Civil Appeal No 858 of 1968
From the Judgment and Decree dated 7 7 67 of the Assam and Nagaland High Court at Gauhati in Misc
Appeal Nos 36 and 37 of 1966
Sarjoo Prasad and A K Nag for the appellant
B P Maheshwari for the respondent
The Judgment of the Court was delivered by RAY CJ
This appeal by certificate is from the order dated 26 July 1967 of the High Court of Assam
The only question in this appeal is whether the respondent s application filed on 27 July 1965 for execution of the decree obtained by him is barred by limitation
626 The respondent on 7 January 1952 obtained a decree against the appellant for the sum of Rs 71980 in a money suit filed in the Court of Subordinate Judge Gauhati
On 8 December 1956 the respondent decree holder filed an application No 8956 for executing the said decree
On 15 July 1957 the appellant the judgment debtor filed an application pleading adjustment of the decree
On 15 April 1958 the judgment debtor withdrew the said application
On 18 December 1957 the Subordinate Judge Gauhati dismissed the decree holder s application No 8956
The decree holder preferred an appeal
The High Court at Gauhati on 1 July 1959 set aside the order of the Subordinate Judge and allowed the appeal for execution of the decree
Meanwhile on 18 January 1958 the appellant judgment debtor in the Gauhati suit obtained a decree against the respondent for the sum of Rs 122000 in the Court of the Subordinate Judge at Nowgong
In execution of the decree in the Nowgong suit the appellant on or about 29 January 1958 obtained an attachment of the respondent s decree passed in the Gauhati suit
On 13 August 1959 the Subordinate Judge Gauhati struck off the execution application No 8956 from the file
The respondent filed an appeal against the decree obtained by the appellant in the Nowgong suit
The High Court on 28 April 1964 accepted the appeal filed by the respondent and dismissed the Nowgong suit filed by the appellant
On 27 July 1965 the respondent filed an application for execution in the Court of the Subordinate Judge Gauhati
The appellant preferred an objection contending that the application is barred by limitation
On 4 March 1966 the Subordinate Judge dismissed the execution application as barred by time
On 26 July 1967 the High Court accepted the appeal filed by the respondent and directed the execution to proceed
The contention of the appellant is that the order obtained by the appellant attaching the respondent s decree did not amount to a stay within the meaning of section 15 of the Indian Limitation Act 1908 and therefore the respondent s application for execution which was filed on 27 July 1965 was barred by limitation
The appellant contended that when the Subordinate Judge Gauhati on 13 August 1959 struck off the execution application of the respondent the respondent should have filed an application for execution within three years from that date
The High Court referred to the order dated 29 January 1958 passed by the Nowgong Court attaching the decree obtained by the respondent
The High Court relied on the provisions contained in Order 21 Rule 53 1 b of the Code of Civil Procedure and held that the attachment continued restraining the respondent from executing the decree until the notice issued by the Court attaching the decree was recalled
The Nowgong court did not pass any order recalling the 627 order
On 1 March 1958 the Nowgong court passed an order which was as follows Notice served
No objection filed by J D meaning thereby judgment debtor
Heard both parties
Execution case is struck off for the present
Attachment to continue until further orders
 In the context of this order of attachment passed by the Nowgong court the attachment continued until the Nowgong suit was dismissed by the High Court on 28 April 1964
The High Court rightly held that there was no question of limitation because the application was filed within three years from 28 April 1964 when the bar against execution was raised and the order restraining the respondent decree holder from executing the decree in the Gauhati suit ceased to be operative
Another contention which had been raised by the appellant and repeated here is that when the Gauhati court on 13 August 1959 struck off the execution case No 8956 the execution application filed on 27 July 1965 was barred by time
The High Court held that the Gauhati Court on 13 August 1959 merely struck off the execution application and therefore the subsequent application which was made was a continuation of the execution proceedings
The High Court held that striking off the application did not amount to any order deciding the merits of the application
The order obtained by the appellant attaching the decree of the respondent in the Gauhati suit has been rightly held by the High Court to have precluded the respondent from executing the decree during the time the attachment was in force
The other conclusion of the High Court that the execution application dated 27 July 1965 was a continuation of the earlier application is also correct
The order striking off the execution application has been rightly construed by the High Court as merely consigning the application to the Record Room for statistical purposes
The application dated 27 July 1965 indicates in column 2 as the respondent rightly stated that the previous application for execution was struck off on 13 August 1959 because of the order of attachment passed by the Nowgong court
The attachment order was nullified only when the appellant s suit was dismissed by the High Court on 28 April 1964
The respondent s decree became executable at that time
The inescapable conclusion is that the application for execution on 27 July 1965 is a continuation of the old application
For these reasons the judgment of the High Court is affirmed
The appeal is dismissed with costs
MR Appeal dismissed


Summary:
The respondent obtained a money decree against the appellant from the Subordinate judge Gauhati and applied for its execution
The appellant applied for an adjustment of the decree and the respondent s application for execution was dismissed
The appellant then obtained a decree from the Subordinate Judge Nowgong against the respondent and in its execution got his Gauhati decree attached
The appellant then withdrew his adjustment application
The High Court allowed the respondent s appeal for execution of the Gauhati decree
The Subordinate Judge Gauhati struck off his original execution application from the file
Thereafter the attachment order ceased to be operative on account of the High Court s allowance of the respondent s appeal in the Nowgong matter and the respondent again applied for execution of the Gauhati decree but the Subordinate Judge Gauhati dismissed the application as time barred
The High Court allowed his appeal and directed the execution to proceed
The appellant contended before this Court that attachment of the respondent s decree did not amount to a stay  within the meaning of section 15 of the Indian Limitation Act and therefore his second application for execution was barred by limitation not having been filed within three years of the first one being struck off by the Subordinate Judge Gauhati
Dismissing the appeal the Court  HELD 1 The order obtained by the appellant attaching the decree of the respondent precluded the respondent from executing the decree during the time the attachment was in force
There was no question of limitation because the application was filed within three years from 28 April 1964 when the bar against execution was raised and the attachment order ceased to be operative
627B C 2 The order striking off the execution application was mere consigning it to the record room for statistical purposes
The application for execution on 27th July 1965 is a continuation of the old application
627D E