SUBRAMONIAM KUMARAN Vs. ESAKKIMADAN ARUMUGHOM

JUDGEMENT

(1.) Additional decree holders 2 and 3 are the appellants in this Second Appeal. The Second Appeal relates to an order in execution. The question for decision is whether the execution of the decree is barred by limitation. The decree is one for redemption. The appellate decree was passed on 1.4.1108. The first execution petition was filed on 26.5.1112. A copy of the decree was not produced along with the execution petition. On 28.5.1112 the court passed an order to the following effect: Decree not produced Rejected". The present execution petition was filed on 9.12.1121 more than 12 years after the date of the decree. The 4th defendant contended that the execution petition was barred by limitation. According to the decree holders the execution petition dated 26.5.1112 has not been judicially disposed of and the execution petition dated 9.12.1121 should be regarded as one in continuation of that petition. The execution court accepted the contention of the decree holders and held that execution was not barred by limitation. In appeal filed by the 4th defendant, the District Court held that the execution petition dated 26.5.1112 has been judicially disposed of, that the execution petition dated 9.12.1121 was a fresh execution petition and that it was barred by limitation.

(2.) The two questions that arise for consideration in the Second Appeal are:- (i) whether the execution petition dated 26.5.1112 which was filed without a copy of the decree was one in accordance with law, and (ii) whether the disposal of that execution petition on 28.5.1112 was a judicial disposal or only a ministerial disposal. The Code of Civil Procedure that was in force when the execution petition dated 26.5.1112 was presented was the Travancore Code of Civil Procedure, Act VIII of 1100. O.21 R.9(2) of that Code prescribed the requirements of a written application for execution of a decree. It was not stated in that sub-rule that a copy of the decree sought to be executed should be produced along with the execution petition. Sub-r. (3) of R.9 provides as follows:-

(3.) R. 204 of the Travancore Civil Courts Guide which was in force when the execution petition was presented required that a copy of the decree should be produced along with the execution petition. It is therefore necessary to consider whether non compliance with that rule would make the execution petition one not in accordance with law. This question was considered by the Travancore High Court in Raman v. Narayana Pillai (18 TLJ 1). It was held in that case that non compliance with R.204 of the Civil Courts Guide would not by itself make an execution petition one not in accordance with law. Following the decision of the Madras High Court in Pachayappa Asari v. Poojali Seenan (28 Mad. 557) and that of the Bombay High Court in Ramachandra Sadashiv v. Lekshman Sadashiv (31 Bom. 162) Parameswara Menon and Bhoothalingom Iyer, JJ. held that R. 204 of the Civil Courts Guide only prescribed a condition precedent for further action being taken by the court on the execution petition and that non compliance with the rule would not make the execution petition one not in accordance with law. Referring to a similar provision in the Madras Civil Rules of Practice. Subramonia Iyer, Officiating Chief Justice and Sankaran Nair, J. observed in (28 Madras 557):-