PATHUMMA Vs. MYTHIYANKUTTY ASSAN
HIGH COURT OF KERALA
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(1.) The question that arises for consideration in this appeal preferred by the defendant is whether the execution application filed by the decree holder on 13.11.1952 is barred as being one filed beyond twelve years of the decree. The decree was passed on 24.1.1109. E.P. 530 was filed on 10.6.1120 for execution of the decree. As can be seen from the copy of the progress Diary in the suit, on 2.3.1121 the defendant filed a petition to set aside the decree under O.9 R.13. On 15.1.1122 the said petition was dismissed. A civil miscellaneous appeal was preferred against this to the District Court as C.M.A. No.14 of 1122. This was allowed on 10.2.1122 and the suit restored. On 26.2.1122 the plaintiff filed a petition in the execution court praying that E.P. No. 530 of 1120 might be kept pending and further steps stayed. This was allowed on 12.3.1122 and one months stay granted. On 12.4.1122 the plaintiff applied for time and it was adjourned to 26.4.1122. On that day it was recorded that no application for further steps was received and the petition was posted for disposal to 1.5.1122. On that day it was dismissed. In the meanwhile, the plaintiff had filed C.R.P. 407 of 1122 in the High Court seeking to set aside the decision in C.M.A. 14 of 1122. This petition was allowed on 7.4.1124 and the Civil Miscellaneous Appeal remanded to the first appellate Court for fresh disposal. As per judgment dated 29.12.1124 the C.M.A. was dismissed. A revision preferred by the defendant against this as C.R.P. 485 of 1125 was also dismissed on 30.7.1952. The present execution petition was filed on 13.11.1952. While the defendants contention is that the execution petition is barred under S. 48 C.P.C. being one filed 12 years after the decree, on behalf of the plaintiff it is urged that in view of the setting aside of the original decree and the restoration of the suit as per the Trial Courts decision on 10.7.1122 and the subsequent proceedings in the appellate courts the execution is not barred. From the facts pointed out above it is clear that on 1.5.1122 there was no existing decree as the decree passed on 24.1.1109 had been set aside as per the judgment in C.M.A. 14 of 1122 dated 10.2.1122. Only when the High Court ordered a remand in C.R.P. 407 of 1122 the decree was again restored. That order was passed only on 7.4.1124. So on 1.5.1122 the plaintiff was not in a position to execute the decree of 24.1.1109 as the same was not existing then. Under such circumstances, dismissal of E.P. 530 of 1120 on 1.5.1122 cannot be considered as one due to any default of the decree holder and the order can be considered only as a ministerial one. When as per the remand order of the High Court the decree was restored and it again became executable E.P. 530 of 1120 must be deemed to have been revived under law. As long as there was no further judicial order on that dismissing it, it must be deemed to be pending. So the present application, namely, E.P. 521 of 1952, is in the eye of law only a petition to revive a prior application and for permission to proceed with the execution. In 3 Cochin 1 cited on behalf of the respondent when an execution application for attachment and sale of property was dismissed due to the upholding of the claim of a third party it was held that when in a suit by the decree holder to set aside the claim order he succeeded a subsequent petition filed must be regarded as one for revival of the former proceedings and that there was no bar as the subsequent petition was filed within 3 years of the final decision in the suit to set aside the claim order. There 28 Madras 50 and 25 Calcutta 437 were followed. In the Madras case Suppa Reddiar v. Avudai Ammal (28 Madras 50) the decree holder assigned to decree to the respondent therein. The respondent applied for execution and sale of the property. The appellant therein claimed before the execution court that the assignment was for his benefit and the execution court upholding the contention dismissed the petition. Then the respondent filed an original suit to uphold her claim and succeeded in setting aside the prior order of the execution court. When execution was taken out again a plea of limitation was raised. The Full Bench held that there was no bar as the subsequent execution application must be deemed to be one to revive the prior application. The following observations there at page 53 may be referred to:-
We think that the application in this case should be treated not as an application for execution, but as an application to revive or continue an application for execution that had been wrongly dismissed as a competent court has declared. The article applicable is, therefore, 178 of the Second Schedule of the Limitation Act, and time began to run from the date of the appellate decree declaring the respondents right to execute, which was the 20th February 1901. This application was, therefore, in time.
These principles are fully applicable here. Hence I hold that the lower courts were right in holding that the execution is not barred.
(2.) In the result the appeal is dismissed with costs.;
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