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1952 DIGILAW 107 (KER)

Kochupolo v. Ittikuriya

1952-10-07

SUBRAMONIA.IYER

body1952
Judgment :- 1. The only question arising in this Second Appeal is whether the execution petition presented on 9-11-1122 is barred by the 12 years' rule provided for in Section 48 of the Code of Civil Procedure, the decree having been passed on 22-10-1110 and the execution petition filed beyond 17 days after the 12 years. The decree-holder relied upon the Cochin Proclamation IX of 1116 which, by clause 2, provided that: "2. In computing the period of limitation prescribed by the Cochin Limitation Act, XII of 1112, or by any other law for the time being in force in respect of the execution of any decree or order of any civil court, the period during which such execution stood suspended by reason of this Proclamation shall be excluded." The said Proclamation (IX of 1116) prohibited steps in execution of decrees by way of arrest of the judgment-debtor, attachment and sale of his movable property and sale but not attachment of his immovable property. The contention urged on behalf of the judgment-debtor which was repelled by both the courts below is that execution is not suspended in this case because the decree-holder could have filed the execution petition though he may not have been entitled to get any order in respect of matters which are prohibited by the Proclamation. Two Division Benches of the Cochin High Court considered the proper interpretation to be put upon this Proclamation and came to contradictory conclusions. One is reported in 34 Cochin 714 (Sankarankutty Menon v. Govinda Menon) and the other in 37 Cochin 56 (Issac v. Devassy Kathanar). All that could be stated in favour of the conflicting views has been stated in those two cases. Subsequently a Full Bench of the same High Court confirmed the view taken in 37 Cochin 56 and over-ruled the earlier decision. The Full Bench decision is reported in 37 Cochin 472 (Thomu v. Parameswaran Elayad). It is not necessary to discuss the points so ably and elaborately discussed and considered in 37 Cochin 56. I am in complete agreement with the view taken in that case which, as already stated, has been confirmed by the Pull Bench. The Full Bench decision is reported in 37 Cochin 472 (Thomu v. Parameswaran Elayad). It is not necessary to discuss the points so ably and elaborately discussed and considered in 37 Cochin 56. I am in complete agreement with the view taken in that case which, as already stated, has been confirmed by the Pull Bench. In that view the decree-holder would be entitled to the exclusion of three months and 22 days in computing the period of limitation prescribed by the Code of Civil Procedure and if that is so, the execution petition is not barred and the view taken by the court below is correct. 2. The Second Appeal is therefore dismissed with costs. Dismissed.