KRISHNAN Vs. SUBRAMONIA IYER

JUDGEMENT

(1.) This is an appeal filed by the judgment debtor against the lower court's order overruling the objection that execution is barred by the 12 year's rule under S.48 C.P.C. The decree is a registered decree and it is dated 4.12.1103. The present execution petition is dated 23.6.1122. The prior execution petition filed on 22.11.1115 was dismissed on 27.6.1119. In view of these facts the judgment debtor's objection that the present execution petition dated 23.6.1122 is out of time, is prima facie tenable and had to prevail. The lower court appears to have taken the view that the order dated 27.6.1119 dismissing the prior execution petition, was only a ministerial order and that the prior execution petition must be deemed to be pending. But the fact is that on 27.6.1119 to which date the execution petition was posted for the production of the amended decree, the decree holder failed to produce the same or at least to apply for time. Under such circumstances the dismissal of the execution petition on 27.6.1119 cannot be said to be a mere ministerial order. On behalf of the respondent decree holder it is contended that he was vigorously pursuing his application for amendment of the decree and that such amendment was allowed only on 21.6.1122 and as such it was impossible for him to comply with the direction of the execution court to produce the amended decree on 27.6.1119. It may be so. But all the same there was a final order against him on that date and his remedy was by way of appeal against that order. In spite of the circumstance that the final order dismissing the prior execution petition on 27.6.1119 is against the decree holder, there is yet another strong circumstance on which the decree holder is entitled to succeed. When the present execution petition was filed on 23.6.1122 notice under O.21, R.20 was ordered on it. After a few attempts, the notice was served on him on 20.7.1122. Subsequently the question of limitation was heard on 16.11.1123 and an order was passed by the execution court on that day that there is no bar of limitation for the present execution petition. That order has not been challenged by the appellant defendant. The present objection filed by him on 28.3.1952 after the case was transferred to the Mavelikara District Court, that the pending execution petition is barred by limitation, is clearly barred by the rule of res judicata in view of the prior order dated 16.11.1122 that there is no bar of limitation for the execution of the decree on the basis of the present execution petition.