, Civil P.C. The article applicable to the execution of the decree is Art. 182 and that article itself excludes in express terms from its scope the operation of Section 48, Civil P.C. The view we take is in conformity with the decision in Subbarayan V/s. Natarajan A.I.R. 1922 Mad. 268. Whether apart from the applicability of Section 48, Civil P.C., and assuming that that section does not apply, the application for amendment viewed as a fresh application would be saved from the bar under Art. 182 by Section 15, Lim. Act, is not a question which is free from doubt or difficulty. When an injunction stays the execution of a decree against certain attached properties, it will be quite open to the decree-holder to execute his decree against other properties of the judgment- debtor or against his person and if so we do not see how he can claim the benefit of Section 15, if he wants to proceed against other properties. It is, however, unnecessary in this case to express a definite opinion on this point on which there seems to be some conflict of authority as even if the application is not barred under Art. 182 it will be barred under Section 48, Civil P.C.