SOMASEKHARAN Vs. SARASWATHI AMMA

JUDGEMENT

(1.) The revision petitioner and the respondents are the legal heirs of the original decree holder as well as the judgment debtors respectively. The revision petitioner filed E.P. No. 599/05 in O.S. No. 768/73, seeking delivery of the property in execution of the decree passed in favour of his deceased father in the above Original Suit. The suit was one for declaration of title and possession and also for a mandatory injunction directing the judgment debtors to remove a shed. The suit was disposed of on 7-6-1974 and the E.P. was filed on 26-11-2005, after a long lapse of 30 years. The respondents filed an objection contending that the present petition for execution of the decree is barred by limitation. After considering the rival contentions, the court below dismissed the Execution Petition on a finding that the execution of the decree is barred by limitation. The legality and propriety of the findings, by which the Execution Petition had been dismissed, are under challenge in this Revision Petition.

(2.) The learned counsel for the revision petitioner submits that, though, the Execution Petition was filed on 26-11-2005, after a long lapse of 30 years, it was not barred by limitation as the execution was stayed by the stay order passed in different suits for different periods. The learned counsel further submits that the decree was passed on 26-11-2005. But the execution was stayed by the stay order of the appellate court in A.S. No. 219/74 and the appeal was dismissed on 15-3-1976 only. Therefore, that period is liable to be excluded in computing the period of limitation. Immediately after the dismissal of the above appeal, E.P. No. 909/76 was filed on 8-11-1976. But, that E.P. was dismissed on 22-3-1985 on default. Even during the pendency of that E.P., the delivery of the property was stayed in O.S. No. 217/81 from 2-4-1981 and that continued up to 31-10-1987, the day on which that suit was dismissed. Again, the stay against delivery was ordered in A.S. No. 46/88 on 6-9-1988 vide Ext.A9 and the same continued up to 1-12-1995. Therefore, the period of limitation again starts from 01/12/1995. If that be so, the present petition, which was filed on 26/11/2005 is within the period of limitation.

(3.) Per contra, the learned counsel for the respondents contends that, though, there was a stay from execution of the decree in A.S. No. 219 of 1974, the said appeal was dismissed on 15/03/1976 and thereafter the first E.P. was filed on 08/11/1976. But, that E.P. was dismissed on default on 22/03/1985. The stay orders in O.S. No. 217/1981 and subsequently, in A.S. No. 46/88 were only against delivery of the property. There was no stay against execution proceedings in the said original suit as well as in the appeal. Therefore, the stay order in O.S. No. 217 of 1981 and A.S. No. 46 of 1988 are of no consequence at all when computing the period of limitation. It is also contended that the first E.P. No. 909 of 1976 was dismissed on 22/03/1985 on default. That dismissal cannot be treated as dismissal for statistical or ministerial purpose. Thus, the present E.P. is barred by the dismissal of the first E.P. on 22/03/1985.