Govinda Menon, J. - This Appeal arises in execution of the decree in O.S. No. 2 of 1934 on the file of the District Court, East Tanjore at Nagapattinam. The decree-holders’ application to execute the decree has been held to be barred by the lower Court on the ground that it was filed more than three years after the final order was passed on an earlier application. The facts giving rise to this litigation are as follows:-

In O.S. No. 2 of 1934 a decree was passed against all the defendants of whom defendants 1 to 5 formed one group and defendants 6 and 7 another. On 24th April, 1934 there was an appeal against that but that was dismissed on 9th. February, 1939. The first application for the execution of the decree was filed on 13th August, 1940 on which final order was passed on 20th October, 1942. The present application for execution directed against defendants 6 and 7 alone was filed on 23rd September, 1946 more than three years after final orders had been passed on the earlier application and the objection taken by the judgment-debtors that the application was barred was sought to be got over by the decree-holders stating that there was an earlier application for the issue of a cheque which should be construed as a step-in-aid of execution. The learned District Judge has now held that the earlier application for the issue of cheque would not amount to a step-in-aid of execution and, therefore since the present execution petition was filed more than three years after final orders had been passed on the earlier application it was barred by limitation.

How the application for cheque came to be ordered is in the following way. Against the same judgment-debtors there were other decrees in O.S. Nos. 48 of 1932, 43 of 1932 and a number of other suits as well and in all of them large sums of money were decreed in favour of the plaintiffs as against the present judgmentdebtors and in execution of some of the decrees, the properties belonging to defendants 1 to 5 were the subject of attachment. At that time an application was filed by the second defendant in the present suit in the other proceedings stating that he and his relations have agreed to sell some of the attached properties and other lands in Swarnakkudi village in favour of one Ramanuja Mudaliar of Tiruvarur and permission of the Court was, therefore, requested for the same. The affidavit filed in support of the application by V.K.C. Kandaswami Thevar sets out the reasons why the application was made. In paragraph 5 of the affidavit it is stated that the second defendant and his brothers have negotiated for sale of 156 acres 71 cents as well as a few acres of their lands in the said village of Swarnakkudi which have not been attached to Sri G. Ramanuja Mudaliar of Tiruvarur for a sum of Rs. 94,000. There was a mortgage decree for Rs. 44,500 and a second mortgage for Rs. 6,500 over the said properties. It was therefore proposed to pay Rs. 51,000 towards the said encumbrances and Rs. 3,000 towards their share of sale expenses. It was agreed that defendants 2 and 5 should take only Rs. 4,174-8-0 for family expenses and for paying off sundry debts. The balance of the amount of Rs. 35,825-8-0 would be available to the decree-holders in the various suits mentioned by them. It was further alleged that the proposed sale was very advantageous to the debtors as well as the creditors as about fifty per cent. of the decree debts would be paid off thereby. Then the next statement is that they have made the proposal to many of the creditors who have approved of the same and given their consent in writing.

When the application supported by this affidavit came up before the Court an order was passed by the learned District Judge on 10th October, 1944 wherein he stated that in addition to the decree-holders in O.S. Nos. 48 of 1932 and 43 of 1932 other decree holders have filed their consent memos, agreeing to the terms set out in the affidavit of the second defendant. One of the conditions w

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