KRISHNAN NAIR PADMANABHAN Vs. RAMAN NILAKANTA KURUP

JUDGEMENT

(1.) The question for decision in this second appeal by Additional decree holders 3 and 4 is, whether the execution petition dated June 27, 1956, is within time or not. The first petition for execution of the decree was made on the 4th January, 1943, and was dismissed on the 6th September, 1944. The next petition for execution was made on the 15th November 1949. On objection being taken by the 19th defendant, by an order dated the 25th September, 1950, the execution Court called upon the decree holder to amend the execution petition by computing the amount to be realised at the computation rate for paddy as found. The execution petition was posted for amendment on the 14th October, 1950, and was ultimately dismissed for non compliance, on the 30th October 1950. The decree holder preferred an appeal against the order of the 25th September, 1950, within time, though after the dismissal of the execution petition. This appeal was dismissed. On Second Appeal, however, the Travancore - Cochin High Court set aside the order of the execution court, so far as it related to the computation rate and directed that the rate in accordance with the decision of 3 FULL Bench of the Court may be adopted.

(2.) The learned counsel for the respondent relied on the rule in the Full Bench decision of the Travancore - Cochin High Court in P. Krishna Panicker v. C. Kunchu, 1953 Ker. KLT 670: (AIR 1954 Trav-Co. 1 (FB)) but that, I think, is a case where the question decided was, whether the dismissal of the execution petition was judicial or not. There is no doubt, and it was not contended otherwise, that the dismissal of the petition on the 30th October, 1950 was judicial. Even so, judicial orders are affected by the principle, recognised and applied in the two cases. I therefore hold, that the execution petition dated the 15th November, 1949, must be deemed to be still pending,

(3.) But the decree holder cannot proceed with execution on the basis of the present execution petition, because there is a prayer in it for the attachment of properties which does not find a place in the earlier execution petition. For this reason, the order of the District Judge dismissing the present execution has to be affirmed. Subject to the observation made above the second appeal is dismissed, but I do not order costs.