DEVASIA Vs. KURUVILLA

JUDGEMENT

(1.) The question that had to be considered by the courts below was whether an execution petition was within time or whether it was barred by limitation. The first court arrived at the conclusion that it was barred by limitation, because it was presented more than three years after the disposal of the previous execution petition. On appeal, the lower appellate court remanded the matter for fresh disposal, because it was not satisfied that the earlier execution petition was judicially disposed of to attract the three years' rule of limitation. When the case came back to the court of the District Munsiff, he adhered to his former view and held that the execution petition in question was not in time. From that decision an appeal was preferred to the lower appellate court and the learned District Judge has now held, differing from the view taken by the District Munsiff, that the execution petition was in time. The judgment debtor has preferred this second appeal from the decision of the District Judge.

(2.) Learned Counsel for the appellant urges two contentions. The first is that the order, which is the subject matter of this second appeal, is in conflict with the earlier order passed by the District Judge, which merely stated that the District Munsiff should look into the question as to whether the posting of the execution petition for disposal was entered in the posting book. In fact that was the only question the District Munsiff considered when the matter was remanded to his Court. But we find, on a perusal of the remand order, that that was not the sole point directed to be investigated. The following part of the order of remand makes the position clear. "Instances of omission of cases in the posting book are not a rarity. Under the circumstances, it has to be considered by the lower court whether due notice of posting in the usual manner was given of the posting for 16.1.1115 and the decree holder had reasonable facilities for knowing the same. The lower court will consider this aspect of the matter and enter definite findings thereon." It is clear from this part of the order that it was not a mere mechanical answer that was asked for. The question to be considered was whether due notice of posting of the execution petition in the usual manner was given to the decree holder. The complaint at that stage was that the Trial Court had posted the execution petition for payment of batta to 16.1.1115 and this was done on 7.1.1115 a date to which the case was not posted. The decree holder had no notice of this posting and that was why he did not comply with the directions given in that order and the execution petition happened to be dismissed for non payment of batta. We are not prepared to accept the contention of the learned counsel for the appellant that the lower appellate court was bound by the finding of the District Munsiff and could not take a different view.

(3.) The next argument refers to the question of limitation. The execution petition, which is the subject matter of this appeal, was presented on 3.4.1118. The previous execution petition was filed on 18.12.1113. After a number of applications that happened to be presented to the court, it was ultimately adjourned for further steps to 16.1.1115. This order posting the execution petition for further steps was made on 7.1.1115 which was not a date to which it was adjourned at the previous hearing. The previous hearing was on 3.1.1115. Therefore when the order adjourning the execution petition to 16.1.1115 was passed on 7.1.1115, none of the parties were present in court. The decree holder did not know anything about the said posting, and consequently when it was taken up on 16.1.1115, it was discovered that nothing was done by the decree holder in prosecution of that application and therefore the execution petition was dismissed on that date. The question for consideration before the courts below was whether the subsequent petition presented on 3.4.1118 was in time. It was certainly presented more than three years from 16.1.1115 when the previous execution petition was rejected. Therefore the relevant point was whether the disposal of the previous petition on 16.1.1115 was a judicial disposal. It has been held by the lower appellate court that it was not a judicial disposal. The decree holder had no notice of the posting to that date and it was dismissed because it was alleged that he did not take formal steps which he was directed to take by that date. The view taken by the learned District Judge is that the disposal on 16.1.1115 was not a judicial disposal, but only a ministerial order that was passed in execution. In the circumstances, the learned District Judge took the view that the execution petition presented on 3.4.1118 was only a revival of the earlier one. This decision is attacked in second appeal by the learned Advocate for the appellant. He contends that the prayer in the earlier execution petition was for attachment of money belonging to the judgment debtor, but that prayer in the later execution petition, presented on 3.4.1118 was different. Therefore he contends that it cannot be regarded as a revival of the previous execution petition. In view of the Full decisions reported in Thanuperumal Pillai v. Thanumalayan (1948 Travancore Law Reports 237) and Devasia v. The Travancore Commercial Bank Limited (30 TLJ 297), we take the view that the decision of the lower appellate court should be upheld. According to a series of decisions of the Travancore High Court relied on by the learned counsel for the respondent, the second application can only be regarded as a reminder to the court of the pendency of the previous application which has not been judicially or finally disposed of. The period of limitation can run only from the date of the judicial disposal of an execution petition. If there are new prayers incorporated in the later petition, they may be regarded as prayers which the decree holder wanted to be incorporated by way of amendment in the earlier petition that was not judicially disposed of.