Anantanarayana Ayyar, J.
1. The appellant, Cherukuru Brahmiah, feels aggrieved with the order of the learned Additional District Judge. Nellore in A. S. No. 18 of 1961 on his file.
2. The relevant facts are as follows:
Cherukury Brahmaiab, obtained a money decree in O. S. No. 4 of 1956 on the file of the Sub Court, Kavali thereinafter referred to for convenience as Kavali decree) against Kurapati Chelwapilla Setti and some others. Setty also obtained another money decree against Brahmaiah in O. S. No. 5 of 1956 on the file of the Sub-Court, Nellore (hereinafter referred to for convenience as Nellore decree). An appeal judgment, which was final as regards the Kavali decree, was pronounced on 31-12-1956. Consequently, the last date for filing E. P. regarding that decree was 31-12-1959. Brahmaiah filed E. P. No. 57 of 1980 in execution of that Kavali decree on 22-3-1960. He had not taken any execution before, though the period of three years from the date of the appellate judgment had expired on 31-12-1959. His contention was that limitation was saved for various reasons connected with execution proceedings in the Nellore decree. On 13-2-1957. Setty filed E. P. No. 43 of 1957 (Ex. A-1) in the Sub-Court, Nellore in which be prayed for attachment of Kavali decree, for substitution of himself as decree-holder in the Kavali decree and to enable him to execute that decree in the Kavali Court, as specified in E. P. No. 49 of 1957. The learned Subordinate Judge, Nellore passed an order on 22-2-1957 (Ex. A-2) attaching the decree. In pursuance of the order, he issued a notice (Ex. A-2) as follows:
You are therefore requested to stay the execution of the decree of your Court until you receive an intimation from this Court that the present notice has been cancelled or until execution of the said decree is applied for by the holder of the decree now sought to be executed or by his judgment-debtor.'
Brahmaiah did not file any counter or raise any objection. On 13-3-1957, the learned Subordinate Judge, Nellore closed the E. P. with an order as follows:
'Attachment effected. Petition closed.'
Subsequently, on 10-2-1960, Setty filed E. A. no. 47 of 1960 in O. S. No 5 of 1956 (Ex. A-3) in the Sub-Court. Nellore saying that the plaintiff in this case had given up the attachment which had been made of the Kavali decree and praying for trans-fer of his decree (Nellore decree) to the Sub-Court, Kavali for execution against Brabmaiah's properties. In that E. A. No. 47 of 1980, Brah-maiah filed a counter raising various objections. But, all the same, the learned Subordinate fudge passed an order in E. A. No 47 of 1960 on 28-6-1960 ordering the transmission to the Sub-Court, Kavali, and leaving open the various questions raised by Brahmaiah in his counter.
3. Meanwhile, Brahmaiab filed on 22-3-1960 E. P. No. 57 of 1960 in the Kavali Court in execution of his decree (Kavali decree) claiming only the amount due under the decree after setting off the amount which was due by Brahmaiah to Setty under the Nellore decree. The Kavali decree was personally against Setty and against joint family property in the hands of all the judgment-debtors. In E. A. No. 57 of 1960, Brahmaiah impleaded four respondents namely, defendants 1, 3, 4, 5, in O. S. No. 4 of 1956. They were judgment-debtors. Of them R-1 is Setty. Contention was raised by the respondents that the decree was barred by limitation. But, Brahmaiah contended that limitation was saved. The learned Subordinate Judge held that the decree was barred by limitation and dismissed the E. P. Brahmaiah filed A. S. No. 18 of 1961 before the learned Subordinate Judge, Nel-lore. The appeal was heard by the Additional District Judge who confirmed the finding of the learned Subordinate Judge and dismissed the appeal.
4. The contentions, which are raised in the lower Courts, were as follows:
1) That limitation was saved under S. 15 of the Limitation Act because of the order (Ex. A-2) which had been passed by the learned Subordinate Judge which amounted to stay of execution.
2) That limitation was saved because of acknowledgments made by Setty in Ex. A-1 and Ex. A-3.
3) That the petitioner was entitled to an equitable set-off.
The learned Additional District Judge rejected all the contentions. Those contentions have been raised before me also. In addition, a fourth contention is also sought to be urged namely, that Brahmaiah is entitled to the benefit of Section 18 of the Limitation Act on the ground that there was fraud committed by Setty.
5. Contention No. 1 :- This is the main con-tention. Section 15 of the Limitation Act runs as follows:
''(1) In computing the period of limitation prescribed for ..... the execution of a decree, the institution or execution of which had been stayed by ..... order the time of the continuance of the order ..... shall be excluded.'
