JOHN VARUGHESE Vs. YOHANNAN GEEVARUGHESE

JUDGEMENT

(1.) IN this second appeal which relates to a matter in execution, two questions arise for decision.

(2.) The first is whether the application for delivery of the properties sold in execution made on 31 -7 -1952 is barred by limitation or not. On that question the first court held against the assignee -decree -holder and the lower appellate court held in his favor. The execution sale was confirmed on 15 -11 -1121 M.E. On 23 -6 -1122 the decree -holder -auction -purchaser applied for delivery, and delivery was ordered on 22 -7 -1122. The order on that date was 'deliver on 24 -7 -1122. The warrant for delivery was given to the Amin on 23 -7 - 1122, and in the warrant there was a direction that it was to be returned to the court on 26 -7 -1122. On 26 -7 -1122 the Amin returned the warrant to the court without executing it and stating that defendant 1 had died on 22 -6 -1122. The court then posted the case on 26 -7 -1122 itself to 7 -10 -1122 for impleading the heirs of defendant 1, and since the decree -holder did not make the necessary application on 7 -10 -1122 the court dismissed on 7 -10 -1122 the application of 23 -6 -1122. On 31 -7 -1952 the assignee -decree holder made a fresh application for delivery on the basis that he was not aware of the order of 26 -7 -1122 posting the case to 7 -10 -1122, and it is this application that the appellant contends is barred by limitation. Neither in the order dated 24 -7 -1122 passed on the petition of 26 -7 -1122 nor in the execution diary it was stated that the Amin was to return the warrant of delivery on 26 -7 -1122. In the ordinary course of business, the decree -holder will have no right to call for the warrant of delivery from the Amin and scrutinize it. In these circumstances I agree with the lower appellate court in considering that he could not have known that the Amin would return the warrant on 26 -7 -1122 or have had notice of the order of that day posting the case to 7 -10 -1122. A dismissal for default, when he had no notice of the posting date and what he had been ordered to do on that date, cannot be held to be a judicial disposal of the application for delivery. In this view the lower appellate court's order holding that there is no bar of limitation in this case is right and has to be confirmed. The second ground urged by the appellant's counsel is that the appellant had contended in the execution court that the assignment taken by the assignee decree -holder was benami for the defendants and so the assignee could not be allowed to obtain delivery and that neither of the courts below has considered this question. As may be seen from their orders the courts below have not considered this objection. The case has therefore to be remanded to the first court for enquiry and disposal of this objection.