1. The question in this civil miscellaneous second appeal is whether a petition for execution filed by the decree-holder in O.S. No. 64 of 1931 was barred by limitation or not. It was not barred by limitation if it could be regarded as having been filed in continuation of the previous petition in E.P. No. 137 of 1934. It was barred by limitation if that petition had been finally dismissed.
2. The learned District Munsiff of Chodavaram who dismissed the petition expressed the opinion that the facts in the two cases decided by this Court cited before him, viz., Pattannayya v. Pattayya (1925) 50 M.L.J. 215 and Madanapalli Lakshmikantha Nidhi, Ltd. v. Raghunathackarlu : (1943)2MLJ561 were not applicable to the facts with which he was concerned. The learned District Judge on the other hand was of opinion that the two decisions applied and in that view allowed the appeal to him. In E.P. No. 137 of 1934 the property was put up for sale on the 6th December, 1937, but was not sold because there were no bidders. Thereafter on 18th December, 1937, the District Munsiff made an order that the petition was closed. In these circumstances it is clear on the authority of Pattannayya v. Pattayya (1925) 50 M.L.J. 215 that there was no final disposal of the petition so that the execution petition now in question was in continuation of it. This indeed is conceded by learned counsel for the appellant but he argues that the petition should not have been held to be in time because of the inordinate delay in the presentation of it. The petitioner did take a very long time to decide to take any further steps in execution : but mere delay cannot, on the authorities, affect the fact that when the petition now in question was filed-, the previous petition, E.P. Ni. 137 of 1934 must be deemed to have been still pending. That being so the decision of the lower appellate Court was correct and this appeal must be dismissed with costs.
3. Leave refused.