Seeking an alternative mode of executing a decree in a pending execution petition is permissible under Art.136 of the Limitation Act, especially in the absence of a provision like S.48 of the Code of Civil Procedure.

This revision is by the judgment debtors. The respondent decree holder obtained a decree for money on 28-6-1977. He filed E.P. 381 of 1982 for execution of that decree. The essential prayer in that execution petition was for recovery of the amounts due under the decree by, the arrest and detention of the judgment debtors. On 28-9-1992, twelve years after the decree but even while his execution petition was pending, decree holder applied by E. A. 996 of 1992 seeking to add an alternate prayer for recovery of the decree amount by sale of certain properties which the decree holder claimed the judgment debtors possessed. In a sense, what the decree holder sought was an amendment of his execution petition by adding a further payer for recovery of the amounts due under the decree by proceeding against the properties which he claimed, belonged to the judgment debtors. The judgment: debtors opposed that application. One of the various contentions raised was that on the date E.A. 996 of 1992 was made, for seeking to proceed against the property, the execution of the decree was barred by limitation if that application is treated as a fresh execution petition and that in such a situation the executing court cannot permit the decree holder to resort to the alternative mode of execution. The executing court allowed the application filed by the decree holder finding that the prayer for arrest and detention of the judgment debtors had proved impracticable and therefore the alternate approach made by the decree holder for realising the fruits of his decree was justified and deserved to be accepted. The judgment debtors question the order of the executing court.

2. While admitting this Civil Revision Petition this court by order dt. 30-5-1995 granted an interim stay of further proceedings in execution on condition that the judgment debtors deposit a sum of Rs. 3000/- in the executing court within one month of mat date for payment to the decree holder. It is submitted by learned counsel for the judgment debtors mat the sum of Rs. 3000/-was deposited in time.

3. It is contended on behalf of the judgment debtors based on the decision in N.D. Namboodiri v. K. Yohannan (1956 KLT 888), Kochikka v. Kunju Pennu (1963 KLT 357) and Vesudevan Unnithan v. Karthiyani Amma (1966 KLT 78) that the prayer in E.A. 996 of 1992 for proceeding against the property must be treated as the filing of a fresh execution petition and since on the day E.A. 996 of 1992 was tiled, a fresh execution petition would be barred, the decree holder could not seek to proceed against the properties of the judgment debtors and was obliged to pursue only his prayer in the original execution petition for recovery of the decree amount by the arrest and detention of the judgment debtors. I notice that the decisions referred to by counsel for the judgment debtors were all based on S.48 of the Code of Civil Procedure which was deleted by S.28 of the Limitation Act of 1963. The original prohibition against passing an order for execution of a decree on a fresh application presented after the expiration of twelve years from the date of the decree has thus been omitted. Instead Art.136 of the Limitation Act, 1963, only prescribes a period of twelve years from the date when the decree becomes enforceable for execution of any decree other than a decree granting mandatory injunction. In such a situation all that the decree holder is obliged to do is to file a petition for execution of the decree within 12 years. The fact that he initially chose one of the alternate modes available to him to enforce the decree, would not preclude him from opting for another mode, so long as his execution petition is pending and he has failed to realise the fruits of his decree through the mode-he had initially chosen. In my view, the theory that seeking to adopt another mode for realising the fruits of a decree in a pending execution petition would amount to initiating a fresh execution, cannot have any