A B C PUBLICATION Vs. POORNAMALA PROCESS

JUDGEMENT

(1.) The revision petitioner, who is the judgment debtor in O. S. No. 183/89 of the Sub Court, Sripilli Puthur Tamil Nadu, which is pending in execution in the Sub Court Trivandrum as E.P. No. 387/93, is aggrieved by the order passed by the said execution court restoring the E.P. which had been dismissed for default.

(2.) According to the learned counsel for the revision petitioner, the E.P. had been dismissed on 30.9.96 and only on 13.2.1997 the request for restoration was made and the time had run out in the meantime. The contention of the respondent is that the dismissal was only ministerial in nature and that the Court was bound to restore it as and when the bar which lead to the dismissal was found to be nonexistent. It is also pointed out that the dismissal itself was in violation of the provisions in R.35 of the Civil Rules of Practice. Learned counsel also placed reliance on relevant case law on the point.

(3.) The reason for dismissal of the E.P. on 30.9.1996 was an injunction obtained by the judgment debtor's brother against the continuance of the execution. Even if there was a bar for the continuance of the execution proceedings brought in through the injunction, the execution court, by virtue of the provisions in R.35 of the Civil Rules of Practice, was bound to adjourn the case to a suitable date awaiting further orders and should not have proceeded to strike it off. R.35 of the Civil Rules of Practice is clear in the matter. It reads as follows: