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Surisetti Rama Subbayya Vs. Palur Thimmiah and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai
Decided On
Reported in(1941)2MLJ754
AppellantSurisetti Rama Subbayya
RespondentPalur Thimmiah and ors.
Cases ReferredHansraj Gupta v. Official Liquidators of Dehra Dun
Excerpt:
- - 1. the only question to decide in this appeal is whether an application for execution presented by the decree-holder more than three years after the dismissal of his first petition can be, in view of the pendency of a subsequent declaratory suit which he had brought to get rid of an order made by the executing court accepting a third party's claim petition, held to be within time in spite of the fact that the suit instituted by the decree-holder challenging the validity of the order of the executing court had failed. if the order accepting the claim petition and cancelling the attachment is to become final only on the dismissal of the suit brought against the third party claimant and the execution application in which the order had been passed in his favour is to be deemed to.....abdur rahman, j.1. the only question to decide in this appeal is whether an application for execution presented by the decree-holder more than three years after the dismissal of his first petition can be, in view of the pendency of a subsequent declaratory suit which he had brought to get rid of an order made by the executing court accepting a third party's claim petition, held to be within time in spite of the fact that the suit instituted by the decree-holder challenging the validity of the order of the executing court had failed. this would depend on the decision as to the character and effect of the order of dismissal passed by the executing court on accepting the objections raised by the third party to the attachment and on the question whether the declaratory suit can be regarded to.....
Judgment:

Abdur Rahman, J.

1. The only question to decide in this appeal is whether an application for execution presented by the decree-holder more than three years after the dismissal of his first petition can be, in view of the pendency of a subsequent declaratory suit which he had brought to get rid of an order made by the executing Court accepting a third party's claim petition, held to be within time in spite of the fact that the suit instituted by the decree-holder challenging the validity of the order of the executing Court had failed. This would depend on the decision as to the character and effect of the order of dismissal passed by the executing Court on accepting the objections raised by the third party to the attachment and on the question whether the declaratory suit can be regarded to be a step in aid of execution of the decree within the meaning of that expression as used in Article 182, Sub-clause 5 of the Limitation Act. If the order accepting the claim petition and cancelling the attachment is to become final only on the dismissal of the suit brought against the third party claimant and the execution application in which the order had been passed in his favour is to be deemed to remain pending in spite of its dismissal by the executing Court or if the steps, consisting of the institution of a declaratory suit questioning the correctness of the order passed in execution and on its failure of carrying the matter in appeal, taken by the decree-holder to remove the obstructions caused to him by the third party in raising objections to the attachment successfully, despite their failure to achieve the desired result, can be regarded to have been taken 'in continuation of the execution proceedings in such a manner as to keep the execution petition pending and alive, the execution petition filed by the decree-holder subsequently must be held to be within time. If, on the other hand, the order passed by the executing Court accepting the objections is to be held as final and remains, in view of the dismissal of the declaratory suit, unaffected and if the steps taken by the decree-holder in instituting such a suit cannot be considered to be passed in execution of the decree or in continuance of the execution proceedings, the subsequent application for execution must be held to be barred and the time spent in carrying on the declaratory suit cannot be calculated in counting the three years within which the second application should hare been made after the disposal of the first one and or disregarded as being irrelevant altogether.

