The main legal point established in the judgment is that a suit challenging an order of the executing Court does not necessarily qualify as a step-in-aid of execution under Article 182, Sub-clause 5 of the Limitation Act, and may not affect the limitation period for filing a subsequent execution application.

Abdur Rahman, J.

1. The only question to decide in this appeal is whether an application for execution presented by the decree-holder more than three years after the dismissal of his first petition can be, in view of the pendency of a subsequent declaratory suit which he had brought to get rid of an order made by the executing Court accepting a third partys claim petition, held to be within time in spite of the fact that the suit instituted by the decree-holder challenging the validity of the order of the executing Court had failed. This would depend on the decision as to the character and effect of the order of dismissal passed by the executing Court on accepting the objections raised by the third party to the attachment and on the question whether the declaratory suit can be regarded to be a step in aid of execution of the decree within the meaning of that expression as used in Article 182, Sub-clause 5 of the Limitation Act. If the order accepting the claim petition and cancelling the attachment is to become final only on the dismissal of the suit brought against the third party claimant and the execution application in which the order had been passed in his favour is to be deemed to remain pending in spite of its dismissal by the executing Court or if the steps, consisting of the institution of a declaratory suit questioning the correctness of the order passed in execution and on its failure of carrying the matter in appeal, taken by the decree-holder to remove the obstructions caused to him by the third party in raising objections to the attachment successfully, despite their failure to achieve the desired result, can be regarded to have been taken in continuation of the execution proceedings in such a manner as to keep the execution petition pending and alive, the execution petition filed by the decree-holder subsequently must be held to be within time. If, on the other hand, the order passed by the executing Court accepting the objections is to be held as final and remains, in view of the dismissal of the declaratory suit, unaffected and if the steps taken by the decree-holder in instituting such a suit cannot be considered to be passed in execution of the decree or in continuance of the execution proceedings, the subsequent application for execution must be held to be barred and the time spent in carrying on the declaratory suit cannot be calculated in counting the three years within which the second application should hare been made after the disposal of the first one and or disregarded as being irrelevant altogether.

2. The facts out of which the above question of limitation has emerged for decision are that a decree was passed on the 25th September, 1929 in O.S. No. 825 of 1929. The decree-holder made an application for execution (E. P. No. 610 of 1930) on the 17th October, 1930 for attachment and sale of an Immovable property. It Was attached but the third party objected to the attachment, on the ground that the property had been sold to him on the 2nd June, 1928 and that the judgment-debtor was not in possession of the attached property. This claim was allowed on the 8th September, 1931 and the application for execution dismissed. The decree-holder brought a suit (O.S. No. 774 of 1931) to set aside the order passed by the executing Court and for a declaration that the property attached by him belonged to his judgment-debtors and was liable to attachment in execution of his decree. The suit was dismissed on the 14th December, 1934 by the trial Court. An appeal was taken against that decree by the decree-holder to the Subordinate Judge of Kurnool (A.S. No. 70 of 1935). This was also dismissed but the learned Subordinate Judge in his judgment observed that a sum of Rs. 600 towards the unpaid balance of the price of the property purchased by him was still in the hands of the respondent who had put forward the sale in his favour and that the decree-holder might take out execution of that amount by appropriate pro