Madhwacharya vs Shivarama Shetty and others

E.S. Venkataramiah, J.—This is a Judgment-Debtor''s Execution Second Appeal. The decree-holder filed R.E.P. No. 268 of 1964 on the file of the Executing Court for executing a decree under which he was entitled to recover a certain amount by sale of the properties subject to a charge. The said Execution Petition was returned to the decree-holder by the Executing Court for rectifying certain mistakes. It was represented along with an application for extension of time. The Court granted further time to comply with the deficiencies in the application and directed the return of the execution application to the decree-holder again. The decree-holder was not able to represent the execution petition within the time prescribed by the Court. He represented it however on 17-4-1964 with an application for condoning the delay in representing the same. The Executing Court received the said execution petition after condoning the delay in representation. Thereafter, the judgment-debtor was notified about the Execution Proceedings. At that stage, the judgment-debtor contended that the execution petition was barred by time since it had not been presented within three years because it had been represented on 17-4-1964 and that the ex parte order passed by the Court condoning the delay in representation was ineffective. Accepting the contention of the judgment-debtor, the Executing Court dismissed the Execution Petition on the ground that it was barred by time. Against that order, the decree-holder filed an appeal before the lower Appellate Court. The lower Appellate Court allowed the appeal and directed the execution proceedings to proceed. This Second Appeal is presented against the order passed by the lower Appellate Court.

I find that there is no merit in this Second Appeal. It is not disputed that the Execution Petition was presented before the Executing Court on 29-3-1962 and on that day, the petition was in time. It is no doubt true that the Execution Petition was returned to the decree-holder in order to rectify certain mistakes and the petition was represented on 17-4-1964 after complying with the requirements of law. The Executing Court condoned the delay in the representation of the Execution Petition and issued notice to the judgment-debtor. The fact that there was long interval of lime between the date on which the petition was returned to the decree-holder for representation and the date on which it was represented was a matter which the Executing Court had to take into, account in considering whether there was any laches on the part of the decree-holder in proceeding with the Execution Proceedings. Having applied its mind at an earlier stage, if found that the said delay had to be condoned. The point for consideration in this appeal is the effect of the order passed by the Court condoning the delay in representation on the question of limitation. When once the Execution Petition is duly lodged in the Executing Court, it must be deemed to have been instituted on the date on Which it is so lodged and for the purposes of limitation, the crucial date for consideration is the date on which it is lodged for the first time. Any subsequent delay in representing it on the Execution Petition being returned to the decree-holder, cannot be taken into consideration for purposes of Limitation Act. If there is delay in representation of a paper which has been returned to a party, it may be open to the Court to decline to proceed with the matter on the ground of non-prosecution under the provisions of the Code of Civil Procedure. It is not possible in the circumstances of this case when the Court has not proceeded to reject the application on the ground of non-prosecution to hold that the Execution Petition itself was barred by time under the provisions of the Limitation Act. When once it is conceded that the Execution Petition was filed in time on 29-3-1962, it must be deemed that the executing proceeding was pending be fore the Executing Court until it was duly disposed of by an effective order terminating the execution proceedings. It is also not disputed that no such order had been passed in this case till the judgment-debtor appeared before the Court and contended that the petition was not in time. In the foregoing circumstances, the lower Appellate Court was right in holding that the Execution Petition was not barred by time.

The appeal therefore, fails and is dismissed with costs.