2. The facts out of which the above question of limitation has emerged for decision are that a decree was passed on the 25th September, 1929 in O.S. No. 825 of 1929. The decree-holder made an application for execution (E. P. No. 610 of 1930) on the 17th October, 1930 for attachment and sale of an immoveable property. It Was attached but the third party objected to the attachment, on the ground that the property had been sold to him on the 2nd June, 1928 and that the judgment-debtor was not in possession of the attached property. This claim was allowed on the 8th September, 1931 and the application for execution dismissed. The decree-holder brought a suit (O.S. No. 774 of 1931) to set aside the order passed by the executing Court and for a declaration that the property attached by him belonged to his judgment-debtors and was liable to attachment in execution of his decree. The suit was dismissed on the 14th December, 1934 by the trial Court. An appeal was taken against that decree by the decree-holder to the Subordinate Judge of Kurnool (A.S. No. 70 of 1935). This was also dismissed but the learned Subordinate Judge in his judgment observed that a sum of Rs. 600 towards the unpaid balance of the price of the property purchased by him was still in the hands of the respondent who had put forward the sale in his favour and that the decree-holder might take out execution of that amount by appropriate proceedings. As the Subordinate Judge, in spite of this observation, considered that the only questions to decide in that appeal were whether the property belonged to the judgment-debtor and was liable to attachment in execution . of the decree and on those two points he found himself against the decree-holder, he dismissed the appeal. In paragraphs 9, 10 and 11 of his judgment, he observed as follows:

9. The further question that was argued and has to be considered is whether in the circumstances it is open to the plaintiff, in the present suit to proceed against the said sum of Rs. 600, as being the unpaid purchase money in the hands of the vendee. I should agree with the lower Court (vide Moti Lal v. Bhagwan Das) I.L.R.(1909) All. 443 'that when on a sale part of the sale consideration, remains unpaid, the vendor has a lien on the property sold for the unpaid purchase money. But this does not entitle any decree-holder of the vendor to bring the property to sale in execution of his decree as property of his judgment-debtor. He may attach the unpaid portion of the purchase money which is due to his judgment-debtor and enforce his lien on the property but he cannot cause the property purchased by a third party to be sold for the recovery of the unpaid purchase money to which he, as decree-holder, is not entitled' vide also Veerappa Thevar v. Venkatarama Aiyar : (1935)69MLJ678 .

10. For plaintiff, reliance is placed on the ruling reported in Basivi Reddi v. Ramayya : (1916)31MLJ394 . It cannot however be said, on the facts of this case, that the plaintiff's right to proceed against the unpaid purchase money is a consequential relief. As observed, all that has to be considered in this case is whether the property, which plaintiff now seeks to proceed against, still belongs to his judgment-debtor, or it has ceased to be his properly. The sale, it should be found, is a true and bona fide transaction and was not a fraudulent one brought about with a view to cheat the creditors; on the other hand, it was brought about with a view to help the creditors, and to see that the best advantage is secured to them.

11. Thus the suit having been brought to vacate the claim order and mainly to establish the right of the plaintiff to proceed against the properties conveyed to the first defendant, in execution of his decree in O.S. No. 825 of 1929 and since it has been found that the properties have by virtue of the sale ceased to be the properties of defendants 2 and 3, plaintiff can be held entitled to no relief in the present suit as brought.

3. After the suit was dismissed, a fresh application for execution (E. P. No. 338 of 1936) was presented by the decree-holder on the 16th March, 1936, that is, after the expiry of almost four years and a half after his petition E. P. No. .610 of 1930 had been disposed of. This was made with the object of attaching the sum of Rs. 600 alleged to have been in the hands of the respondent as observed by the learned Subordinate Judge, Kurnool, towards the balance of the price which had remained unpaid. The application having been presented more than three years after the last petition was dismissed, it would be apparently barred by time. But limitation was attempted to be saved

(a) as the second application of 1936 was alleged to be in continuation or revival of the first application (E.P. No. 610 of 1930), and

(b) as the suit to set aside the order of the executing Court allowing the claim was claimed to be a continuation of the execution proceedings and regarded to be a step-in-aid of the execution under Article 182, Sub-clause 5.

