The legality of previous execution petitions and the impact of a restraint order on subsequent applications for execution under the Limitation Act, Article 182.

Spencer, J.

1. The question is whether the execution petition filed on the 23rd March 1916 to execute the decree in O.S. No. 55 of 1904 is in time and the answer to this question depends on whether the execution petitions filed on 18th June 1914 and 22nd October 1914 by the transferee decree-holder, M. Narasayya, were made in accordance with law. It is true that on those dates Narasayya was restrained from executing the decree or otherwise realising the decree-debt by reason of the decree obtained by the plaintiffs in O.S. No. 835, of 1911, who are respondents in this appeal, and it is argued that, as no execution could take place without an execution petition being presented to the Court, the restraint order would render any application made in that connection by Narasayya illegal, as being in contravention of a decree of court.

2. On the other hand, it is clear that the only person competent at that date to apply for execution was the transferee decree-holder, Narasayya, whose transfer has been recognised on 30th September 1911 in proceedings to which the grandsons of Narayanamurthi, who are the respondents in this appeal, were parties. The respondents prior application to be added as supplemental decree-holders had failed by the dismissal of their execution petition on the 23rd October 1910, and they did not again apply to be placed on the record till 23rd March 1916. So that at the date when Narasayya filed his two execution petitions he was on the face of the decree the only person competent to execute it. The executing Court not having notice of the result of the Original Suit No. 835 of 1911, had no concern with the rights of any other person other than the right of the person appearing on the face of the decree as the decree-holder, as it did not then appear that any other person had taken the decree-holders place. See Jesoda Deye v. Kirtibash Dass (1891) I.L.R. 18 Cal. 639 As the Court was not then in a position to refuse to admit Narasayyas application and as he acted in the interest of whosoever might ultimately be found entitled to execute the decree in the litigation when pending, which terminated in the High Courts decree dated 15th August 1917 in appeal against the decree in O.S. No. 835 of 1911, I am of opinion that this application was a bona fide one made in accordance with law and that the District Judge was right in treating the present application of the respondents as saved thereby from becoming barred by limitation. As my learned brother is of the same opinion, the lower appellate Courts order returning the execution petition to the first court for execution is confirmed, and the appeal will be dismissed with costs.

Seshagiri Aiyar, J.

3. The facts which have given rise to the question of law are these: One Narayanamurthi, whom I shall hereafter call the testator brought Civil Suit No. 55 of 1904 on a mortgage: he died pendente lite : his widow was placed on the record and obtained a preliminary decree. The testator left more than will. There was litigation respecting the genuineness of these testamentary instruments between the widow on the one hand and her daughters sons who claimed as residuary legatees subject to the payment of a fixed sum to the widow. In the meantime, the widow transferred the decree to one Narasiah. On her application the final decree was passed on the 30th January 1912; he then applied to execute the decree but was resisted by the grandsons. The objection was overruled. The grandsons preferred an appeal against the order permitting Narasiah to execute the decree. It was dismissed in limine on the ground that as they were not on the record of the suit as legal representatives of the testator they had no locus standi to prefer the appeal. This order is conclusive of the contention that they were also co-nominee-parties to the decree by virtue of a previous infructuous application. After the dismissal of the appeal, the grandsons brought a regular suit in 1911 to which the widow