KESAVA SARMA Vs. SAINUBA KUNJU

JUDGEMENT

(1.) The only question for decision in this second appeal is whether execution is barred by limitation or not. The first court found that execution was not barred by limitation, but the lower appellate court held that it was barred. Hence this Second Appeal by the decree holder.

(2.) The prior execution application made on 15.11.1113 was dismissed by the execution court on 19.2.1114 for the reason that the decree holder had not applied to implead the heirs of the deceased defendants 1 and 2 and to appoint a guardian for the minor heir of the deceased 2nd defendant. After that there was no application for execution till 20.4.1123, when the present petition for execution was filed. It was contended by the decree holder that the order of 19.2.1114 was not a judicial order. This contention found favour with the first court but was repelled by the lower appellate court. The ground on which the first court accepted this contention was that the case was not posted to 19.2.1114 and that therefore, the order passed on that date must be deemed to be one made without notice and should not be taken as a judicial disposal of the execution application. It is, however, seen from the progress diary that the case was posted to 15.2.1114 for the purpose of filing the application for impleading and the application for appointing a guardian. As the order dismissing the execution application was made within a few days after 15.2.1114, it cannot be contended that that the order of 19.2.1114 must be deemed to be one made without notice of the posting to the parties. In Thanupermal Pillai v. Thanumalayan (1948 TLR 237) a Full Bench of the erstwhile Travancore High Court held that, if the execution petition is properly posted to a specified date for any particular act to be done, without which the execution cannot proceed, and the act is defaulted, the execution petition may be disposed of even on a later date, though not specified, if such disposal appears to be reasonably prompt in the circumstances of the case and not a surprise owing to the delay. In the present case, the deceased 2nd defendant had only one legal representative and he was a minor at the time of the execution application of 15.11.1113. It was not, therefore, possible to proceed with that execution application without having a guardian appointed for that minor, and the court had adjourned the case to 15.2.1114 for the plaintiff to file an application for appointment of a guardian. Since the plaintiff defaulted to apply for appointment of a guardian on 15.2.1114, the order dismissing the execution application on 19.2.1114 can be viewed only as a judicial disposal of the execution application of 15.11.1113.

(3.) In the circumstances, the order of the lower appellate court is right and this second appeal is dismissed. Parties will bear their costs in this courts.