DAMODARAN Vs. CHANDU

JUDGEMENT

(1.) The decree under execution was made on 21-4-1951 and the first application for execution, E. P. 505 of 1951, made soon thereafter, was stayed on 8-2-1952. It would appear and neither side is able to assert the contrary that this E. P. was never disposed of, whether ministerially or judicially, and that it is still pending. That being so, the successive applications for execution since made, including the latest, E. P. 396 of 1961, out of the order for execution in which this second appeal arises, are only applications to vacate the stay and proceed with the execution prayed for in the first application, E. P. 505 of 1951, which is still pending. No question of limitation can therefore conceivably arise.

(2.) This apart - and I am saying this against the possibility of some order of disposal having been made in E. P. 505 of 1951 of which neither party is aware - that application is not in the records of this case and is not before me - the application for execution immediately preceding the present application, namely E. P. 675 of 1955, was disposed of on 21-2-1956 with the order, stayed by the High Court and hence dismissed, execution having been stayed by the High Court in C. R. P. 175 of 1956. That stay terminated on the dismissal of the C. R. P. on 20-2-1958, and the appellant judgment debtors case is that the present application, E. P. 396 of 1961, which according to him, is, on the findings of the courts below, an application for the revival of E. P. 675 of 1955, is barred under Art.181 of the Limitation Act. This contention seems to me entirely unsustainable. There can be no doubt - and that is agreed on all hands - that the order dated 2-12-1956 purporting to dismiss E. P. 675 of 1955 was not a judicial order but only a ministerial order. That being so, it follows that that E.P. was never judicially disposed of and was still pending for all judicial purposes when the present application for execution was made. There is no question of reviving something that is still pending, and, to call the present application an application for the revival of E. P. 675 of 1955 is a misnomer. Such an application has been appropriately described as a reminder to the Court, and whether it is oral or written, is not an application to what I might call its judicial side but only to its ministerial side requesting it to post and dispose of an application which, though ministerially disposed of it still judicially pending. With great respect I am in full agreement with the decisions in Chalavadi Kotiar v. Poloori Alimelammah (ILR 31 Madras 71), Subba Chariar v. Muthuveeran Pillai (ILR 36 Madras 553) and Pattannayya v. Pattayya (50 MLJ 215) that there can be no question of applying any article of limitation to such an application and am unable to accept the view taken in Chhattar Singh v. Kamal Singh (AIR 1927 Allahabad 16). In fact, I should think that the matter is concluded by the recent decision of the Supreme Court in Venkanna v. Bangararaju AIR 1964 SC 1454 where it has been pointed out that when an execution application has only been closed for statistical purposes - and in the present case that was what happened to E. P. 675 of 1955 though the word, dismissed was used - the application is really pending and there can be no question of limitation.

(3.) I dismiss the appeal with costs.