MUHAMMED KUNJU MEERA SAHIB Vs. LANCILAD P GOMEZ

JUDGEMENT

(1.) Judgment debtor No. 3 in O. S. 444 of 1953 on the file of the Munsiff's Court of Attingal filed this revision challenging the order of the executing court rejecting his contention that the execution proceeding initiated by the decree holder was not barred by limitation. Pending the revision, judgment debtor No. 3 died and his legal representatives have been impleaded as additional petitioners 2 to 10.

(2.) The decree holder filed O. S. 444 of 1953 in the Munsiff's Court for redemption of a mortgage. That suit was decreed on 31.5.1958. The decree holder filed E.P. 461 of 1958 for execution of the decree of the Trial Court. Some of the defendants filed an appeal, A. S. 205 of 1958 before the lower appellate court challenging the decree in O.S.444 of 1953. In that appeal they sought for and obtained an interim order of stay of execution of the decree of the Trial Court pending disposal of the appeal. In the light of the order of stay granted by the appellate court, the executing court dismissed E.P. 461 of 1958 on 27.10.1958 without going into the merits of the claim for execution. It is not disputed by Senior Counsel appearing for the revision petitioners that this dismissal of E.P. 461 of 1958 by the executing Court could be treated only as a ministerial or statistical disposal.

(3.) The appeal A. S. 205 of 1958 was subsequently dismissed by the appellate Court by judgment and decree dated 9.7.1959. The dismissal of the appeal and consequently the decree for redemption passed in the suit became final. The decree holder filed E.P. 53 of 1978 only on 22.3.1978 praying that E.P. 461 of 1958 dismissed earlier in view of the order of stay granted by the lower appellate Court may be revived and the execution proceeded with. The predecessor of the revision petitioners raised objections. One of the main contentions he raised was that the decree in O. S. 444 of 1953 passed on 31.5.1958 by the Trial Court having been confirmed by the decree of the lower appellate court on 9.7.1959 in A. S. 205 of 1958, the decree of the Trial Court had merged in the appellate decree and in that situation the only decree capable of being executed was of the appellate decree. The Trial Court decree could not be executed after it has merged with the decree of the appellate court. The execution petition having been filed more than 12 years after the decree in A. S. 205 of 1958, the execution was clearly barred by limitation. It was contended that since the decree passed by the Trial Court could not any more be executed in view of the merger of that decree with that of the appellate court, no question of reviving E.P. 461 of 1958 arose. That execution petition could not be proceeded with in the circumstances. The executing Court held that the earlier execution petition, E.P. 461 of 1958, could not be revived in the circumstances and could be proceeded with and hence the objection that the execution was barred by limitation could not be sustained. The Court referred to a decision of the Supreme Court and a decision of this Court in support of the position adopted by it. It is this decision of the executing Court that is challenged in this revision on the ground that it is vitiated by material irregularity and even otherwise illegal and unsustainable.