Kochikka vs Kunju Pennu and Another

Joseph, J.—The only question for decision in this second appeal is whether the decree holder''s application for attachment and sale of movable property belonging to defendants 7 and 8 is barred u/s 48 of the Code of Civil Procedure. The decree was passed on 16-9-1938. The execution petition now pending is one filed on 4-11-1952 which may be deemed to be one in continuation of the previous execution petition filed on 13-2-1950 which was not disposed of judicially. The application for attachment of moveables was made only on 25-10-1957. The courts below have held that this being an application for attachment of fresh moveables filed more than twelve years after the date of the decree, the application was barred u/s 48, Code of Civil Procedure. The decree-holder has, therefore, preferred this second appeal.

One of the grounds pressed in the courts below was that the decree-holder was entitled to claim exclusion of certain periods u/s 48(2) of the Code of Civil Procedure. This was not pressed in the second appeal.

It was urged on behalf of the appellant that the second and third execution petitions were pending and that the present application for attachment was one pursuant to the substantive prayer in the second execution petition filed on 30-5-1124. The second execution petition was dismissed on 17-8-1124 as a result of an order of stay issued by the lower appellate court and the third execution petition dated 13-2-1950 specifically stated that it was in continuation of the earlier one. Even assuming that the second execution petition is pending even now, that will not enable the decree-holder to take the case out of the bar u/s 48. There was a prayer for attachment and sale of properties in the execution petition dated 30-5-1124 and immovable property belonging to these defendants was attached. The real point is that there was no prayer for attachment of these moveables within twelve years of the date of the decree.

This question arose for decision in N. D. Namboodiri v. K. Yohannan (A.I.R. 1959 T. C. 109) and after exhaustive consideration of the case law on the point it was held by the Full Bench that an application filed after twelve years from the date of the decree for attachment of fresh property was barred u/s 48, Code of Civil procedure. This is a well accepted position and it is unnecessary to refer to other cases on the point.

Another ground pressed by the appellant was that the execution was stayed while the period of twelve years expired and that he was entitled to claim the benefit of section 15 of the Limitation Act. Even assuming that he is, that will not cover the whole period beyond twelve years. No other point arises in this second appeal. The concurrent orders of the courts below are therefore confirmed and the second appeal is dismissed with costs.