PENUMETCHA ANNAPURNAMMA Vs. POLISETTI JAGANNADHAM

JUDGEMENT

(1.) This revision petition is against the order of the District Munsif of Narasapur dismissing the petitioner's application for execution as barred under Art. 182, Clause 5 of the Indian Limitation Act.

(2.) The petitioner obtained a decree in a Small Cause suit on 9 March, 1936. He filed an execution petition, E.P. No. 903 of 1936, on 21 September," 1936, for issue of a warrant for arrest of the judgment-debtor. On 23 September, 1936, an order for arrest was passed, returnable on 20 October 1916. On 21 October, 1936, the following order was passed by the learned District Munsiff of Narasapur: Judgment-debtor not found for arrest. Struck off. The present E.P. was filed on 31 March, 1947, more than 11 years after the order referred to was passed on the previous E.P. Prima facie the petition is barred under Art. 182, Clause 5 of the Indian Limitation Act.

(3.) The learned Counsel for the petitioner argues that the order made on 23 September, 1936, in the terms referred to and the petition having been struck off, it is not a final order, that the E.P. No. 903 of 1936 must be deemed to have been pending and the present execution petition is only a reminder to continue the proceedings in the previous petition and that therefore Section 182, Clause 5 of the Indian Limitation Act does not apply. In support of this contention he relied on Jitmal V/s. Jwala Prasad (1898) I.L.R. 21 All. 155. In that case the decree was dated 2nd December, 1885, and after various in fructuous applications for execution an application was filed on 4 August, 1897, for warrant of arrest of the judgment- debtor. The warrant for arrest was ordered, but, the peon that was sent to arrest the judgment-debtor reported that he concealed himself and in consequence the court strict off the execution application. On 29 November, 1897, the decree-holder again applied for the arrest of the judgment-debtor, but that application also was struck off On 20 February, 1898, without the arrest having been made. Against the order striking off the latter application the decree-holder appealed to the High Court where an objection was taken that the decree could no longer be executed having regard to Section 230, Civil Procedure Code corresponding to Section 48 of the present Code, and, it was held that the warrant of arrest issued on the decreer holder's application of 4 August, 1897, still subsisted and ought to be executed.