4. These contentions did not find favour with the District Munsif of Kurnool who dismissed the application as being barred by limitation. On appeal against that order, (A.S. No. 21 of 1938) the Subordinate Judge of Kurnool found the decree-holder to have been taking all necessary steps diligently for the execution of his decree and ,to have filed the present execution application within a few days after the appellate Court's decision in A.S. No. 70 of 1935, clarifying the rights of the parties, was pronounced and since he held that the acceptance of the claim petition and the consequent dismissal of the execution application were only subject to the result of the suit instituted for challenging the order passed by the executing Court on the claim petition, E. P. No. 338 of 1936 was declared by him to have been presented in time. The order of the first Court was thus reversed The garnishee appeals and the short question for decision, indicated in the beginning of this judgment turns on the character of the orders passed by the executing Court on the 8th September, 1931 allowing the appellant's claim and dismissing the execution petition and on the effect of the suit brought under Order 21, Rule 63, Civil Procedure Code.

5. Rule 60 of the same order provides that where upon an investigation, the Court is satisfied that the property, when attached, was not in the possession of the judgment-debtor or of some person on his behalf or under him or that even being in the possession of the judgment-debtor was not in his possession on his own account or as his own property, the Court shall make an order releasing the property, wholly or to such extent as it thinks fit from attachment. Since the only application before the Court was in respect of the property claimed by the respondent and the executing Court found that the whole of the property had been sold to him and did not belong to the judgment-debtor, the property had to be released from attachment. There was no other prayer in the application for execution presented on behalf of the decree-holder and the Court was, in view of the order passed by it in favour of the claimant, unable to proceed further and unless it was prepared to adjourn the proceedings to a further date for any sufficient reason, the application had to be dismissed. The Court did, in fact, dismiss the application on the 8th September, 1931. Order 21, Rule 63 reads as follows:

Where a claim or an objection is preferred, the party against whom an order is made may institute a suit to establish the right which he claims to the property in dispute, but, subject to the result of such suit, if any, the order shall be conclusive.

6. In order to determine the character of the order passed by the executing Court, the last words of the section should be borne in mind. The section, as we read it, lays down in immistakable terms that the order of the executing Court passed on a claim or an objection is conclusive, the only exception being as to the result of the suit which the decree-holder or the third party, against whom the objections may have been decided, may bring to establish his respective contentions in regard to the property in dispute. The words, 'subject to the result of such suit' were, in our opinion, meant to come into operation only when the result of such suit was different from the result arrived at by the executing Court. The order of the executing Court is otherwise declared to be conclusive, that is to say, according to our reading it was final and conclusive when it was passed and continued to be so. It would have been different if the contingency, that is, of a different conclusion having been arrived at in such suit, had arisen. Since the final result of the suit brought by the decree-holder in O.S. No. 774 of 1931 was against him, the order passed by the executing Court accepting the respondent's objections and the consequential dismissal of the application for execution remained undisturbed and, to use the language of the section, conclusive. The Oudh Chief Court has however taken a different view, in S. Hasan Shah v. Mohammad Amir Mirza I.L.R.(1930) Luck. 234 and held that an order cancelling or maintaining an attachment by the executing Court becomes final only on the date of the decision of the suit authorised by this rule and the order passed by the executing Court dismissing or filing the application on the adjudication of the claim petition cannot be construed as a final decision. With great respect to the learned Judges who decided that case, we are unable to concur in this opinion. The order was, as we have already observed, conclusive and, in view of the fact that the decision of the Civil Court was not in any way different, it continued to be so. Had no suit been brought under the pro- visions of this rule, the order would not have remained in a state of suspended animation until the period of limitation provided for the institution of such a suit expired. Why should a different result be held to follow if a suit such as permitted by this rule is instituted after the expiry of say eleven months unless there is something in the words of this rule or any other provision of law which may compel us to employ the fiction of a relation back and unsettle its finality or effectiveness that existed before that date? If a claim by a third party were disallowed, the execution would have proceeded and the property attached by the decree-holder would have been brought to sale. The mere institution of the suit would not have had the effect of stopping the course of execution. It is true that a decree or an order against which an appeal has been preferred continues to remain executable in spite of the appeal; but this is so on account of the provisions contained in Order 41, Rule 5 (1) Civil Procedure Code. There is no corresponding provision in regard to the orders passed in execution and the person who wants the execution of the order passed by the executing Court stayed will have to move the Court, hearing the suit brought under Rule 63, for an injunction. It may also be remembered in this connection that two orders were passed by the execution Court on the 8th September, 1931. The objections of the appellant were allowed by one and the execution petition of the respondent was dismissed by the other. One may have followed the other both in point of time and consequence, but the appellant-objector was not a party to the .latter order dismissing the application for execution and could not get it set aside by any process of law. This would have been open to the decree-holder alone against whom the third party's objections were accepted and that only when and if the Civil Court had been of a different opinion. In that case, not only the order passed by the Civil Court would have been substituted for the order passed by the executing Court but the consequential order of dismissal would have been, in order to give effect to the judgment of the Civil Court, as contemplated by the words 'subject to the result of such suit', vacated.

