An execution petition filed within the limitation period cannot be dismissed on grounds of subsequent delays in sales or other proceedings.

J U D G M E N T

This appeal arises out of the judgment dated

20.01.2012 in A.S No.29/2011 on the files of Sub Court, Neyyattinkara, which reversed the dismissal of the claim petition by the Additional Munsiff Court-II, Neyyattinkara, on 05.10.2010.

2. The appellant is a decree holder in a suit for recovery of money filed as O.S No.664/1996, which was decreed on 20.03.1997 and an Execution Petition lodged on 03.07.1997 as E.P No.202/1997. Since the sole judgment debtor died, the legal representatives were impleaded on 24.10.1997. Consequently, on certain technical reason, the Execution Petition was dismissed. On 12.02.2009, a fresh Execution Petition was filed as E.P No.73/2009 and E.A No.163/2009 was filed for attachment of the property of the judgment debtor and the attachment was ordered on 13.03.2009. On 24.07.2009, the said property was proclaimed to be sold under Order 21 Rule 66 of the Code of Civil Procedure (for short ‘CPC’). It is stated that the decree holder-Bank itself purchased the property. Subsequently, the 1^st respondent herein stating that he is a subsequent assignee of the property already sold in the auction, through a sale deed dated 24.03.1999, lodged an application under Order 21 Rule 97 of CPC, contending that as on the date of attachment, the judgment debtor did not have the right title and interest over the property. The claim petition was negated on the ground that the purchase of the property was for an amount of Rs.7,500/-, whereas the property itself was having a value of an amount of Rs.1,00,000/-. The Execution Court further found that the sale of the property was to defeat the legitimate claim of a creditor and therefore the said sale is void. Accordingly, the claim petition was dismissed. Aggrieved, the claim petitioner filed A.S No.29/2011 and by judgment dated 20.01.2012, the First Appellate Court in an erroneous application of the law held that since the attachment over the claim petition property was after 12 years of passing of the decree, the execution is time barred and accordingly allowed the application, against which the decree holder-Bank has came up with the present appeal.

3. Heard Shri.R.S.Kalkura, the learned counsel appearing for the appellant and Shri.Sreekanth S. Nair, the learned counsel appearing for the 1^st respondent.

4. By order dated 19.06.2012, this appeal was admitted on the following substantial questions of law:-

1. When an attachment of property is sought to be effected long prior to the period of limitation prescribed under Article 136 of the Limitation Act and it is sought to be brought to sale by a proclamation subsequently, can the court dismiss the execution petition on the ground of bar of limitation especially when a step in progress of the execution has already been initiated against the property of the judgment debtor within the period of limitation prescribed?

2. Is not a notice under Rule 66 of Order XXI of the Code issued to the respondents be a step in progress in execution and if taken prior to the period of limitation, will not the decree holder be entitled to bring the property to sale?

5. Shri.R.S.Kalkura, the learned counsel appearing for the appellant would contend that the findings rendered by the First Appellate Court is perverse. Article 136 of the Limitation Act, 1963 , provides 12 years for a execution of a decree and that within such time, any number of execution petitions can be filed. The execution petition was dismissed for a technical reason in the year 1999 and that before the expiry of the period of limitation provided under Article 136 of the , the present execution petition was filed