VAREED JACOB Vs. SOSAMMA

JUDGEMENT

(1.) This Civil Revision Petition is filed against the order in E.P. No. 37 of 1981 in O. S. No. 332 of 1122(ME) on the file of the Munsiff's Court, Kottarakkara. The suit was for partition. The decree holder obtained a decree to get delivery of items 10 to 16 from the judgment debtors. As per the final decree dated 21.5.1964, the sixth defendant was allowed to take A schedule property item No. 8 having an extent of 29 cents and also item No. 16 having an extent of 1 acre and 75 cents. After the decree, the sixth defendant died and the legal representatives were impleaded. They applied for getting delivery of the property. Then what happened was that the third defendant filed O. S. No. 209/69 against the original 6th defendant and others for setting aside the decree in O. S. 332/1122(ME) and O. S. No. 90 of 1952 and obtained an order of injunction restraining the sixth defendant and others from executing the decree in the present case. After the disposal of O. S. No. 209/69, the plaintiff in that case preferred an appeal as A. S. 137 of 1975. The Sub Court dismissed the appeal against which he preferred S. A. No. 532 of 1978 before this High Court and the same was dismissed on 11.7.1979. After this the execution petition was filed in 1981. The judgment debtors contended that the Execution Petition is barred by limitation since the final decree was passed on 21.5.1964. According to the judgment debtors the execution petition ought to have been filed on 21.5.1976. It was found by the Court below that in O. S No. 209/69 there was an order of injunction restraining the 6th defendant and others from executing the decree. This injunction was in force from 1969 to 1975. The court below took the view that if this period is excluded, the execution petition will be in time. But the judgment debtors contended that O. S. No. 209/69 was dismissed for default on 2.4.1973 and the case was restored to file only on 20.12.1974. Counsel for the defendants submitted that there was no fresh petition for injunction after the restoration. According to the counsel, since the suit was dismissed for default, when the suit was restored to file, there was no automatic restoration of the injunction order. But the court below rejected this contention and held that exclusion petition is not barred by limitation. Before me, the learned counsel for the petitioner contended that even though the order of injunction was obtained in the suit, the suit has been dismissed for default. After the suit was restored, no fresh application for injunction was filed and there was no injunction restraining the execution of the decree. He contended that there was no automatic revival of the order of the injunction. Learned counsel brought to my notice certain decisions. But, according to me, there is a decision of this Court in Ulahannan Chacko v. Mathai 1986 KLT 301 . In that case, Fathima Beevi,J. (as Her Lordship then was) relied on the decision of the Madras High Court in Saranatha Ayyangar v. Muthiah Mooppanar AIR 1934 Mad. 49 , wherein it was held as follows:

(2.) Following the above decisions, I am of the view that when the suit was restored, the order of injunction was also restored. Hence, I agree with the court below that since there was an order of injunction, the execution petition was filed within time.