7. Let us now examine the decision in S. Hasan Shah v. Mohammad Amir Mirza I.L.R.(1930) Luck. 234 in order to elicit any further reasons . which may have been given by the learned Judges to come to a different finding. This matter, we find, has been very briefly dealt with towards the end and the only reason given to differ from the view taken in Raghunandun Pershad v. Bhugoo Lall I.L.R.(1889) Cal. 268 is that the learned Judges in the latter case failed to consider the effect of the declaratory suit brought under the provisions of Order 21, Rule 63, Civil Procedure Code. Had the learned Judges of the Oudh Chief Court, and we speak with deference, borne in mind that the attachment in regard to the one-third share in the Calcutta case was never set aside by the executing Court and.that the decree-holders could, notwithstanding the order in the claim case, have prosecuted their application for execution against the one third share which was not released then,

and the suit in respect of this one-third share even if brought, was superfluous, they would not have said what they did in regard to the declaratory suit brought under Rule 63. No other reason has been given for the opinion that:. if the suit succeeds, proceedings continue. If the suit fails, the proceedings fail simultaneously.

It is not quite correct to say first of all that if the suit succeeds, proceedings continue in all cases. They would not, if the suit that succeeded was brought by a third party. in that case, proceedings in execution would, at least as far as the third party's claim was concerned, come to an end. Moreover, if they had stopped on account of the decision of the executing Court being against the decree-holder, they would be, in the event of his success, capable of being revived; but to say that they would continue in that case may create a little ambiguity and give rise to an impression that they had never stopped in fact, which is far from being correct. The latter statement, however, that if the suit fails, the proceedings fail simultaneously cannot be, for the reasons that we have already given, accepted by us. The order by the executing Court cancelling or maintaining an attachment is liable to be affected by the result of the suit, if the result is different and not otherwise.

8. In support of his contention that the proceedings in a suit under Order 21, Rule 63, Civil Procedure Code, are a continuation of the proceedings in execution, reliance was placed by Mr. Sampath Aiyangar on the line of cases represented by the decisions in Krishnappa Chetti v. Abdul Khader Sahib (1913) 26 M.L.J. 449 : I.L.R. Mad. 535 and Musammat Bas Kuer v. The Gay a Municipality I.L.R.(1938) Pat. 588 where the alienations of the property attached by a decree-holder Were held to be hit by the rule of lis pendens even if they were effected after the acceptance of objections raised to the attachments by third parties and before suits to test the correctness of these orders were brought by. decree-holders. The other decision cited in support of his contention by learned Counsel for the respondent was in the Raja of Ramnad v. Subramaniam Chettiar I.L.R (1928) Mad. 465 where a suit under Rule 63, was held to be in continuation of the execution proceedings when the question relating to the want of a separate notice before a suit was brought against a body like the Court of Wards was raised in defence.

