SUBRAMONIAM KUMARAN Vs. ESAKKIMADAN ARUMUGHOM
HIGH COURT OF KERALA
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(1.) Additional decree holders 2 and 3 are the appellants in this Second Appeal. The Second Appeal relates to an order in execution. The question for decision is whether the execution of the decree is barred by limitation. The decree is one for redemption. The appellate decree was passed on 1.4.1108. The first execution petition was filed on 26.5.1112. A copy of the decree was not produced along with the execution petition. On 28.5.1112 the court passed an order to the following effect: Decree not produced Rejected". The present execution petition was filed on 9.12.1121 more than 12 years after the date of the decree. The 4th defendant contended that the execution petition was barred by limitation. According to the decree holders the execution petition dated 26.5.1112 has not been judicially disposed of and the execution petition dated 9.12.1121 should be regarded as one in continuation of that petition. The execution court accepted the contention of the decree holders and held that execution was not barred by limitation. In appeal filed by the 4th defendant, the District Court held that the execution petition dated 26.5.1112 has been judicially disposed of, that the execution petition dated 9.12.1121 was a fresh execution petition and that it was barred by limitation.
(2.) The two questions that arise for consideration in the Second Appeal are:- (i) whether the execution petition dated 26.5.1112 which was filed without a copy of the decree was one in accordance with law, and (ii) whether the disposal of that execution petition on 28.5.1112 was a judicial disposal or only a ministerial disposal. The Code of Civil Procedure that was in force when the execution petition dated 26.5.1112 was presented was the Travancore Code of Civil Procedure, Act VIII of 1100. O.21 R.9(2) of that Code prescribed the requirements of a written application for execution of a decree. It was not stated in that sub-rule that a copy of the decree sought to be executed should be produced along with the execution petition. Sub-r. (3) of R.9 provides as follows:-
"The court to which an application is made under Sub-r. (2) may require the applicant to produce a certified copy of the decree.
The same is the provision in O.21 R. 11(3) of the Indian Code of Civil Procedure. It is clear from this that for an execution petition to be in accordance with law it is not necessary that it should be accompanied by a copy of the decree sought to be executed. The applicant is bound to produce a copy of the decree only if the court requires him to produce it.
(3.) R. 204 of the Travancore Civil Courts Guide which was in force when the execution petition was presented required that a copy of the decree should be produced along with the execution petition. It is therefore necessary to consider whether non compliance with that rule would make the execution petition one not in accordance with law. This question was considered by the Travancore High Court in Raman v. Narayana Pillai (18 TLJ 1). It was held in that case that non compliance with R.204 of the Civil Courts Guide would not by itself make an execution petition one not in accordance with law. Following the decision of the Madras High Court in Pachayappa Asari v. Poojali Seenan (28 Mad. 557) and that of the Bombay High Court in Ramachandra Sadashiv v. Lekshman Sadashiv (31 Bom. 162) Parameswara Menon and Bhoothalingom Iyer, JJ. held that R. 204 of the Civil Courts Guide only prescribed a condition precedent for further action being taken by the court on the execution petition and that non compliance with the rule would not make the execution petition one not in accordance with law. Referring to a similar provision in the Madras Civil Rules of Practice. Subramonia Iyer, Officiating Chief Justice and Sankaran Nair, J. observed in (28 Madras 557):-
The defect relied on has reference to an extraneous circumstance, the failure to produce a copy of the decree sought to be executed. We do not think that this ought to be held to detract from the application being in accordance with law within the meaning of the provision in question though it might furnish a ground for the court not proceeding further with the application until the defect is removed by the production of the copy so as to enable the court to satisfy itself as to the terms of the decree to be executed.
The Bombay Civil Rules of Practice also contained a similar provision. The effect of that provision was considered by the Bombay High Court in Ramachandra v. Lekshman (31 Bom.162) Batty, J. observed:-
We think that the proper view to take of the rule that requires a Dharkhast to be accompanied by a copy of the decree is not that it prescribes the essentials which an application for execution must contain and which are necessary to constitute the application itself an application in accordance with law, but that it requires something further besides the application itself, an accompaniment extraneous to the application as a condition precedent to further action by the court executing the decree.;
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