SANKARA KURUKKAL NARAYANA KURUKKAL Vs. EDIKALI PARVATHI

JUDGEMENT

(1.) The 1st defendant is the appellant. The appeal relates to an order in execution. The question for consideration is whether the execution application dated 8.5.1124 is barred by limitation. Both the lower courts held that the execution application is not barred by limitation. The decree in this case was passed on 6.5.1104. The last execution application was filed on 8.5.1124. The decree holders case is that the execution application filed on 17.4.1109 has not been judicially disposed of and that the execution application dated 8.5.1124 is one in continuation of that application. Therefore the only question to be decided is whether the execution application dated 17.4.1109 has been judicially disposed of or not. That application was posted on 9.7.1109 for the return of notice to the defendants. Notice was returned served on 7.7.1109. On 10.7.1109 the court ordered the decree holders to produce the attachment list and adjourned the case to 17.7.1109. The list was not filed within that time and the execution application was dismissed on 18.7.1109. The posting of the case to 17.7.1109 was made on a day to which the case was not posted. It cannot therefore be held that that posting was with notice to the decree holders. There is also nothing to show that the decree holders had actual notice of that posting. It is argued for the appellant that under R. 675 of the Travancore Civil Courts Guide then in force orders on an execution application may be passed on the day following the date of its filing in court and therefore it is contended that the order dated 10.7.1109 is a proper order. R. 675 of the Civil Courts guide applies only to the 1st order passed by the court when an execution application is filed. It does not apply to subsequent orders. Reference was also made by the learned Advocate for the appellant to the decision of this court in S.A. 125 of 1125. What was held in that case is that when an execution application is filed orders thereon may be passed on the day following the date of its filing as provided in R. 675 of the Civil Courts Guide. That decision does not lay down that subsequent orders passed without notice to the parties on a day to which the case is not posted will be a proper order.

(2.) In the circumstances we agree with the lower courts in their view that the posting of the case to 17.7.1109 was made without notice to the decree holders and that therefore the dismissal of the execution application on 18.7.1109 is not a judicial disposal. The execution application must be deemed to be still pending and the application dated 8.5.1124 should be taken to be one in continuation of that application. The orders of the lower Courts are therefore confirmed and the Second Appeal is dismissed with costs.