(This revision is preferred under Section 115 of CPC against the fair and decreetal order passed in EA No.803 of 2004 in EP No.126 of 2003 in Os No.11 of 1986 on the file of the Principal Subordinate Judge, Tirunelveli dated 16.07.2004.)

The revision petitioner is the judgment debtor, who failed in his attempt to resist the petition filed by the decree holder/respondent to amend the E.P. successfully.

2.The factual matrix, which are necessary for the disposal of the CRP are as hereunder.

3.The respondent in this CRP, as plaintiff, has filed OS No.11 of 1986 for recovery of sum of Rs.2,74,010.05 with interest @ 6% p.a. from 20.1.1986, which was decreed on 15.6.1992. Pursuant to the decree obtained by the respondent, in order to realize the decree amount by bringing the property of the judgment debtor by attachment and sale, E.P.No.27 of 1995 was filed under Order 21 Rule 54 of Civil Procedure Code, hereinafter called "the Code", wherein the attachment was made on 25.10.1995. The E.P., after undergoing certain process or proceedings, came to be dismissed for default on 19.08.2002. It appears, at the time of the dismissal for default, the Executing Court has not passed any order with respect to attachment, such as whether it will continue or ceased to operate, fixing the period, etc. In the absence of any such specific order, the attachment effected on 25.10.1995 was ceased and came to an end as on 19.08.2002, as contemplated under Order 21 Rule 57(2) of the Code.

4.Thereafter, the decree holder filed another execution petition under Order 21 Rule 66 and 72 of the Code for the realization of the decree amount, as if giving particulars in column 5b of the E.P., that the property was attached on 25.10.1995. In column 11 of the E.P., the prayer was to sell the property attached as described in the schedule, which belongs to the first defendant/revision petitioner. On the basis, as if the attachment was effected on 25.10.1995, the E.P. No.126/03 was filed, proceeded.

5.The revision petitioner filed counter, dated 10.04.2004 before the Executing Court on 15.04.2004, wherein he has averred that the E.P.No.27 of 1995 was dismissed by this Court without specifying whether the attachment continues or ceases or upto which period the attachment continues or the date on which the attachment ceases and therefore, under Order 21 Rule 57(2) of the Code, the attachment shall be deemed to have ceased. Thus stating, the E.P. was opposed, that the petition filed without following the provisions of law in respect of attachment of the property is not maintainable and the same should be dismissed in limine. Despite objection, forthwith, no application was filed by the decree holder for amending the E.P., seeking for attachment as contemplated under Order 21 Rule 54 of the Code. But belatedly, on 29.06.2004, E.A.No.803 of 2004 was filed to include the prayer for attachment in the relief column, which was opposed by the revision petitioner/judgment debtor.

6.The trial court, considering the rival contentions of the parties and the filing of E.P. within time, felt that the prayer sought for is, only the correction of technical in nature, which requires to be allowed, to render justice, probably, enabling the decree holder to realize the decree amount, which he got on 15.6.1992. However, considering the fact that the amendment application was filed when the E.P. was posted for hearing the arguments of both sides and for orders, to compensate the delay, amendment was allowed, on payment of cost of Rs.250/-, which caused grievance to the judgment debtor and the result is the revision.

7.Heard the learned counsel for the revision petitioner and the learned counsel for the respondent.

8.The admitted position is, that an executable decree has been passed, in this case on 15.6.1992 and therefore to execute the said decree, E.P. should be filed within 12 years, as contemplated under the Limitation Act. It is also an admitted position, that the present E.P.