Ramachandra Iyer, C.J.-

L.P.A. No. 56 of 1960: The only question that arises for consideration in these appeals is whether the execution petition out of which the first appeals arise is barred by limitation. The appellant obtained a mortgage decree on 4th November, 1947. Under the decree, one-half share in item 3 to the plaint-schedule which belonged to defendant 5 was secured for the sum of Rs. 500 payable thereunder. Similarly, the other half share which the second defendant had in the same item was secured for payment of Rs. 400 due from him. Defendant 5, who claimed that he was the owner of the western half of the property, paid off his liability and full satisfaction was entered. On 28th September 1949, the appellant filed E.P. Nq. 704 of 1949 against the second defendant for sale of one-half share of item 3. The execution petition did not specify whether the property to be sold was the western half or the eastern half. The application, being found to be in order, was duly registered, and, in due course, sale papers were directed to be filed. It was at that time that the appellant, presumably under a mistake, mentioned in the sale papers that the property to be sold was the western half. That was, however, a mistake, for, as we said earlier, the western half was claimed by the fifth defendant who had already paid off his liability. But this mistake was not rectified before the sale ; perhaps, it suited the judgment-debtor himself to have the property of the fifth defendant sold and thereby save his property and he did not offer any objection to it. After the sale which was held on 8th February 1950, defendant 5 filed E.A. No. 307 of 1950 to set aside the sale on the ground that the Court had no jurisdiction to sell his property for the liability of the second defendant. His petition was accepted and the sale was set aside on 26th August 1954. On 2nd February, 1955, the appellant filed a fresh execution petition, bringing to sale the undivided half of Item 3 for enforcing the liability of the second defendant. Both the lower Courts held that the execution petition was not barred by limitation, the effect being only to revive the previous E.P. No. 704 of 1949. But, on a Second Appeal to this Court, Ganapatia Pillai, J., held that, as the appellant deliberately sought relief in respect of a property which belonged to a person who was not liable under the decree, viz., defendant 5, he could not be heard to complain that the petition was one in accordance with law and on its becoming infructuous, it could not be relied on to furnish the starting point for the subsequent execution petition on any theory of revivor. In that view, the learned Judge has dismissed the execution petition. L.P.A. No. 56 of 1960 is filed against the judgment.

From the facts stated above, it is clear and the position is not disputed,‘that E.P. No. 704 of 1949 was an application in accordance with law. The appellant only prayed for sale of an undivided half in the entire property, and it cannot be said that, even at the inception, he sought to sell the property of defendant 5. But, when the Court called for the sale papers, he did put up for sale the property of defendant 5. That is why the sale which took place under the orders for sale was set aside. That does not mean that the decree-holder deliberately sought a relief to which he was not entitled nor that the petition became infructuous by reason of his misconduct. The utmost that can be said of the decree-holder in the instant case is that he was under a mistake as to the identity of the property. As we stated earlier, it is significant that the judgment-debtor never brought to the notice of the decree-holder that the western half did not belong to him. Under those circumstances it is clear that the present execution petition, which was filed on 26th August 1954, for the identical relief, viz-, for sale of the undivided half in the entire property, could not be regarded otherwise, than as a petition

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