Section 48 of the Civil Procedure Code, which provides for a 12-year limitation period for the execution of decrees, is controlled by Section 15 of the Limitation Act. Therefore, the period during which the execution case is stayed by an order of the appellate Court can be excluded from the computation of the limitation period.

Judgement

MOHAPATRA, J. :- This appeal of the judgment-debtor No.6, arising out of an execution proceeding, is against the judgment of Sri R.C. Misra, Subordinate Judge of Berhampur, rejecting his petition under section 47, Civil Procedure Code, taking up an objection of limitation. The decree, under execution, is a mortgage decree, the preliminary decree being dated 7-1-32 and the final decree being dated 2-11-32. The present execution petition was filed on 11-9-45, clearly beyond 12 years from the date of the final decree.

2. The original decree-holder was one Anem Tatayya. He had two sons, Anem Basanna and Anem Narasimhulu. Anem Narasimhulu is alive and has transferred his share in the decree to the 6th judgment-debtor, Krisna Chandra Sahani. Anem Basanna having died, his widow, Anem Peda Siva Paravatamma, has filed the present execution petition. Judgment-debtors 1 to 5 have no more interest inasmuch as they have sold their interest in the mortgage property and the sale proceeds have been paid towards the decree. The judgment-debtors 6 and 7 were subsequent purchasers in respect of some of the mortgage properties. The 7th judgment-debtor is dead and his two sons are judgment-debtors 8 and 9. Judgment-debtor No.6 is the present appellant.

3. Anem Basanna filed Execution Petition No.54/35 praying for sale of the properties in the possession of judgment-debtors 6 and 7. Judgment-debtor No.7 filed a counter objecting to the sale of the properties. The objections having been overruled, judgment-debtor No.7 filed an appeal (A.S.No.7/47) and obtained a stay order and consequently the sale in E.P. 54/35 was stayed. The interim stay order was passed on 21-4-38 and it was made final on 18-9-36. The stay having been made absolute, the Executing Court made an order on 16-10-36 "Stay made absolute. Petition closed". The appeal was dismissed on 8-3-39.

4. The main point, urged before us, is that the execution is barred by 12 years limitation as provided for under section 48, Civil Procedure Code, which runs as follows :

"48. (1) Where an application to execute a decree not being a decree granting an injunction has been made, no order for the execution of the same decree shall be made upon any fresh application presented after the expiration of twelve years from -

(a) the date of the decree sought to be executed, or

(b) where the decree or any subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods, the date of the default in making the payment or delivery in respect of which the applicant seeks to execute the decree.

(2) Nothing in this section shall be deemed -

(a) to preclude the Court from ordering the execution of a decree upon an application presented after expiration of the said term of twelve years, where the judgment-debtor has, by fraud or force, prevented the execution of the decree at some time within twelve years immediately before the date of the application : or

(b) to limit or otherwise affect the operation of article 183 of the First Schedule to the Indian Limitation Act, 1908."

5. The learned advocate, appearing on behalf of the decree-holder, very much relies upon the provisions of Section 15 of the Limitation Act and contends that the period during which the execution case was stayed by an order of the appellate Court has got to be excluded in the matter of computation of period of limitation of 12 years. The stay order having been obtained on 21-4-36 which was made absolute on 18-9-36, it continued till the date of the final disposal of the appeal which is 8-3-39. Therefore, he is entitled to the period covered between 21-4-36 to 8-3-39. If he is entitled to this period, the execution petition is manifestly within time.

6. Mr. H. Mohapatra, appearing on behalf of the appellant, contends that section 48, Civil Procedure Code, is a self-contained section and is not controlled by section 15 of the Limitation. Act. The important question, therefore, that aris