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Papiahachary Vs. Gurusamappa and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. No. 69 of 1952-53
Judge
Reported inAIR1954Kant149; AIR1954Mys149; (1955)33MysLJ58
ActsLimitation Act, 1908 - Sections 20 - Schedule - Articles 181 and 182
AppellantPapiahachary
RespondentGurusamappa and ors.
Appellant AdvocateY. Adinarayan Rao, Adv.
Respondent AdvocateH. Nanjunda Sastry, Adv.
Excerpt:
limitation - barring of execution petition - articles 181 and 182 of limitation act, 1908 - execution application of petitioner whether barred by time under consideration - court observed that where execution application dismissed for statistical purposes on ground that execution stayed or dismissed for no fault of decree-holder then first application after bar removed must be treated as application for revival of previous execution case stayed or dismissed and not fresh execution application for purposes of articles 181 and 182 - court however observed that contents of two execution applications ought to be same and if different then to extent of being different second application ought to be treated as fresh execution case -second execution application of petitioner found to be barred..........in execution case no. 976 of 41-42 certain movables and immoveables were attached but the execution application was dismissed as being old and the attachment was ordered to subsist. in execution no. 84 of 43-44 the movables attached in the previous execution case were sought to be sold. but a third person one venkatachalam, who is not the judgment-debtor, filed a suit in o. s. no. 224 of 43-44 claiming that the movables attached are his and got an order to stay sale of the movables sought to be sold in that execution case. the result was that the execution application was dismissed as there was no prayer in that execution application for proceeding against the judgment-debtor in respect of any other property or by his arrest. thereafter o. s. no. 224 of 43-44 was dismissed for.....
Judgment:
ORDER

1. The short point for consideration in this revision petition is whether Execution Application No. 889 of 48-49 on the file of the Court of Small Causes, Bangalore, filed on 23-12-1948 is in time or whether it is barred by time. The decree which is sought to be executed was passed on 10-6-1940. In Execution Case No. 976 of 41-42 certain movables and immoveables were attached but the execution application was dismissed as being old and the attachment was ordered to subsist. In Execution No. 84 of 43-44 the movables attached in the previous execution case were sought to be sold. But a third person one Venkatachalam, who is not the judgment-debtor, filed a suit in O. S. No. 224 of 43-44 claiming that the movables attached are his and got an order to stay sale of the movables sought to be sold in that execution case. The result was that the execution application was dismissed as there was no prayer in that execution application for proceeding against the judgment-debtor in respect of any other property or by his arrest. Thereafter O. S. No. 224 of 43-44 was dismissed for default on 30-11-1944.

Then the decree-holder filed Execution Case No. 459 of 44-45 for proceeding with the sale of the movables already referred to but this was dismissed on 6-3-1945 on account of default of the decree-holder to pay process fee and to file a copy of the attachment list. The original suit was, however, restored to file on 20-12-1946 and ended in a compromise decree on 17-2-1948. According to the compromise the claimant paid Rs. 140/- with the result that the attachment of the moveables is raised and his claim to the same is allowed. The decree-holder then filed Execution 889 of 48-49 on 23-12-48 for arrest of the judgment-debtor and for attachment of other movables. It will be noticed that this execution application is not only beyond three years from 21-12-1943 on which Execution Case No. 84 of 43-44 was dismissed but also more than 3 years from 6-3-1945 on which Execution No. 459 of 44-45 was dismissed. The Execution Application No. 889 of 48-49 is on the face of it barred by time.

2. It has however to be observed that it has been established by a long series of cases in our High Court that where an execution application is dismissed for statistical purposes on the ground that execution has been stayed or dismissed for no fault of decree-holder the first execution application after the bar is removed in case it had been stayed, must be treated as an application for a revival of the previous execution case dismissed for statistical purposes and not as a fresh execution application for purposes of Articles 181 and 182, Limitation Act. We need refer only to -- 'Venkate Gowda v. Mudli Setty', 19 Mys LJ 82 (A) and the case law referred to in it.

