PORINCHU Vs. JOHN

JUDGEMENT

(1.) WHILE admitting this Civil Revision Petition this court by order dt. 30-5-1995 granted an interim stay of further proceedings in execution on condition that the judgment debtors deposit a sum of Rs. 3000/- in the executing court within one month of mat date for payment to the decree holder. It is submitted by learned counsel for the judgment debtors mat the sum of Rs. 3000/-was deposited in time.

(2.) IT is contended on behalf of the judgment debtors based on the decision in N. D. Namboodiri v. K. Yohannan (1956 KLT 888), kochikka v. Kunju Pennu (1963 KLT 357) and Vesudevan Unnithan v. Karthiyani amma (1966 KLT 78) that the prayer in E. A. 996 of 1992 for proceeding against the property must be treated as the filing of a fresh execution petition and since on the day E. A. 996 of 1992 was tiled, a fresh execution petition would be barred, the decree holder could not seek to proceed against the properties of the judgment debtors and was obliged to pursue only his prayer in the original execution petition for recovery of the decree amount by the arrest and detention of the judgment debtors. I notice that the decisions referred to by counsel for the judgment debtors were all based on S. 48 of the Code of Civil procedure which was deleted by S. 28 of the Limitation Act of 1963. The original prohibition against passing an order for execution of a decree on a fresh application presented after the expiration of twelve years from the date of the decree has thus been omitted. Instead Art. 136 of the Limitation Act, 1963, only prescribes a period of twelve years from the date when the decree becomes enforceable for execution of any decree other than a decree granting mandatory injunction. In such a situation all that the decree holder is obliged to do is to file a petition for execution of the decree within 12 years. The fact that he initially chose one of the alternate modes available to him to enforce the decree, would not preclude him from opting for another mode, so long as his execution petition is pending and he has failed to realise the fruits of his decree through the mode-he had initially chosen. In my view, the theory that seeking to adopt another mode for realising the fruits of a decree in a pending execution petition would amount to initiating a fresh execution, cannot have any effect in cases governed by Art. 136 of the Limitation Act and in the absence of a provision like S. 48 of the Code of Civil Procedure. The wording of s. 48 of the Code clearly indicated that even in a pending execution petition, no fresh application for execution could be presented after the expiration of 12 years from the date of the decree. S. 48 of the Code having been deleted and such a bar having been removed, it cannot be said that an alternative mode of executing the decree cannot be sought for, in a pending execution petition, even after the expiry of 12 years from the decree. All that is now needed, is that an execution petition should have been tiled within 12 years of the decree. Here such an execution petition is still pending.

(3.) IN any view, this is also not a case where this court ought to exercise its jurisdiction under S. 115 of the Code of Civil Procedure to interfere with the order of the executing court. An interference rather than non-interference would result in failure of justice. I dismiss the Civil revision Petition. . .