KARTHIYANI AMMA Vs. NEELAKANTAN

JUDGEMENT

(1.) THE only question in this appeal by the second plaintiff decree-holder in O. S. No. 811 of 1110 on the file of the court below is whether execution of the decree is barred by limitation.

(2.) THE decree was dated 27. 4. 1114 and was passed on foot of a deed of hypothecation given by the first defendant. It directed recovery of money by sale of the hypotheca which were scheduled to the plaint as also from the assets of the first defendant who died pending suit. THE decree was registered and the period of limitation for execution was under Art. 166 of the travancore Limitation Act six years. THE first application for execution was e. P. 682 of 1117 dated 7. 6. 1117. Simultaneous execution against the hypotheca as also against the other assets of the deceased first -defendant being available the decree-holder sought the latter by applying for the attachment of a decree in O. S. 261 of 1094 obtained by the deceased first defendant. His legal representatives who were executing that decree and who were respondents in the application for execution appeared and prayed that the proposed attachment of the decree may not be levied because they apprehended that should that decree be attached the sale of properties in execution thereof which was due to be held within a few days would be stayed and proceedings would have to be started afresh to bring the properties to sale. To secure the interests of the decree-holder they undertook not to alienate the decree or their interests therein and should they happen themselves to purchase the property at the auction not to alienate those properties. That is to say, their undertaking secured to the decree-holder the decree sought to be attached as well as its proceeds should it be realised, whatever be the mode of realisation. This undertaking was accepted and the application for attachment of the decree not pressed. THE next application for execution was on 8. 7. 1117 numbered as E. P. 853 of 1117. By that time the court sale in O. S. 261 of 1094 had been conducted whereat the decree-holders therein were themselves the purchasers. THE property purchased thus constituted an asset available to be proceeded against in execution in this case. Its proclamation and sale were the prayers in the E. P. THE court ordered production of the draft proclamation of sale. THE pendency of an application to set aside the sale in O. S. 261 rendered it unsafe to proclaim and sell the properties because should the sale in O. S. 261 be set aside ultimately the sale here would be infructuous. After taking a few adjournments to produce the proclamation the decree-holder on 12. 12. 1117 presented C. M. P. 20168/17 stating the aforesaid facts in regard to the properties sought to be proclaimed and praying that the execution petition may either be stayed until after the final order in the petition to set aside the sale in O. S. 261 of 1094 or the execution petition may be struck off keeping the attachment levied on these properties alive. On 13. 12. 1117 the court passed the order "recorded" on C. M. P. 20168/1117 and the following consequential order on E. P. 823 of 1117: "struck off. Costs allowed. Attachment will subsist". THE original execution petition which is on the record contains the words of the above order with date 13. 12. 1117 underneath and the (Sd.)within brackets also beneath them. THE writing does not purport to be a copy of an original nor is it authenticated by anybody. THE Travancore Civil Courts guide which came into force on 1. 1. 1120 provides in R. 517 as follows: "all orders passed by Presiding Officers from time to time in respect of petitions for execution (Execution Forms) should be made by them on the petitions themselves. Lengthy orders may if necessary be recorded by them separately on loose sheets of paper to be incorporated with the records of the case. THE substance of all orders should be noted in the register of Execution Petitions and the same attested by the Head Ministerial officer; such orders as are made on the petitions shall be copied in the register by the Chief Execution Clerk, and attested by the Head Ministerial officer. THE results obtained by the execution of the successive orders should be noted in detail in chronological order immediately below the orders passed on the petitions and in the register from time to time". THE provisions in the earlier Civil Courts Guide which came into force on 1. 4. 1099 are different. R. 676 therein provides: "all orders passed by presiding officers from time to time in respect of petitions for execution (execution forms) excepting lengthy orders which the register will not hold, will be made by them in the register itself. Lengthy orders may be recorded by them on the back of the petitions themselves or on loose sheets of paper to be incorporated with the records of the case. THE substance of such lengthy orders should, however, be entered in this register by the clerk concerned and attested by the Head Ministerial officer. Such orders as are made in the register shall be copied on the back of the petitions by the execution clerk and attested by the Head Ministerial officer. THE results obtained by the execution of the successive orders should noted in detail in the register in chronological order immediately below the orders passed from time to time". THE applicatory provisions at the relevant time, i. e. , 13. 12. 1117, being the said R. 676 the record of the copy of the order on the execution petition should have been attested by the Head Ministerial Officer. In the absence of that attestation on the record it became necessary to ascertain whether such an order was passed at all. THE register in which the original order should have been made was, therefore, called for from the Quilon munsiff's Court and it contained the aforesaid order made in the hand of the munsiff. What is material is the passing of the order and the defect in the copy thereof made on the execution petition except occasioning some delay in the disposal of this appeal as a reference to register became necessary has no further consequence. THE third execution petition was E. P. 129 of 1124 dated 4. 3. 1124. It stated that the execution was stayed by the court by order dated 13. 12. 1117 and that the same may be proceeded with because the final order on proceedings to set aside the sale in O. S. 261 of 1094 had been made by confirming the sale. Notice to the third defendant was returned stating that he was dead. His legal representatives were directed to be impleaded and that not having been done the execution petition was struck off on 13. 7. 1124. THE last execution petition the order on which has led to this appeal was dated 9. 4. 1125 numbered E. P. 293 of 1125. It contains the same prayers as in the next earlier one. THE court below held that the order dated 13. 12. 1117 is a final order and the execution petition next presented which was on 4. 3. 1124 being beyond six years therefrom was barred by limitation. If that was barred, the defect attaches equally, if not more, to the next.

(3.) IN the result, the appeal is allowed and the case remitted to the court below for proceeding with the execution. The respondents will pay the costs of the appellant. Allowed.