Period of limitation.

This petition raises the question of limitation under the following circumstances. The decree was made in M.S.C. No. 5942 of 1942 on 22nd January, 1943. By reason of Ordinance V of 1953, leading up to Act I of 1955, the decree-holder was disabled from executing the decree till 1st July, 1955. On the date on which the 12 years period of limitation prescribed by section 48 of the Civil Procedure Code expired, i.e., 22nd January, 1955, these moratorium Acts were in force. Subsequently, an execution petition was filed where under an order for the arrest of the judgment-debtor was made. As against this order, there was a new trial application which was finally dismissed on 10th September, 1956. The decree-holder claimed that both by virtue of the moratorium Acts and the stay granted in the new trial application, his prior execution petition E.P. No. 687 of 1957 was in time. It may be mentioned that an application for the transmission of the decree was filed on 12th February, 1957 and was ordered on 3rd April, 1957. The prior execution petition itself was filed on 1st May, 1957.

The Assistant Judge of the City Civil Court held that the prior E.P. No. 687 of 1957 was in time.

It would appear that that execution petition was partly satisfied by the payment of some amounts which were in the hands of an Advocate-Receiver. That execution petition was accordingly closed.

The execution petition that leads to the present revision is E.P. No. 754 of 1958. In answer to this petition, the judgment-debtor claimed that the execution petition was barred by time. He relied on section 48, Civil Procedure Code. But the Assistant Judge of the City Civil Court held that in view of the order on the prior application, this objection could not be accepted. It is that contention that is pressed in this revision.

It is not denied that the normal period of 12 years provided in section 48, Civil Procedure Code, would expire on 22nd January, 1955. It is not also denied that on the date when this period would have expired, the various moratorium Act were in force, which extended the period of limitation. It would be sufficient to refer to section 8 of Madras Act I of 1955 which provided for the exclusion of the time during "which the making of the application for the execution of a decree in respect of debt was barred by section 3 of that Act. There was a similar provision in the earlier Act V of 1954. If, therefore, this period of 1 year, 6 months and odd so directed to be excluded by the relevant provisions of the moratorium Acts is given credit to, the period of 12 years would expire only in or about September, 1956. It is not necessary to consider whether the prior execution application E.P. No. 687 of 1957 having been filed in Court only on 1st May, 1957 could be regarded as within time, because that point was expressly considered by the executing Court and decided against the judgment-debtor. It is settled law that principles of res judicata are applicable to execution proceedings and this decision cannot, therefore, be agitated in the present petition.

Even apart from this, it seems clear that in a case like the present, the decree-holder has got an extended period within which he can seek execution of the decree. Under section 4 (1) of Act I of 1955, it is provided that notwithstanding any decree of Court, an agriculturist shall be entitled to pay the decree amount in certain specified instalments. Broadly stated, the decree debt is payable in four annual instalments, on the 1st of July, 1955 and the 1st of July of the three succeeding years. Sub-section (7) of section 4 reads:

"The provision of sub-section (1) shall, for purposes of execution, be deemed to be a subsequent order of Court within the meaning of clause (b) of sub-section (1) of section 48 of the Code of Civil Procedure, 1908."

In plain words, this sub-section lays down that whether or not, there is any specific order of Court directing payment of the decree debt in such instalments, e