KOCHAVU KUNJUNNY Vs. PARUR BANK LTD

JUDGEMENT

(1.) This Second Appeal arises in execution and judgment-debtors 2 and 3 are the appellants before us. A decree for money was passed on 20.12.1107. On 19.10.1112 the decree-holder applied for execution on which the Court on 20.10.1112 directed him to produce a statement of accounts and also to deposit process fee and for this purpose posted the case to 29.10.1112. The decree-holder did not do either of the things that he was directed to do with the result that on 30.10.1112, ie. the day next after that to which the case stood posted, the Court dismissed the execution petition directing the decree-holder to bear his own costs. The next application for execution was filed on 3.4.1124, that is more than 11 years after the previous petition and orders thereon. The only question that arises is one of limitation. The learned Munsiff found that the execution petition was barred by limitation because the order passed on 30.10.1112 is a judicial order dismissing the execution petition on account of the default of the decree-holder. The lower appellate court took a different view and held that the execution is not barred by limitation. The lower appellate court thought that the order dated 30.12.1112 is a ministerial order because it was passed on a day to which the case did not stand posted. R. 675 of the Travancore Civil Courts Guide which was in force at the time provides that orders upon execution petitions should be passed not later than the day next after that on which the petition is filed in Court. The decree-holder must be taken to have been aware of the rule and that according to it orders upon his execution petition will be passed either on the day on which the execution petition was filed i.e. on 19.10.1112 or on the next day, ie., 20.10.1112. It was on the latter date that the Court directed the decree-holder to take the steps mentioned above and posted the case to 29.10.1112 for that purpose. The decree-holder not having taken the steps as directed the petition was dismissed on the next day. The decreeholder must be taken to have been aware of the posting to 29.10.1112 and of the directions given to him to take steps. If so, he was a defaulter in not having taken the steps and the order passed on 30.10.1112 for his default is again a judicial order. The lower appellate court refers to this provision of the Civil Courts Guide but states that it is only a direction to the office and that it is to be relevant in considering whether the decreeholder had notice of the orders passed upon his petition. A Division Bench of this Court (AIR 1951 Travancore-Cochin 179) took the view that if an order is passed upon the execution petition on the next day after the day on which the petition is filed according to R. 675 of the Travancore Civil Courts Guide it will be a judicial order of which the decree holder must be deemed to be aware of and that the consequences of default in not complying therewith will ensure. The learned counsel for the respondent relies upon another Division Bench decision of this Court reported in 1950 KLT 5 . What happened in that case was that in execution of a decree, an order was passed for delivery of four items of properties. Pursuant to that order two items were delivered and the amin entrusted with the warrant for delivery submitted a report several months after the order stating that the remaining two items could not be delivered on account of certain obstructions. Two days after that report was submitted the Court directed the decree holder to take further steps in the matter of removal of the obstruction for delivery of the remaining items and posted the case for that purpose to a particular date. The decree-holder not having taken the steps as directed the petition was dismissed the next day. The question was whether the order passed by the Court directing the decree holder to take steps for removal of the obstruction was an order which was judicially passed. The learned Judges found that that was not a judicial order. The facts stated in the judgment do not show that either on the day on which the order for taking steps was passed or on any day near thereto there was a posting of the case. It was true that the order was passed within two days after the amin submitted his report. But that is an accident or event about which the decree-holder may not have known. The learned Judges came to the conclusion that the decree holder was not aware of the posting and that he was not in default in not having complied with the direction contained in such an order. That case is, therefore, distinguishable from the present, and is no authority for the position contended for by the learned counsel for the respondent.

(2.) No decree holder filing an application for execution can expect the Court to have orders passed thereon forthwith or on the very day on which the application is filed unless he makes a special motion is that behalf. Ordinarily the papers presented to the office of the Court will be taken to the Presiding Officer for orders the next day and it cannot be said that the applicant is unaware of the orders passed on the next day. Whatever orders are passed are noted in the execution diary by the office which is accessible to the advocates and their clerks. It is clear therefore, that the orders passed by the Court on 20.10.1112 directing the decree holder to take steps and on 30.10.1112 for default in not taking those steps are judicial and proper, and that the present execution petition filed more than 11 years after the last order on 30.10.1112 is barred by limitation. In the result the second appeal is allowed, the decision of the lower appellate Court reversed and that of the Munsiff restored with costs throughout.