The question is which the execution of the Kavali decree was stayed by the order (Ex. A-2) dated 22-2-1957. If it amounted to a stay order for the purpose of Section 15, then beyond doubt, the E. P. would be saved by limitation by exclusion of the period from 22-2-1957 to 10-2-1960. The order (Ex A-2) has already been extracted in this judgment. On a similar order passed by the Collector, a Division Bench of this Court in Soorayya v. Mallayya, : 28ITR362(AP) relying on the decisions in Kadimcherja Raju v. Kondapi Ayyapa Raju, AIR 1935 Mad 352 and Channabasappa Nagappa v. Holibasappa Basappa, AIR 1924 Bom 383 and Saroj Ranjan Sinha v. Joy Durga Dassi, AIR 1934 Cal 140 observed as follows (at p 232)
'It will be seen from the aforesaid decisions that the scope of the provisions of Section 15, Limitation Act, is confined only to an absolute stay granted by Courts The principle underlying this section is apparent It the execution of the decree was stayed, it would be an unnecessary burden on the decree-holder and an empty formality if he should be compelled to file execution application at the risk of his decree otherwise being getting barred. A decree, which has been stayed, cannot obviously be executed. So, under this section, the period covered by the stay order is allowed to be excluded from the period of limitation.
That reason cannot hold good it the decree-holder, or his representative, is not prevented from executing the decree. If he has a right to executethe decree and has failed to exercise that right it can only be at his own risk. Under Order 21, Rule 53, the attaching Court requests the Court which passed the decree attached, to stay execution of the decree until the Court which passed the decree sought to be executed cancelled the notice, or, the holder of the decree sought to be executed or his judgment-debtor applies to the Court receiving such notice to execute its own decree. Under that rule, the Court's hands are stayed. But both the holder of the decree sought to be executed (in this case, Setty) and the holder of the decree attached (in this case, Brahmaiah) can, it they choose, execute the decree. Their right to execute the decree was not in any way affected by the stay order
Following the aforesaid decisions, we hold that an order made under Order 21, Rule 53 Civil Procedure Code by the attaching Court was not a stay order contemplated by Section 15. Limitation Act.'
The brackets and words within them are mine.
6. In the present case, the learned Counsel for the Appellant, contends that the Executing Court i. e., Nellore Court, in execution of E. P. No. 49 of 1957, was bound to follow Rule 177 of the Civil Rules of Practice and Form No. 64 which are appropriate to this particular E. P. Rule 177 runs as follows:
'An application for the attachment of a decree shall also pray that applicant may be at liberty to apply for execution thereof. It an order of attachment is made, it may be as in Form No. 63 or 64 and the application shall be adjourned to a fixed day for the applicant to apply to the Court or it the decree of another Court is attached, to that Court for execution of the attached decree; and notice may, it the Court thinks fit, be given to the holder of the decree .....'
Form No 64 runs as follows:
'Rule 177 -- Attachment of a decree of another Court.
Judge of the Court of
The plaintiff having applied under Order XXI,Rule 53 of the Code of Civil Procedure for theattachment of a decree of your Court dated theday of and made in OriginalSuit No. of wherein the above-named CD was plaintiff and EF was defendant,I request that you will abstain from executing thesaid decree until this notice is cancelled by theCourt.
I have the honour to be;
Sir Your most obedient servant
dated the day of 195'Order 21 Rule 53 (1) (b), prior to the MadrasAmendment of 1937, ran as follows:-
'Where the property to be attached is a dec-ree either for the payment of money or for sale in enforcement of a mortgage or charge the attachment shall be made .....
(b) it the decree sought to be attached was passed by another Court, then by the issue to such
other Court of a notice by the Court which passed the decree sought to be executed, requesting such other Court to stay the execution of its decree unless and until--
(i) the Court which passed the decree sought to be executed cancels the notice, or
(ii) the holder of the decree sought to be executed or his judgment-debtor applies to the Court receiving such notice to execute the attached dec-
7. In AIR 1935 Mad 352 it was held that a stay under this rule (as it stood then before the amendment which came later in 1939) was a limited one and it did not put an end to the rights of either the judgment-creditor or the judgment-debtor which, within the plain terms of the order issued under this rule, they were entitled to do and that the decree, therefore, remained stayed, for just so long as the judgment-creditor or the judgment-debtor chose not to apply for execution. After that decision, on 20-10-1937, this rule (ii) was substituted in Madras by another rule in which the substantial change was by introducing between the judgment-debtor and the word 'applies' the following:
'If he has obtained the consent in writing at the decree-holder or the permission of the attaching Court.'
That amended rule has been in force in Andhra and Andhra Pradesh. Substantially, similar amendments were made in Calcutta, Madhya Pradesh, Patna and other States. In spite of the amendment, Form No. 22 in Appendix (E) continued to be the same as it had been before the amendment and it is in this form that the notice (Ex A-2) in the instant case has been issued. Apparently, it was thought that this form could continue to be as it was, because as per the amended rule i. e., substituted rule, a judgment-debtor could apply for execution only if he had obtained the consent in writing of the attaching decree-holder or the permission of the attaching Court and it was considered sufficient to ensure the operation of the attachment unless the above provisions of amended Order 21 Rule 53 (1) Civil Procedure Code were followed.
