JUDGMENT RAY, C. J. :—This appeal by certificate is from the order dated 26 July, 1967, of the High Court of Assam. 2. The only question in their appeal is whether the respondents application filed on 27 July, 1965, for execution of the decree obtained by him is barred by limitation. 3. The respondent on 7 January, 1952, obtained a decree against the appellant for the sum of Rupees 71,980 in a money suit filed in the Court of Subordinate Judge, Gauhati. On 8 December, 1956, the respondent decree-holder filed an application No. 89/56 for executing the said decree. On 15 July , 1957, the appellant, the Judgement debtor , filed an application pleading adjustment of the decree. On 15 April, 1958 the judgment debtor withdrew the said application. On 18 December, 1957, the Subordinate Judge, Gauhati dismissed the decree-holders application No 89/56. The decree-holder preferred an appeal. The High Court at Gauhati on 1 July, 1959 set aside the order of the Subordinate Judge and allowed the appeal for execution of the decree. 4. Meanwhile on 18 January, 1958, the appellant judgment debtor in the Gauhati suit obtained a decree against the respondent for the sum of Rs. 1,22,000 in the Court of the Subordinate Judge at Nowgong. In execution of the decree in the Nowgong suit the appellant on or about 29 January, 1958 obtained an attachment of the respondents decree passed in the Gauhati suit. 5. On 13 August, 1959, the Subordinate Judge, Gauhati struck off the execution application No. 89/56 from the file. 6. The respondent filed an appeal against the decree obtained by the appellant in the Nowgong suit. The High Court on 28 April, 1964 accepted the appeal filed by the respondent and dismissed the Nowgong suit filed by the appellant. 7. On 27 July, 1965 the respondent filed an application for execution in the Court of the Subordinate Judge, Gauhati. The appellant preferred an objection contending that the application is barred by limitation. On 4 March, 1966 the Subordinate Judge dismissed the execution application as barred by time. 8. On 26 July, 1967 the High Court accepted the appeal filed by the respondent and directed the execution to proceed. 9. The appellant preferred an objection contending that the application is barred by limitation. On 4 March, 1966 the Subordinate Judge dismissed the execution application as barred by time. 8. On 26 July, 1967 the High Court accepted the appeal filed by the respondent and directed the execution to proceed. 9. The contention of the appellant is that the order obtained by the appellant attaching the respondents decree did not amount to a stay within the meaning of Section 15 of the Indian Limitation Act, 1908, and, therefore, the respondents application for execution which was filed on 27 July, 1965, was barred by limitation. The appellant contended that when the Subordinate Judge, Gauhati on 13 August, 1959 struck off the execution application of the respondent the respondent should have filed an application for execution within three years from that date. 10. The High Court referred to the order dated 29, January, 1958, passed by the Nowgong Court attaching the decree obtained by the respondent. The High Court relied on the provisions contained in Order 21, Rule 53(1) (b) of the Code of Civil Procedure and held that the attachment continued restraining the respondent from executing the decree until the notice issued by the Court attaching the decree was recalled. The Nowgong Court did not pass any order recalling the order. On 1 March, 1958, the Nowgong Court passed an order which was as follows : "Notice served. No objection filed by J.D. (meaning thereby judgment debtor). Heard both parties. Execution case is struck off for the present, Attachment to continue until further orders". 11. In the context of this order of attachment passed by the Nowgong Court the attachment continued until the Nowgong suit was dismissed by the High Court on 28 April, 1964. The High court rightly held that there was no question of limitation because the application was filed within three years from 28 April, 1964 when the bar against execution was raised and the order restraining the respondent decree-holder from executing the decree in the Gauhati suit ceased to be operative. 12. Another contention which had been raised by the appellant and repeated here is that when the Gauhati Court on 13 August, 1959, struck off the execution case No. 89/56 the execution application filed on 27 July, 1965, was barred by time. 12. Another contention which had been raised by the appellant and repeated here is that when the Gauhati Court on 13 August, 1959, struck off the execution case No. 89/56 the execution application filed on 27 July, 1965, was barred by time. The High Court held that the Gauhati Court on 13 August, 1959, merely struck off the execution application and, therefore, the subsequent application which was made was a continuation of the execution proceedings. The High Court held that striking off the application did not amount to any order deciding the merits of the application. 13. The order obtained by the appellant attaching the decree of the respondent in the Gauhati suit has been rightly held by the High Court to have precluded the respondent from executing the decree during the time the attachment was in force. The other conclusion of the High Court that the execution application dated 27 July, 1965 was a continuation of the earlier application is also correct. The order striking off the execution application has been rightly construed by the High Court as merely consigning the application to the Record Room for statistical purposes. The application dated 27 July, 1965 indicates in column 2 as the respondent rightly stated that the previous application for execution was struck off on 13 August, 1959, because of the order of attachment passed by the Nowgong Court. The attachment order was nullified only when the appellants suit was dismissed by the High Court on 28 April, 1964. The respondents decree became executable at that time. The inescapable conclusion is that the application for execution on 27-7-1965, is a continuation of the old application. 