9. In order to appreciate these decisions it is well to remember that an enquiry into the objections raised to the attachment of a property in execution of a decree under Order 21, Rule 58 Civil Procedure Code is, as the terms of that rule indicate, a limited one; but, inasmuch as they can be raised by a third party only and an appeal is therefore incompetent in law, some machinery had to be devised for a further examination of the question whether the property was either wholly or partially liable to be sold for the debt due under the decree. This was provided by giving a remedy to the aggrieved party in the form of a separate suit. What had to be done, therefore, by the executing Court itself under Section 47, Civil Procedure Code, in case any objection to the liability of the property for being sold in execution was raised by the judgment-debtors or their legal representatives, and the appellate tribunal from that Court, had to be done on the intervention of a third party by a Civil Court in an independent action. The appeal, therefore, as against the decision of the executing Court had, instead of being taken to the Court which had appellate jurisdiction over it, to be made to an independent tribunal which may be even inferior in status, and in practice it very often is so, to that of the Court executing the decree. Since the real point to be decided in both these proceedings relates to the liability of the property to be sold, either wholly or partly, for the debt due under the decree (although the grounds for that decision may be either put more elaborately or stated more extensively in the subsequent action) and the Us is necessarily the same, the application of the rule of Us pendens to any alienation made after the decision of the executing Court and before that of the Civil Court or Courts, is understandable. In fact, the very words, 'subject to the result of such suit' used in Rule 63, make it clear that the Legislature did not, after the decision of the executing Court, intend to set the attached property at large, so that it could be alienated or otherwise disposed of without being affected by a contrary result, if any, arrived at in the Civil Court. If the result happens to be the same as that in the executing Court, the alienation by the claimant or the sale in execution of the decree remains unaffected. If, on the contrary, the result is different, the foundation of title on the basis of which the claimant in the one case and the decree-holder in the other were acting disappears, with the result that any alienation or sale must be, in view of the words 'subject to the result of such suit', regarded to have been made as dependent on the adjudication of the title in favour of the alienor or in that of the judgment-debtor as the case may be.

10. We must for the above reasons dissent from the view taken by the Oudh Chief Court in S. Hasan Shah v. Mohammad Amir Mirza I.L.R.(1930) Luck. 234 and hold that the finality or conclusiveness of the order passed in execution was not disturbed by the decision of the Civil Court particularly when the result of adjudication by both the tribunals was the same.

11. Nor is it possible to accept the contention that the execution application in spite of the order of dismissal passed on the 8th September, 1931 could be deemed to remain pending either from that date up to the time when the civil suit under Rule 63 was instituted or between the date of its institution and of its final disposal. As observed before, two orders were passed on the 8th September, 1931. The objections by the third party were accepted by one and since by reason of the decree-holder's default in not asking for any further relief in those proceedings the Court was unable to proceed further with the application for execution, it was dismissed. The last words of Order 21, Rule 57 lay down the effect of such a dismissal. By virtue of those words the attachment ceased to exist. It may have been revived if the Civil Court came to a conclusion different from that arrived at by the executing Court. But in the absence of that event, the orders of the executing Court passed on the 8th September, 1931 were conclusive. The execution application E. P. No. 610 of 1930 cannot, therefore, be regarded to have remained pending until the decision of the Subordinate Judge in Appeal No. 70 of 1935.

12. This brings us to the contention advanced on behalf of the respondent that the institution of the civil suit O.S. No. 774 of 1931 should be regarded to be a step in execution of the decree within the meaning of Article 182, Sub-clause 5 of the Limitation Act and limitation should be held to start from the date of the final order passed in appeal by the Subordinate Judge of Kurnool in A.S. No. 70 of 1935. This article of the Limitation Act gives a period of three years for the execution of a decree or order of any Civil Court (not provided by Article 183 or Section 48 of the Code of Civil Procedure) starting from the date of the final order passed on an application made in accordance with law, where such an application has been made, to the proper Court for execution or to take some step-in-aid of execution of the decree or order. Explanation II to this article defines the expression 'proper Court' to mean the Court whose duty it is to execute the decree or order.

