The main legal point established in the judgment is the interpretation and application of the provisions of Section 48, Civil P.C., Section 15(1) and 29(2), Limitation Act, and Section 23, C.P. and Berar Debt Conciliation Act, 1933 in determining the period of limitation for the execution of a decree.

1. This is an appeal by Meer Bismilla, the judgment-debtor, to set aside the order dated 4-11-1940 passed by the District Court, West Berar Division, Akola, in Civil Appeal No. 11-B of 1940, affirming the order dated 27-6-1940 passed by the Court of the Subordinate Judge, 2nd Class, Malkapur, in execution, holding that the application dated 12-6-1939 made by the respondents for execution of the decree, dated 12-12-1924, in civil suit No. 190 of 1924 was within limitation.

2. The question for decision in this appeal is whether the application made on 12-6-1939 by the respondents for execution of the decree dated 12-12-1924 in Civil Suit No. 190 of 1924 was barred by limitation under Section 48, Civil P.C. In order to decide the question it is necessary to set out briefly a few relevant facts.

(a) Binjraj Sawatram, Marwadi, obtained a decree against the appellant, Meer Bismilla on 12-12-1924 in civil suit No. 190 of 1924 in the Court of the Subordinate Judge, 1st Class, Mulkapur. The decree-holder filed five successive applications for execution of the decree. Each application was within limitation under Article 182, Limitation Act, 1908, as it was filed within three years from the date of the, order passed on the previous application.

(b) Binjraj Sawatram died on 5-5-1933. After his death his son Jagannath and his brother Murlidhar applied on 2-2-1934 for substitution of their names as decree-holders in place of the original decree-holder Binjraj Sawatram, the deceased, and for execution of the decree. Their application for execution was within limitation as it was filed within 3 years of the order passed on the previous execution application. Their names were substituted by an order of the executing Court passed on 14-7-1934. Meer Bismilla, the judgment-debtor, filed an application on 6-10-1934 claiming a set off of Rs. 2790-4-2 as his share of the decree in civil suit No. 1 of 1927 against the decretal amount for which execution had been sought and asked for 12 months' time for payment. The executing Court by the order dated 28-9-1935 rejected the prayer for a set off. On that date the fields of Meer Bismilla were attached and he was given time for payment till 1-12-1935. The execution was struck off on 28-9-1935 and the attachment however was to continue.

(c) The decree-holders filed on 10-12-1937 a seventh application for execution of the decree. This application was also within limitation. A 'C' form was prepared on 14-8-1937 and sent to the Collector for execution. The execution case in the civil Court was struck off on that date because of the transfer.

(d) During the pendency of the execution case, Meer Bismilla, the judgment-debtor, filed an application before the Debt Conciliation Board, Malkapur, on 2-1-1937, for conciliation of his debts. This application was dismissed by the Board on 14-12-1938. Meer Bismilla filed an application on 3-3-1939 for review of the order of the Board dated 14-12-1938 as he was entitled to do under Section 19, C.P. and Berar Debt Conciliation Act, 1933. The review application was dismissed by the Board on 542-1939.

(e) The Extra-Assistant Commissioner, Khamgaon, sent an intimation to the civil Court on 11-12-1937 which is reproduced below:

''D.H. remained absent on 8-11-1937 though duly served. Case dismissed in his default and process fee (Rs. 3) recovered and case filed on 7-12-1937.'' Vide File C. p. 17.

The record of the Collector's case is not before us. In the absence of the record it is not possible to state whether the case was fixed for hearing on 8-11-1937 or 7-12-1937. The decree-holders either had no notice of the hearing on these dates or they absented themselves presumably because nothing further could be done in the matter of the execution of the decree on account of the pendency of the proceedings before the Debt Conciliation Board.

(f) While the review application of Meer Bismilla was pending before the Board, the decree-holders filed an eighth application on 12-6-1939 for