C. Narayana vs Ram Reddy and others

M.A. Ansari, J.—This second appeal has been filed by the plaintiff against a decree of the lower Appellate Court; whereby the decree of the trial Court has been reversed and the suit for the declaration of certain properties being liable to attachment in execution of a decree dismissed, on the ground that it was time-barred.

In order to appreciate the arguments of the learned advocate for the appellants, it is necessary to give certain facts in the case. A judgment in favour of the appellant was pronounced according to a private award and later an execution application was filed. This application was rejected by the first Court on the ground that the order sought to be executed did not create any charge on the properties and the appellant should file a regular suit for enforcing the charge created in his favour by the award. He appealed against the decision and the lower appellate Court reversing the decision about the filing of a fresh suit allowed the appeal. The judgment-debtor thereupon appealed to the High Court and this Court reversing the decision of the lower appellate Court upheld the judgment of the executing Court that a suit should be instituted in order to entitle the respondent in that case to enforce the charge created in his favour. Between the dates of the lower appellate Court decision and its reversal by the High Court, an application to execute the decree passed according to the terms of the award was made and certain properties were thereupon attached. An objection to this attachment was filed which was allowed on Amardad 24, 1346 Fasli: June 29, 1937 A.D. but no declaratory suit was filed to set aside the order. After the decision of the High Court, the appellant filed a suit on the basis of the award and got a decree in his favour on Shehrewar 21, 1347 Fasli: July 27, 1938, A.D. In execution of this decree, he applied for the attachment of certain properties; again objections were raised and allowed on Azur 10, 1350 Fasli: October 15, 1940. Within a year of the allowing of this objection, the present suit for the declaration was filed which the lower appellate Court has held to be time-barred on the ground that this fresh suit was not within one year of the allowing of the prior objections in the execution proceeding, which the High Court has held the appellant not to be entitled to take and directed him to file a suit to give effect to the terms of the award.

I am of opinion that the decision of the lower appellate Court should be reversed. The object of bringing a declaratory suit could only be that the property regarding which objection had been allowed should be made liable to attachment in the execution of the appellate decree. But within a year of the allowing of such an objection it was held by this Court on Rahman 24, 1347 F: December 27, 1937 that there was no decree capable of being executed. Therefore, the appellant could not bring any suit for there was no decree in which the property released was liable to be attached. The finality contemplated by O. 21, R. 63 extends to the execution of the particular decree, and it does hot operate on execution of a separate decree. It has been held in Kandadai Narasimhachariar Vs. Raghava Padayachi, , that an order on a claim petition filed under O. 21, R. 58 or a decree in a suit filed under R. 63 does not extend beyond the execution of the decree which has given rise to those proceedings. The principle laid down in the case is equally applicable to the facts of this case. The allowing of the objection was in execution proceedings of a decree which the High Court held not to create any charge and directed filing of a suit for the purpose. Such a suit was filed, a fresh decree passed in whose execution the property has been attached. The allowing of the objection in this proceeding is in execution of a fresh decree, and the orders passed in a prior proceeding which were in execution of a different decree cannot be brought in to ascertain the period of limitation for the purposes of filing the suit. The appeal is, therefore, allowed, the decision of the lower appellate Court set aside and the case remanded to the District Judge of Nalgonda to decide the appeal on merits. The costs of this appeal will- abide the final decision on merits by the lower appellate Court.

Naik, C.J.

I agree.