Decided on September 14,1963



- (1.) On the point if E. P. No. 159 of 1952 in O.S.No. 56 of 1941 (District Munsif's Court, Narasaraopet) is in time, the lower Courts differed. The learned District Munsif, Narasaraopet, held the view that the order dated 6th October, 1945 on E.P. No.427 of 1945 which is "E.P. Dismissed as stayed" is a final order and the present execution petition is not within three years of that final order. The lower appellate Court interpreted the order of dismissal having regard to the context in which such order was passed and relying upon the Full Bench decision in Sundaramma v. Abdul Khader I.L.R. 56 Mad. 490 : 64 M.L.J. 664, which laid down the test as to when orders of dismissal could be final, held that E. P. No. 159 of 1952 is only a continuation of E. P. No. 427 of 1945.
(2.) In this Court, the learned counsel for the appellant strongly relied upon the decision of a Division Bench reported in Rangaiah v. Maisamma (1958) 1 An.W.R.531, and argued that, since the excuting Court while passing orders on 6th October 1945 in E. P. No. 427 of 1945 could not be said to have acted without jurisdiction and that the order of dismissal even if it is illegal or in excess of jurisdiction will have to be set right in appropriate proceedings and that as long as that order stands, the limitation would begin from the date of such dismissal. There is a track of decisions which have been responsible for the view expressed by the Full Bench referred to, namely, that an order of dismissal would terminate the execution proceedings only if that order was necessitated by the default or obstruction caused by the decree-holder and otherwise it would not be a case of a final order. I have recently held in C. M. S. A. No. 32 of 1960 that when the execution petition is said to be ' closed ', the dictum of the Division Bench will not apply. But in the present case, the order is one of dismissal, though it is only on account of stay of execution proceedings. The following question, therefore, arises : "Whether it is any longer not possible lo construe an order of dismissal as final or not, according to circumstances in which that order was passed ?" And since the decision of the Civil Miscellaneous Second Appeal would depend on ananswer to it, I think it necessary that this matter should be dealt with by a Division Bench.
(3.) The appeal was then heard by the Division Bench. The Order of the Court' was made by Jaganmohan Reddy, J.-This is an appeal against the appellate judgment in an execution appeal, construing the order passed by the executing Court as one- which is not a final order of dismissal. When the matter came up for hearing before Munikanniah, J., he thought that, having regard to the Division Bench decision in Rangiah v. Maisamma (1958) 1 An.W.R. 531, the appeal is one fit for considration by a Bench.;

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