MATHEW A.E. Vs. PUTHOOR BANKERS AND ORS.

JUDGEMENT

(1.) Indeed strange are the ways of Court in dealing with matters in execution. The petitioner, who is the decree -holder in two suits namely, OS No. 71/1999 and OS No. 30/2000 filed against the same judgment -debtors instituted two execution petitions namely, EP No. 28/2002 to execute the decree in OS No. 71/1999 and EP No. 29/2002 to execute the decree in OS No. 30/2000. The properties belonging to the judgment -debtors were brought to sale and sale was held initially in EP No. 28/2002 that being the decree in the prior suit. The upset price was fixed at Rs. 9 lakhs. That sale was in pursuance to the order dated 18/12/2009 wherein it was specifically stated that sale of the properties for realisation of the decree debt in both the execution petitions shall be held in EP No. 28/2002 and the property was sold for Rs. 9 lakhs. Since there were no stranger bidders, decree -holder purchased the property in terms of the order of the Court and sale certificate was issued. On issuance of sale certificate, both the execution petitions were proceeded with and as per the provisions of the Indian Contract Act, the decree -holder appropriated the amount first towards the first decree which was executed through EP No. 28/2002 and the balance amount was appropriated to the second decree executed through EP No. 29/2002. As regards the second decree i.e., in OS No. 30/2000, petitioner instituted EP No. 24/2012 seeking to realise the balance amount due to him in the second suit i.e. OS No. 30/2000.

(2.) This Court is given to understand that the judgment -debtors filed no objections. Strangely enough the Court below dismissed EP No. 24/2012 on two grounds. They are, (1) there was no order for rateable distribution and (2) the execution petition is barred by limitation.

(3.) Learned counsel appearing for the petitioner pointed out that both the grounds are unsustainable both in law and on facts. The question of rateable distribution does not arise for consideration because decrees were held by same person and there is no question of different persons holding decrees. As far as the ground of limitation is concerned, learned counsel pointed out that the Court below at least should have noticed the date of the decree passed. The decree is of the year 2001 and the execution petition was filed in 2012. Obviously, it cannot be barred by limitation. Therefore, learned counsel pointed out that both the grounds are clearly unsustainable and the execution petition has to be proceeded with.