14. For these reasons, the judgment of the High Court is affirmed, the appeal is dismissed with costs. Appeal dismissed. For Citation : AIR 1976 SC 2490 SUPREME COURT OF INDIA (From Orissa : (1971) 1 Cut WR 351) 31-8-1976. P.N. BHAGWATI AND S. MURTAZA FAZL ALI, JJ. State of Orissa, Appellant Decided on Mr. Brahmananda Nanda, Respondent. Criminal Appeal No. 283 of 1971 Decided on 31-8-1976. (A) Evidence Act (1 of 1872), S.3 - Murder case - Eye witness not disclosing name of assailant for a day and half - Credibility. Penal Code (45 of 1860), S.302. P.N. BHAGWATI AND S. MURTAZA FAZL ALI, JJ. State of Orissa, Appellant Decided on Mr. Brahmananda Nanda, Respondent. Criminal Appeal No. 283 of 1971 Decided on 31-8-1976. (A) Evidence Act (1 of 1872), S.3 - Murder case - Eye witness not disclosing name of assailant for a day and half - Credibility. Penal Code (45 of 1860), S.302. Where in a murder case the entire prosecution case depended on the evidence of a person claiming to be eye witness and this witness did not disclose the name of the assailant for a day and half after the incident and the explanation offered for non-disclosure was unbelievable, held that such non-disclosure was a serious infirmity which destroyed the credibility of the evidence of the witness and that the High Court was correct in rejecting it as untrustworthy and acquitting the accused. (1971) 1 Cut WR 351, Affirmed. (Para 2) Mr. M. K. Ramamurthi, Sr. Advocate and Mr. G. S. Chatterjee. Advocate, for Appellant; Mr. Gobind Das, Sr. Advocate, M/s. M. S. Narasimhan, A. K. Mathur and Mr. A. K. Sharma and Mrs. S. Bhandare. Advocates with him, for Respondent. The judgment of the Court was delivered by JUDGMENT BHAGWATI, J. :—This appeal by special leave, is directed against a judgment of the High Court of Orissa acquitting the respondent, of a horrendous crime in which six, persons, close relatives of the respondent, were done to death. The respondent was convicted by the Additional Sessions judge, Dhankanal and sentenced to death, but on appeal the conviction and sentence were set aside and the respondent was acquitted. The question in this appeal is : whether the acquittal of the respondent is justified or it must be set aside and the conviction and sentence imposed on the respondent restored. 2. The entire prosecution case against the respondent rests on the oral evidence of Chanchala (P.W. 6) who claimed to be an eye-witness to the murder of Hrudananda, one of the six persons alleged to have been killed by the respondent. The learned Additional Sessions Judge believed her evidence, but the High Court found it difficult to accept her testimony. The High Court has given cogent reasons for rejecting her evidence and we find ourselves completely in agreement with those reasons. The learned Additional Sessions Judge believed her evidence, but the High Court found it difficult to accept her testimony. The High Court has given cogent reasons for rejecting her evidence and we find ourselves completely in agreement with those reasons. We have carefully gone through the evidence of this witness, but we do not think we can place any reliance on it for the purpose of founding the conviction of the respondent. The evidence suffers from serious infirmities which have been discussed in detail by the High Court. It is not necessary to reiterate them, but it will be sufficient if we refer only to one infirmity which, in our opinion, is of the most serious character. Though according to this witness, she saw the murderous assault on Hrudananda by the respondent and she also saw the respondent coming out of the adjoining house of Nityananda where the rest of the murders were committed, she did not mention the name of the respondent as the assailant for a day and a half. The murders were committed in the night of 13th June, 1969, and yet she did not come out with the name of the respondent until the morning of 15th June, 1969. It is not possible to accept the explanation sought to be given on behalf of the prosecution that she did not disclose the name of the respondent as the assailant earlier than 15th June, 1969, on account of fear of the respondent. There could be no question of any fear from the respondent because in the first place, the respondent was not known to be a gangster or a confirmed criminal about whom people would be afraid, secondly, the police had already arrived at the scene and they were stationed in the Club House which was just opposite to the house of the witness and thirdly, A. S. I. Madan Das was her nephew and he had come to the village in connection with the case and has also visited her house on 14th June, 1969. It is indeed difficult to believe that this witness should not have disclosed the name of the respondent to the police or even to A. S. I. Madan Das and should have waited till the morning of 15th June, 1969, for giving out the name of the respondent. It is indeed difficult to believe that this witness should not have disclosed the name of the respondent to the police or even to A. S. I. Madan Das and should have waited till the morning of 15th June, 1969, for giving out the name of the respondent. This is a very serious infirmity which destroys the credibility of the evidence of this witness. The High Court has also given various other reasons for rejecting her testimony and most of these reasons are, in our opinion, valid and cogent. If the evidence of this witness is rejected as untrustworthy, nothing survives of the prosecution case. 3. The prosecution also relied on an extra-judicial confession alleged to have been made by the respondent, but both the learned Additional Sessions Judge and the High Court were not impressed by it. We need not, therefore, dwell on it any longer, the recovery of the tangia was also relied upon on behalf of the prosecution, but for reasons given by the High Court in its judgment, this evidence cannot avail the prosecution. It is true that the relations between the respondent and his father Nityananda were a little strained, but that could not possibly furnish an adequate motive for this terrible exhibition of violence. 4. The High Court has in an admirably clear and lucid judgment discussed the entire evidence led on behalf of the prosecution and shown its inadequacy to establish the charge against the respondent. We see no reason to interfere with the reasoning of the High Court and express our approval of it. 5. We accordingly confirm the acquittal of the respondent and dismiss the appeal. Appeal dismissed. For Citation : AIR 1976 SC 2488