Govinda Menon, J.
1. The facts have been very elaborately stated in the judgment of the lower Court and need not be repeated Here.
The sole question for consideration is whether, pending an application for execution of a decree, if a third party claimant puts in a claim petition on the ground that the properties attached by the decree-holder do not belong to the judgment-debtor, the decree can be executed or whether the pendency of the claim petition operates as stay of the execution of the decree in order to attract the provisions of Section 15(1), Limitation Act.
On the question as to whether for the application of Section 15, Limitation Act, the period of twelve years prescribed under Section 48, Civil P. C., should be deemed to be the period of limitation there has been some controversy.
In -- 'Subbarayan v. Natarajan', AIR 1923 Mad 268 (A), a B ench of this Court has held that the period prescribed under Section 48, C. P. C., is not a period of limitation. This view has not been accepted by the two learned Judges, King and Krishnaswami Aiyangar JJ. in -- 'Kalyanasundaram Filial v. Vythilinga. Vanniar AIR 1939 Mad 270 (B). In a recent Full Bench case in -- 'Kandaswami Pillai v. Kannappa Chetty', : AIR1952Mad186 (C), it has been held that Section 15(1), Limitation Act, is attracted even so far as the period of 12 years prescribed under Section 48, C.P.C., is concerned.
That being so, the only point which we have to decide is whether during the pendency of a claim petition the decree-holder is at liberty to execute his decree. The lower Court has come to the conclusion that he cannot and we agree with the learned Judge.
Firstly when a claim petition is pending the question that the Court has to decide is whether the properties attached belong to the judgment-debtor or not. Without deciding that as a condition precedent, it is impossible to proceed with the execution of the decree against the properties because if execution is proceeded with against those properties, it will be tantamount to a decision that the properties belong to the judgment-debtor while the same question is pending decision in the claim petition. The said procedure would therefore be otiose and meaningless. Therefore the pendency of a claim petition should be deemed to be a stay of the execution of the decree.
In this particular case, the matter is much in favour of the decree-holder for during all this time every year defendants 2 to 4 themselves furnished security for the price of the crops which were attached every year. That being the case, having themselves by their own act tried to create a stay of the execution they cannot now be heard to say that there was no stay.
We are satisfied that in the present case there has been a stay of the execution of the decree and the period from 16-3-1929 to 14-9-1939 that is ten years five months 29 days should be deducted. If that is done the execution of the decree is within twelve years of the passing of the decree and as such the decree can be executed.
2. On the question as to whether Article 182, Limitation Act, applies the learned Judge holds that the present petition is filed within three years of the disposal of the earlier one and there have been sufficient steps taken in aid of the execution. The C. M. A. is dismissed. The costs of this appeal will be decided after we decide C. M. A. Nos. 243 and 244 of 1952 which are adjourned to next Monday.