3. It is contended that since Execution No. 84 of 43-44 was stayed pending decision in O. S. No. 224 of 43-44, and that case must be deemed to be pending till it was disposed of by compromise on 17-2-1948, the period between the stay and the compromise must be excluded. What was stayed however is sale of moveables sought to be sold in Execution No. 84 of 43-44 and the decree-holder was not prevented by any stay order from proceedings against the other properties of the judgment-debtor or by his arrest. As such, while a fresh execution application after the stay order ceased to be operative, for proceeding with execution of the decree to the extent the stay order had come in the way of execution of the decree may be taken as a revival of the old execution case, it cannot be said that an execution application for execution of the decree to the extent the stay order did not come in the way of its execution, is a revival of the old case and that it is not governed by Articles 181 and 182 if it is filed beyond time as provided in those articles.

4. When an execution application is dismissed for statistical purposes as, for instance, on the ground that it is one year old, though the decree-holder is diligent, it is contended that it is open to him to file a fresh execution application to continue the previous execution application dismissed for no fault of his. The new application filed to revive the old proceedings is not barred though it is filed more than 12 years after the decree but this contention is correct only to the extent that the new application seeks relief claimed in the previous execution application dismissed for statistical purposes. If there is a fresh prayer, the new application must be treated as a fresh application to that extent. In this case the contention, would have been held good in case the prayer in Execution 459 of 44-45 was the same as the prayer in Execution No. 889 of 48-49 as in such cases it may have to be taken that the disposal in the previous case is for statistical purposes and the later execution application in which the same prayer is made is a continuation of the previous execution application dismissed for statistical purposes. In this case, however, attachment of the moveables for the sale of which Execution No. 84 of 43-44 was filed is not sought. In fact the attachment of those moveables has been raised. What is sought is the attachment of other moveables of the judgment-debtor, i.e., the prayers in the two execution applications are not the same though they are similar. It cannot therefore be said in any sense that Execution No. 889 of 48-49 can be taken as a continuation of Execution No. 84 of 43-44 even if it is deemed that the disposal of that execution case is merely for statistical purposes. Then again there is now a prayer for arrest of the judgment-debtor and in respect of this prayer it cannot be said that it is even similar to the prayer made in Execution No. 84 of 43-44. It was also contended that Execution No. 975 of 41-42 was disposed of for statistical purposes. It is admitted that the prayer in that case was for attachment of certain immoveables and for attachment and sale of moveables already referred to. As such, the present execution application, i.e., Execution No. 889 of 48-49 on the file of the Court of Small Causes, Bangalore, in which the relief sought is attachment and sale of other moveables and arrest of judgment-debtor can, under no circumstances, be deemed to be a continuation of Execution No. 975 of 41-42 in which no such prayer had been made. As the prayer in the present execution application is totally different from the previous execution applications, the contention of the decree-holder that the present execution application must be deemed to be a continuation of either Execution No. 84 of 43-44 or of 975 of 41-42 fails.

5. There is only one other contention raised on behalf of the decree-holder for the purpose of showing that the execution application under consideration is in time. It is contended that a sum of Rs. 140/- has been paid by the plaintiff in O. S. No. 224 of 43-44 and that payment must be deemed to be the payment on behalf of the judgment-debtor for purposes of Section 20, Limitation Act. In the first place this point has not been relied upon in the execution application and in the second place it cannot be said under any circumstances that the claimant is an agent of the judgment-debtor and in fact their interests are adverse to each other. Moreover, no allegation is made and no attempt is made to prove that payment is either towards the interest or towards the principal and that the payment has been evidenced by an acknowledgment in the hand-writing of, or in a writing signed by, the person making the payment.

6. On the whole there is no substance in anyof the contentions raised by the decree-holder.The lower Court was right in holding that theexecution application is time barred. This revision petition is therefore dismissed with costs.

7. Revision dismissed.


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