Appeal against order raising attachment in execution.

In O.S.No.1 of 1935 on the file of the Subordinate Judge of Devakotai a decree was passed in favour of the plaintiffs for a sum of Rs.30,263-3-0 with interest and proportionate costs. There was a further provision that the plaintiffs do execute a registered release deed in accordance with an agreement marked in the case as Exhibit-A and that the decree be executed only after the execution of the release deed. The result of this provision was that the plaintiffs did not have the unrestricted right of executing the decree before complying with the provisions for execution of the release deed. The present appellants are the legal representatives of the first plaintiff whose application for executing the decree has been dismissed on the ground of bar of limitation.

A few dates have to be mentioned in order to correctly understand the relevancy of the legal arguments. The trial Court passed the decree on the 24th August, 1937, and on appeal therefrom the original decree was confirmed on 17th April, 1941. Thereafter E.P.No.318 of 1941 was filed by the attachment of movable properties. This application was resisted by the judgment-debtors on the ground that the decree-holders had not complied with the provision regarding the execution of the release deed and that therefore the decree could not be executed. The learned Subordinate Judge enquired into the matter and overruled the objection on 10th July, 1942, giving it as his reason that the release deed filed in Court was valid and directed the attachment of the movable properties. But the warrant could not be executed as it was impossible to find any movable properties which could be attached. The result was that the petition was dismissed on 31st July, 1942. But against the order, dated 10th July, 1942, overruling the contention regarding the executability of the decree the judgment-debtors filed C.M.A.No.329 of 1942 and obtained stay of execution which was later on dissolved. C.M.A.No.329 of 1942 came up for final disposal on 13th July, 1943 and was dismissed with a reservation that the question regarding the validity or otherwise of the release deed filed by the decree-holders was left open. On 5th July, 1946, E.P.No.120 of 1946 was filed by the decree-holders again tor execution but as it was found that the 1st defendant died, it was dismissed on 17th August, 1946. Thereafter E.P.No.8 of 1947 was filed on 7th November, 1946, for execution of the decree out of which this appeal has arisen. On the objection raised by the judgment-debtors that the execution of the decree has become barred because more than three years had elapsed from 10th July, 1942, when E.P.No. 120 of 1946 was filed on 5th July, 1946, the learned Subordinate Judge accepted their contention and held that the execution petition was barred by limitation. He also found that the decree-holders have complied with the provision regarding the execution of the release deed and that therefore the release deed put into Court with E.P.No.318 of 1941 was a proper one.

E.P.No.120 of 1946 was filed within three years of the date, viz., 13th July, 1943 when the High Court confirmed the order of the Subordinate Judge in E.P. No.318 of 1941, dated 10th July, 1942. If the period of limitation is computed from the date of the appellate order then E.P.No.120 of 1946 is in time. If on the other hand the period has to be computed from the date of the order of the Subordinate Judge, viz., 10th July, 1942, then E.P.No.120 of 1946 was clearly out of time and the subsequent E.P.No.8 of 1947 was also barred by limitation. What is contended on behalf of the judgment-debtors is that the confirmation by the High Court on 13th July, 1943, of the order of the Subordinate Judge, dated 10th July, 1942, cannot be said to be a final order passed on an application by the decree-holder which was a step-in-aid of the execution as contemplated in clause 5 of the third column of Article 182 of the Limitation Act. The phrase “the final order passe