A decree holder cannot sit tight indefinitely and must apply for the prosecution of an execution application after the temporary bar to the execution proceedings has come to an end.

HARI LAL AGRAWAL, J.

1. This miscellaneous second appeal is by the judgement debtors against the order of the lower appellate court overruling their objections to the executability of the decree on the ground of limitation. They had succeeded in the trial court on this ground, but on appeal by the decree holders the court of appeal bellow has defeated them.

2. The relevant facts are these decree holders obtained a decree on 23-6-1957 against the judgement debtors for a sum of a little over Rs. 3,500.00 besides posts. They put the decree in execution for realising its fruits by filing successive applications but unfortunately they failed so far to reap the fruits of the decree. When the decree holders had filed Execution Case No. 194 of 1960 and proceeded against certain properties a claim case under Order 21 Rule 58 of the Code of Civil Procedure was filed by one Bishwanath Prasad. The executing court allowed the claim case by its order dated 12-12-1960. The decree holders, perhaps, being unable to find out any other mode of execution of the decree, did not take any further step in execution proceeding which was dismissed for defendant on 16-1-1961. They, however, filed a title suit under Rule 63 of Order 21 of the Code against the aforesaid claimant Bishwanath Prasad, which was ultimately decreed in his (their ?) favour on 6-8-1963. Bishwanath Prasad, however, challenged the decree in an appeal which was also ultimately dismissed on 21-3-1970. After the dismissal of the appeal the decree-holders filed a fresh execution application which was numbered as Execution Case No. 158 of 1970. This, however, was dismissed for default on 9-12-1971 and thereafter a fresh Execution Case No. 7 of 1972 was filed on 18-1-1992. The judgement debtors filed at application holder Sec. 47 of the Code objecting to the execution of the decree on the ground of limitation. Their plea was that under Article 136 of the Limitation Act, which provides a period of three years from the date when the right to apply accrues, the limitation would start running from 6-8-1963, i. e., the date of the decision of the title suit in favour of the decree holders, and therefore, the present application was barred by limitation. The stand of the decree holders, on the other hand, was that the decree of the trial court was under appeal and they remained under a bona fide belief that the decree could not be executed. The executing court accepted the plea of the judgement debtors and held that the execution application was barred by limitation. On appeal by the decree holders, the lower appellate court took the view that the decree holders could not have levied any execution pending the decision of the appellate court. Undisputedly no stay order was granted by the appellate court and, therefore, the decree holders would have proceeded with the execution case. Nonetheless the lower appellate court took the view that the title suit filed by the decree holders under Order 21 Rule 63 of the Code would be deemed to be pending until the disposal of the title appeal and the execution proceeding would be deemed to be in abeyance till that time. It accordingly held that the decree holders were prevented from proceeding with the execution case by fraudulent act of the judgement debtors in view of the finding in the title suit that the claim of Bishwanath Prasad was based on a sham transaction with a view to defeat the claim of the decree holders.

3. Learned counsel appearing for the appellants contended that examining the question of limitation from any angle, the execution application filed on 18-1-1972 cannot be saved from the bar of limitation. The decree which is dated 23-5-1957, according to Sec. 48 of the Code before its repeal in the year 1963, could be executed within 12 Years from that date. Apparently, therefore, the execution filed beyond 24-5-1969, would be barred by limitation. Sub-Section (2) of Sec. 48 of the Code, however, provided an exception to the- limi