8. The learned Advocate for the appellant contends that the procedure prescribed in Rule 177 of the Civil Rules of Practice ought to have been followed by the Nellore Court in E. P. No. 49 of 1957 and that Form No. 64 ought to have been adopted and that that Court erred in not following those provisions. Form No 64 of course is prescribed under Rule 177. The substantial difference of that Form from Form 22 under Appendix (E) is that the Form 64 does not contain the provision 'or until execution of the said decree is applied for by the holder of the decree now Bought to he executed or by his judgment debtor' In effect, Form 22 incorporates provisions (i) and (ii) of Order 21 Rule 53 (b) whereas Form No. 64 incorporates only provision (i) but not provision (ii). Form 22 is based on the wording of Order 21 Rule 53 Civil Procedure Code itself. Order 48 Rule 3 Civil Procedure Code provides as follows:
'The forms given in the appendices, with such variation as the circumstances of each case may require, shall be used for the purposes therein mentioned.'
Rule 177 of the Civil Rules of Practice cannot have greater force than Order 21 Rule 53 itself and Form 64 in the Civil Rules of Practice cannot be said to have greater sanctity than or entitled to preference over Form 22 in Appendix (E). The fact that Form 64 does not incorporate provision (ii) of Order 21 Rule 53 (b) does not mean that the holder of the decree sought to be executed or the judgment-debtor lost his rights under that provision. R. 177 of the Civil Rules of Practice only provides as to what is to be done by a decree-holder who attaches a decree and what is to be done by Courts in that connection. Rule 177 does not touch or affect the right of the judgment-debtor to apply for execution of attached decree or his corresponding obligation to obtain consent in writing of the attaching decree-holder or permission of the attaching Court Form No. 65 under Rule 177 of the Civil Rules of Practice is a form of cancellation of the prohibition of execution of attached decree contained in original notice under Form 64 so far as execution by attaching decree-holder is concerned. Form 23 in Appendix (E) in Civil Procedure Code is a notice to judgment-debtor under Order 21 Rule 53 Civil Procedure Code. It restrains him from transferring or charging his decree until further order of the attaching Court. There is no inconsistency or conflict between Order 21 Rule 53 Civil Procedure Code and Rule 177 of the Civil Rules of Practice or between the forms under Order 21 Rule 53 in Appendix (E) and the Forms under Rule 177 of the Civil Rules of Practice.
9. In the present case, there is a peculiar position in that if Setty were to be allowed to apply for execution of the Kavali decree as decree-holder, then he would be a decree-holder to execute the decree against himself as a judgment-debtor who was personally liable and against the properties of joint family of which he is said to be the manager. So the obvious course for Setty, if he wanted the Kavali decree to be effectively executed, is to himself pay the amount to the credit of Brahmaiah in the Kavali decree. That, Setty did not do and did not want to do. That is why probably he was not aggrieved with the order passed by the Nellore Court in E. P. No 49 of 1957. But, in any case, on the notice in Form No. 22 as issued, the order of attachment was not an order of absolute stay
10. Taking into account, the words which were added in Order 21 Rule 53 (1) (b) by amend-ment of 1939, the stay was not absolute. For, it was open to Brahmaiah to apply to the attaching Court namely. Sub-Court Nellore for permission to execute the Kavali decree. It is not possible to hold that if he had filed an application for permission, the Sub Court Nellore would have dismissed such application especially because his Kavali decree was greater in amount than the Nellore decree which Setty held against him (Brahmaiah) in O. S. No. 5 of 1956. As the stay was not absolute the principle of the decision in : 28ITR362(AP) applies to this case. Consequently,Brahmaiah is not entitled to the benefit of Section 15 of the Indian Limitation Act. So this contention fails.
11. Contention No. 2: In Ex. A-3 dated 10-2-1960, Setty has not stated that the Kavali decree was in force and not barred by limitation or that it was executable against him or other judgment-debtors. So, this Ex. A-3 does not amount to an acknowledgment. I agree with the finding of the learned Additional District Judge that the prayer in E. P. No. 49 of 1957 (Ex. A-1) cannot be treated as an acknowledgment. So, this contention is not tenable.
12. Contention No. 3 :- I see no reason to disagree with the finding of the lower Courts that equitable set-off cannot be allowed in the present case.
13. Contention No, 4 :- This contention of fraud was not raised in either of the lower Courts. But, all the same, the facts on record do not show that there was any fraud on the part of Setty. Anything and everything done by Setty could not and did not prevent Brahmaiah availing himself of his right to apply to the Nellore Court (attaching Court) for execution of the Kavali Decree against Setty.
14. In the result, I find no reason to disagree from the finding of the lower Courts and I dismiss the appeal. Considering the circumstances of the case, I direct each party to bear its own costs throughout. No leave.