In execution of decrees, an application in a different proceeding can be a valid step in aid of execution, impacting the limitation period.

1. The appeal in first instance came up for hearing before the Hon'ble Mr. justice Syed Qamar Hasan on 13/02/1961 and His Lordship passed the following Order:
SYED QAMAR HASAN, J.: -
The above appeals, are directed against the common appellate order dated 23/04/1956 of the Subordinate Judge, Nellore in A.S. Nos.37 and 38 of 1956 confirming the common order passed by the District Munsif, Nellore respectively in E.P.269/50 in O.S.380/39 and E.P.541/52 in O.S.679/40. This judgment will similarly govern both the appeals referred to above.

2. The question involved in the first mentioned appeal is whether the 2nd appellant, Nagineni Ayyavaru Naidu, was entitled to execute the final decree for sale in O.S. No.380 of 1939 in preference to the attaching decree - holder, respondent No.2 herein. In the second appeal, the point to be considered is whether E.P.541/52 filed by the respondent in O.S. No.679 of 1940 was in time.

3. Before adverting to the facts of the case and the arguments addressed to me on behalf of the appellants, I may mention that none of the. respondents have put in appearance in the appeals to which they are a. party and I must thank Mr. T. Veerabhadrayya and Mr. Poornaiah for having acted in this appeal as amicus curiae on behalf of the respondents. The facts briefly stated are these: Koppolu Venkataswarni; the appellant instituted O.S. No.380 of 1939 against the mortgagors for recovery of mortgage debt and ultimately a preliminary decree was passed in his favour on 20-1-44. In the meantime Kukka - palli Pollayya, the respondent filed O.S. No.679 of 1940 against Koppolu Venkataswamy, the decree - holder in O.S. No.380 of 1939 and obtained a money decree. Thus there came into being two decree - holders, one of whom was a judgment - debtor to the other. In execution of his money decree, the decree - holder in O.S No.679 of 1940 filed E.P.81 of 1945 to attach the preliminary decree. The attachment was made absolute on 27/09/1945 without any protest on the part of Koppolu Venkataswarni. By I.A.132 of 1947 dated 17-1-47 he sought am order for making the preliminary decree final and that prayer was granted and the decree was made final on 25/03/1947. The decree - holder in O.S.380/39 transferred the final decree by a registered document dated 21/03/1950 in favour of Nagineni Ayyavaru Naidu, who is 2nd appellant in C.M.S.A.23 of 1959 and as such he filed E.P.269 of 1950 for recognition of transfer of the decree and execution thereof by sale of the hypotheca. This petition hanged fire till 1952 when the attaching creditor filed E.P. No.542 of 1952 with the same prayer.

4. In his own decree in O.S. No.679 of 1940 which has been obtained against the original decree - holder in O.S. No.380 of 1939, Kukkap - alli Polayya filed E.P. No.541 of 1952 with a prayer for attachment of moveables belonging to the judgment - debtor. His contention was that he had filed a petition on 02/09/1941 and recovered rateables in O.S. No.422 of 1936 and his execution petition was dismissed. Then on 20/10/1941 he filed a petition and attached the decree in O.S. No.380 of 1939 and it was dismissed on 21/09/1942. Again he filed a petition on 14/01/1945 which was dismissed on 27/09/1945. Ever since then, though no fresh E.P. was filed, the contention was that as he had been executing the decree in O.S. No.380 of 1939 for the purpose of collecting the decretal amount, E.P. No.541 of 1952 was not barred by limitation. The judgment - debtor in his counter pleaded the bar of limitation.

5. In the Courts below the ar