KOCHUNNI Vs. KRISHNAN KESAVA PANICKER

JUDGEMENT

(1.) The decree holder had filed this appeal against the order of the lower court dismissing his petition to take out execution on the lines prayed for in the execution petition of 3.8.1117. The decree in the case was passed on 24.11.1100 and so a subsequent application filed after the expiry of 12 years from the date of the decree would be prima facie barred under S.41 C.P.C. But in the application it was specifically stated by the decree holder that the claimed exemption from operation of the said Section by virtue of sub-s. 2 of that section which provided that the 12 years' rule shall not apply where the judgment debtor had by fraud or force prevented the execution of the decree at sometime within 12 years immediately before the date of the application. The execution court at first without considering the question raised by the appellant, had rejected the application on the ground that it was precluded from considering the question on account of a prior order of the High Court said to have been passed on a similar application presented on an earlier date. The decree holder appealed against this order in A.S.708 of 1117. The judgment in that appeal will have to be considered in detail at a later stage. It is sufficient now to mention that this Court set aside the order of the Munsiff and remanded the case to the execution court for a consideration of the allegation of fraud made by the decree holder and the plea of constructive res judicata advanced by the judgment debtor. After remand the Court below held that the prayers in the execution petition of 3.8.1117 were bared by constructive res judicata because of a prior decision of the High Court reported in Karunakara Panicker v. Kochunny (57 T.L.R. 877-F.B.). As regards fraud pleaded by the decree holder the lower Court had found that sub clause 2 of S.41 was applicable as the judgment debtor had in 1106 escaped from lawful custody after he had been arrested on 11.7.1106. The petition was however dismissed because of the finding relating to res judicata. The judgment debtor had filed an objection to the finding relating to fraud.

(2.) There was an execution petition of 1111 filed within 12 years and in execution certain properties of the judgment debtor were attached. A claim had been preferred against the attachment and that was allowed as regards most of the properties attached. After this, the decree holder on 2.6.1113 filed an execution application asking for attachment of more properties. This petition bears the date 27.5.1113; but it was put into court only on 2.6.1113. This was however dismissed on 12.6.1113 for non prosecution. On 20.7.1113 the decree holder put in a petition praying for attachment being issued forthwith of the properties mentioned in the schedule filed along with the execution petition of 2.6.1113. At that time the execution petition of 1111 was pending and so the learned Munsiff held that this petition of Kumbhom 1113 could be considered to be one to amend the earlier execution petition filed within time and that therefore attachment could be issued. Against this the judgment debtor field an appeal before this Court and the judgment in that case was Karunakara Panicker v. Kochunny (57 T.L.R. 877-F.B.). This Court then held that pursuant to the application of 20.7.1113, the execution petition of 1111 could not be amended as amendments were made only to cure the defects in the execution petitions filed. It was pointed out that the execution petition of 1111 was in order without any defects so that there was no occasion to amend that application. The order of the Munsiff was therefore set aside and the petition of 1113 dismissed. The force of this judgment in relation to the execution petition of 3.8.1117 filed by the decree holder had been considered in A.S. 708 of 1117. In paragraph 2 of the judgment it was mentioned thus:

(3.) The decision in A.S. 708 of 1117 according to Their Lordships who decided the case was that if the 12 years' rule were applicable the application of 1114 was out of time. The Judge who wrote the leading judgment in 57 T.L.R. 877 was a party to the judgment in A.S. 708 of 1117. It was further mentioned there that the question whether the decree holder was entitled to the extended period of limitation provided by sub-s. 2 of S.41 C.P.C. was not considered by this Court for the reason clearly stated in that judgment and that accordingly the said decision was confined to the ground specifically raised and dealt with in the court below. Then it was pointed out that the question raised in the execution petition of 1117 was an identical one which this Court refused to consider in the case above referred to as it was not properly before it. Their Lordships then mentioned that they were not referred to any rule of law which precluded them from considering the question raised in this case when it was properly agitated. So it was their view that the decision in 57 T.L.R. 877 could not be a bar to the execution court considering the question whether the judgment debtor had by fraud or force prevented the execution of the decree within 12 years of the execution application of 1117.