13. In order to attract the provisions of this article, it is contended on behalf of the decree-holder that the plaint filed by him in O.S. No. 774 of 1931 should be regarded to be in the nature of an application as used in Article 182 (5) and as that was presented by him to the Court which was bound to execute the decree with the object of taking a step-in-aid of execution of his decree, it should be held to fall within the ambit of that clause of the Limitation Act and limitation should be held to start from the date of the final order passed thereon; There is no doubt that if the plaint can be, for the purpose of Article 182 (5) of the Limitation Act, regarded to be an applica-tion made in accordance with law, the Court receiving the plaint as the Court whose duty it was to execute the decree, and the act of filing the plaint as a step-in-aid of the execution of his decree, this contention ought to prevail It may be conceded that the plaint was filed by the decree-holder with the object of getting rid of the finding of the executing Court which was to-the effect that the property was not liable to be proceeded against in execution of his decree and that this may be there-fore regarded as a step-in-aid of execution. The next question is whether it was filed in the proper Court, i.e., the Court whose-duty it was to execute the decree. It may be that the Court executing the decree and the Court receiving the plaint and trying the suit were by accident and not by design, the same ; but we are of opinion that this accidental coincidence is immaterial and does not make the Court entertaining the civil suit as the proper Court whose duty it was to execute the decree. But assuming our opinion to be incorrect in that respect and admitting that the Court trying the suit was bound by law to execute the decree, the main point to consider is whether the plaint can be regarded to be an application for the purposes of this Article of the Limitation Act and made in accordance with law. Learned Counsel for the respondent contends that it should be so and relies again on the decision in S. Hasan Shah v. Mohammad Amir Mirza I.L.R.(1930) Luck. 234 to which we had occasion to refer in another connection. This decision is undoubtedly in favour of his contention but the question is if, it is correct. The reasons given by the learned Judges for their opinion are: firstly, that as long as the Court receiving the plaint happens to be the Court whose duty it is to execute the decree, the requirements of the Article that the application must be made to the proper Court must be deemed to have been complied with. We have referred to this aspect of the matter already although very briefly and in view of what was said by the learned Judges of the Bombay High Court in Murugeppa Mudiwallappa Kottanhalli v. Basawantrao Khalilappa Desai I.L.R.(1913) Bom. 559 it is unnecessary to discuss the matter at any length. The reasons given by the learned Judges of the Oudh Court are not, in our opinion, sufficient or convincing. What is it but an accident that (here happened to be only one Court in existence in the place in which the suit could be, with reference to the value and the territorial situation of the property involved, instituted? Why should a reference to the question involved in the two proceedings be considered to be relevant to determine whether the Court is proper or otherwise? Broadly speaking, it is improper for a Court to sit in judgment on its own decision and an attempt is usually made by the person who is aggrieved by the order of the executing Court to institute his suit in another Court. This is proper. Even if there may be no technical objection in some cases to the hearing of the suit by the executing Court, the opinion may have been formed after such an elaborate enquiry that it may not be easy for the Judge trying the civil suit to hear and determine the suit with-out being affected to some extent at least by his previous Conclusions. The learned Judges of the Bombay Court were not considering the case of a plaint at all but that of an application under the Succession Certificate Act and had therefore no occasion to say anything about the plaint being treated as an application within the meaning of Article 182. The second reason given by the learned Judges for holding that a plaint may be, in certain cases, treated as an application for the purposes of the article was that unless there was anything to indicate that the term 'application' has been used in the Article in any narrow or restricted sense or by way of an antithesis to a 'plaint' or to any other document such as a memorandum of appeal, it may be held to cover a plaint as well. As a reason for this decision they referred to Section 47 (2),Civil Procedure Code and observed that in proper cases, a plaint in a suit could be treated as an application. They attached great importance to the fact that in such cases the article of limitation ,held in various Courts to be applicable is one that would apply to applications and not to suits thereby implying that the plaints have been held in certain cases to have lost their individuality altogether and were to be regarded as mere applications. But in converting a plaint into an application for the purposes of Article 182 of the Limitation Act, we are afraid the learned Judges happened to overlook the provisions of Section 2 (10) and Section 3 of the Limitation Act. There is no definition of 'suit' in the Act but Section 2 provides that unless there is something repugnant in the subject or context, 'suit' does not include an appeal or an application. Section 3 of the Act also makes a distinction between the institution of a 'suit' and the making of an 'application'. It was unnecessary to rest the distinction on what the learned Judges called 'ordinary parlance'. Since a suit is, according to the explanation in Section 3, instituted when the plaint is presented to the proper Court, the Act clearly draws a line between the presentation of a plaint and making an application and it cannot be obliterated unless there was something repugnant in the subject or context. There is nothing in Article 182 which may call for that treatment, Hansraj Gupta v. Official Liquidators of Dehra Dun etc., Company I.L.R.(1932) All. 1067. The reason given by the learned Judges that the Court may in certain cases treat a proceeding under Section 47 of the Civil Procedure Code as a suit and a suit as a proceeding seems to be however beside the point. Even if a suit is to be treated as a proceeding under Section 47 (2) of the Code, it nonetheless remains a suit and this in spite of the fact that the Courts have, in treating the suit started on the institution of a plaint as an execution proceeding, applied Article 185 (2) of the Limitation Act which would be. applicable to applications only and not to suits. It must be remembered that a suit could only be treated under this section as an application when it was found that a suit could not otherwise be competent. It was an indulgence granted to a party at the option of the Court to treat the suit as a proceeding in execution and once the suit was treated as such a proceeding, the limitation under Article 185 (2) was held to be applicable. It must, however, be remembered that the suit did not become an application for all purposes but it was at the option of the Court treated as a proceeding for a certain purpose and that is about all. The provision in Sub-clause 2 of Section 47 Civil Procedure Code does not convert the suit into an application for all purposes. On the contrary the very fact that a clear provision was made in Section 47 leaves it beyond any doubt that the suit was not for any other purpose to be treated as a proceeding.

14. In view of the provisions contained in Sections 2 and 3 of the Limitation Act, it was incorrect, if we may say so with respect, to rely on the interpretation put on the rules of the Supreme Court and it is not, for that reason safe to look to the English decisions for guidance in this respect. Nothing else was contained in this judgment or was said at the bar which may lead us to construe the plaint presented in O.S. No. 774 of 1931 to be an application within the meaning of that term as used in Article 182 (5) of the Limitation Act. Nor can it be said to have been made in accordance with law. Applications to constitute a step-in-aid of execution have to be filed in the execution proceedings themselves and not in any other suit or proceeding--however intimately connected the latter might be with the proceedings of the former.

15. A feeble attempt was made by learned Counsel for the respondent in the end to show that the orders passed by the Subordinate Judge of Kurnool dismissing the appeal (A.S. No. 70 of 1935) was, in view of his finding that a sum of Rs. 600 had out of the price, remained unpaid, wrong and that he should have granted a declaration that the above-mentioned sum of Rs. 600 along with the vendor's lien on the property, if not the property itself, were liable to attachment. But this point was considered by the learned Subordinate Judge in the above quoted paragraphs 9 to 11 of his judgment and decided against the respondent rightly or wrongly--it is unnecessary to say now,--with the result that the decree-holder's suit was ordered to be dismissed. This became final and it is impossible for us while hearing a second appeal on the question whether the application for execution presented in 1936 was within time, to hold that O.S. No. 774 of 1931 should not have been dismissed but decreed in the manner suggested by learned Counsel for the respondent. The result of the civil suit was, as contemplated by Order 21, Rule 63 that of a dismissal and this is enough to decide the fate of the respondent's contention and of the appeal.

16. For the foregoing reasons, the decision of the Subordinate Judge must be reversed and E. P. No. 338 of 1936 held to be barred by limitation. The appellant will have his costs of the appeal in this Court.


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