The period during which the execution of a decree is stayed should be excluded while computing the limitation period for execution of the decree under Section 15 of the Limitation Act.

D. K. Seth, J.

1. Original suit No. 11 of 1988 was decreed on 21st August, 1985 ex parte. Execution Case No. 55 of 1985 was levied out of the said decree. The petitioner filed application under Order IX, Rule 13, CPC for setting aside the said ex pane decree wherein by order dated 17th October, 1986, the execution was stayed till further orders. Misc. Case No. 68 of 1986 arising out of the said proceedings under Order IX, Rule 13, CPC in which the above interim order was passed was dismissed on 5th August, 1988, by reason whereof the order of stay granted ceased to be operative. By order dated 21st August, 1988, Execution Case No. 55 of 1985 stood dismissed for non-prosecution. On 26th September, 1988, an application for execution having been moved, Execution Case No. 35 of 1988 was registered. The petitioner took an objection before the learned trial court that the said execution case is not maintainable because of lapse of three years in between the date of the decree and the levy of execution in view of Article 135 of the Schedule to the Limitation Act where the period for execution of the present decree was prescribed as three years. The learned Munsif, by order dated 20th February, 1991 had allowed the said application and dismissed the execution. Against the said order dated 20th February, 1991, the opposite party moved Civil Revision No. 87 of 1991 before the Additional District Judge, VIII Court, Ghaziabad who, by order dated 13th March, 1995, allowed the said revision. It is against the said order the present revision has been filed.

2. MR. Pramod Kumar Jain led by MR. S. A. Shah, learned counsel for the petitioner, contends that the revision was allowed on a date when there was a strike by the lawyers ex pane without giving any opportunity to the petitioner, which according to him, is in clear violation of the principles of equity and natural justice. According to him, the execution could not be maintained beyond three years because of the fact even excluding the period during which the execution remained stayed. Therefore, the impugned order should be set aside.

Mr. M. D. Singh, learned counsel for the opposite-party, on the other hand, contends, that in view of Section 15 of the Limitation Act, the period during which the execution could not be proceeded is to be excluded while computing the period of limitation. Therefore, there is no infirmity in the order passed by the revisional court. He further submits that there having been no order of stay of execution after the revisional order was passed, the execution had proceeded with and completed and the decree has been satisfied. Therefore, the present writ petition has become infructuous. Any decision on the question would be an empty formality.

3. FROM the translation made at the Bar, it appears from the order impugned that the learned Revisional court had found on the basis of the record that the execution remained stayed between the period 17- 1-1986 and 5-8-1988 during the pendency of Misc. Case No. 68 of 1986 which fact is also not disputed by Mr. Shah. The suit was decreed on 21st February, 1985. Till the execution was stayed, hardly one year had passed and after the stay stood vacated, there was hardly two months gap. Therefore, if the period during which by reason of the operation of the stay order, the decree holder was prevented from proceeding with the execution is excluded, in that event, it cannot be said that the second execution levied was beyond three years. Section 15 of the Limitation Act is quoted below: "15. Exclusion of time in certain other cases.- In computing the period of limitation for any suit or application for the execution of a decree, the institution or execution of which has been stayed by injunction or order, the time of the continuance of the injunction or order, the day on which it was issued or made, and the day on which it was withdrawn, shall be excluded. (2) In computing the period of limitation for any suit of which