VAREED JACOB Vs. SOSAMMA GEEVARGHESE

JUDGEMENT

(1.) Leave granted.

(2.) Suit No. 332/1122 (NE) was a suit for partition filed in the Munsiff Court, Kottarakara, in which final decree was passed on 21st May, 1964. Under the decree, defendant No. 6 (since deceased) was granted recovery of items 10-16. Defendant No. 6 died after the decree. The third defendant in the said Suit No. 332/1122 (NE) in turn filed Suit No. 209 of 1969 on 25th June, 1969 against defendant No. 6 (decree holder) and others for setting aside the decree dated 21st May, 1964 in Suit No. 332/1122 (NE). On 25th June, 1969, the Court passed an order of temporary injunction restraining the decree holder from executing the decree dated 21st May, 1964 in Suit No. 332/1122 (NE). On 2nd April, 1973, Suit No. 209 of 1969 filed by the third defendant was dismissed for default. Thereafter application was moved for restoration of Suit No. 209 of 1969 and that Suit was ultimately restored to file on 20th December, 1974. However, ultimately on merits, Suit No. 209 of 1969 was dismissed on 21st March, 1975. The above facts show that the decree holder was prevented from executing the decree dated 21st May, 1964 in Suit No. 332/1122 (NE), during the period 25th June, 1969 up to 21st March, 1975 when Suit No. 209 of 1969 was pending and ultimately dismissed on merits. Further, against the dismissal of the Suit No. 209 of 1969 the matter was taken in appeal before the first Appellate Court which also dismissed the appeal of the plaintiff in Suit No. 209 of 1969. Being aggrieved, the plaintiff in Suit No. 209/69 carried the matter in appeal before the High Court, which appeal was finally dismissed on 11th June, 1979. In other words, the decree in Suit No. 332/1122 (NE) could not be executed during the period 25th June, 1969 up to 11th July, 1979. On 18th March, 1981, Execution Petition was filed and the decree dated 25th June, 1964 in Suit No. 332/1122 (NE) was put in execution to which the judgment debtor (the petitioner herein) objected on the ground that the Execution Petition was barred by limitation, as it was not filed within 12 years from the date of the decree, i.e. 21st May, 1964. The Executing Court as also the High Court in revision held that the decree holder in Suit No. 332/1122 (NE) was precluded from executing the decree during the period 25th June, 1969 to 21st March, 1975, when the Suit No. 209 of 1969 filed by the judgment debtor came to be finally dismissed on merits and if that period was excluded, the Execution Petition was well within the time. Being aggrieved by the decision of the High Court dated 25th July, 2001, in Civil Revision Petition (CRP) No. 2003 of 1998 (B), the judgment debtor has come by way of special leave petition under Art. 136 of the Constitution of India.

(3.) Mr. Fazlin Anam, learned counsel appearing on behalf of the judgment debtor (petitioner) contended that the suit filed by the judgment debtor being Suit No. 209 of 1969 was dismissed for default on 2nd April, 1973. That during the pendency of Suit No. 209 of 1969, there was an order of temporary injunction dated 25th June, 1969, but with the dismissal of the Suit for default on 2nd April, 1973 the order of temporary injunction dated 25th June, 1969 came to an end and that order did not revive even after restoration of Suit No. 209 of 1969 on 20th December, 1974, and consequently nothing prevented the decree holder from executing the decree dated 21st May, 1964, after the restoration of the suit. In this connection, learned counsel placed reliance on the judgment of Allahabad High Court in the case of Raj Chander Gupta v. Ramesh Kishore reported in AIR 1965 All 546 in which it has been held that with the dismissal of the suit, either on merit or for default, the attachment before judgment comes to an end and even if the suit is restored subsequently the order of attachment before judgment will not revive automatically. In deciding the matter the Allahabad High Court placed reliance on its earlier judgment in the case of Ram Chand v. Pitam Mal reported in (1888) ILR 10 All 506.