(Prayer: Appeal (disposed of on 2-4-1948) against the under of the District Court of Nellore, dated 26-1-46 in E.P. 4 of 1946 (E.P. 94 of 1944 in O.S. 39 of 1929 Sub Court of Nellore).)

The appellants are two brothers who were judgment debtors in a partition decree. The preliminary decree was passed on 3rd March 193

2. It contained provisions for giving the plaintiff who was a nephew some immediate executable reliefs:

(1) costs of Rs. 93-6-0 (2) partition and separate possession of specified immoveable properties and (3) Rs. 750 for past and subsequent mesne profits. This preliminary decree in due course fructified into a final decree on 8th September 193

2. The point this appeal raises for determination is whether E.P. No. 94 of 1944, which was filed on 8th September 1944 for these money reliefs is in time. It is admittedly more than 12 years after the preliminary decree was passed, but within this period dating from the final decree. At the time when this execution petition was filed there was another execution petition E.P. No. 85 of 1942 in fact pending. It was filed by the decree-holder against these same judgment-debtors for the recovery of these same money reliefs accorded in the preliminary partition decree by attachment and sale of some specified immoveable property. Then in E.P. No. 94 of 1944 the decree-holder sought to attach again it would appear by way of abundant caution the same immoveable property but added prayers for arrest and attachment of moveable property as well.

(2) A specific objection was taken to the E.P. No. 94 of 1944 in the counter of the first respondent in paragraph 2 that this execution petition was barred by the 12 years limitation period prescribed by S. 48 of the Civil Procedure Code. The learned District Judge has given no finding on this point at all. In paragraph 4 of his judgment he stated that the first defendant contended that the preliminary decree was only a declaratory decree and that it was unexecutable and secondly that this execution petition was barred by limitation. He observed then that both these contentions were devoid of substance, but nowhere in his judgment has he dealt specifically with the point whether E.P. No. 94 of 1944 was barred under S. 48 of the Civil Procedure Code.

(3) Mr. Srinivasamurthi, Advocate for the respondents concedes that the execution petition is more than 12 years from the date of the preliminary decree but as I understand his argument he urges that it was by way of continuation of E.P. No. 85 of 194

2. I am wholly unable to follow this contention. E.P. No. 94 of 1944 was filed outside the 12 year prescribed by law and in it plaintiff has sought other reliefs in addition to those sought in E.P. No. 85 of 194

2. The next point urged is that the date of the decree for the purpose of applying S. 48 of the Civil Procedure Code is the date of the final decree. The criterion date, however, must be in my opinion the date on which the decree becomes operative, namely, that on which the plaintiff is at liberty to file an execution petition to enforce a relief which the Court has granted him. It was clearly open to the plaintiff to file an execution petition to enforce the preliminary decree reliefs granted to him on 3rd March 1932 and so far as such reliefs are concerned this is the criterion date for commencing the 12 year period. I find that E.P. No. 94 of 1944 is clearly time barred under S. 48 of the Civil Procedure Code. It is open to the plaintiff to proceed with E.P. No. 85 of 1942 which is still pending and admittedly not time barred, subject to any contentions raised therein. It is regrettable that as the records in E.P. No. 85 of 1942 have also been sent up to this Court in connection with the present appeal, those execution proceedings have also been hung up since 1946. The appeal is allowed with costs. Advocates fee, Rs. 25.