GAYATRIKUTTY AMMA Vs. BHASKARAN NAIR

JUDGEMENT

(1.) THIS second appeal is in a motion to set aside a court-sale which has been dismissed by the Courts below.

(2.) THE order of the executing Court is dated June 15,1962. An appeal therefrom "under R. 1 Order XLI C. P. C. " has been entertained by the District Judge, Kottayam, without objection as to its maintainability and been disposed of on its merits against the appellant on july 20, 1962. THE 4th defendant has come up in second appeal and here also no objection as to the maintainability of the second appeal has been taken. Counsel for the appellant submits that there is an averment in the petition drafted as "under Order XXI R. 90 and S. 151 C. P. C. " that no notice on the proclamation has been given to the appellant and that therefore the court-sale had on that proclamation is liable to be set aside and that plea goes beyond the scope of Order XXI R. 90 C. P. C. and comes within the scope of S. 47 CPC. and that it was therefore that the first appeal had been entertained in the Court below under R. 1 of Order XLI c. P. C. In the circumstances I leave the matter there.

(3.) THAT execution proceedings are judicial proceedings is not disputed. The dismissal of an execution petition is therefore the disposal of a judicial proceeding, irrespective of the correctness of that order. No doubt, by a long catena of decisions the dismissal of an E. P. for no fault or default of the decree holder has been held to be a ministerial disposal for purposes of limitation and that a subsequent E. P. for identical reliefs may be treated as a motion to continue the prior E. P. & allowed to be prosecuted as such. Counsel for appellant contends that an order of disposal of a judicial proceeding is always a judicial proceeding in itself and that the exception made in the case of E. Ps. is only for purposes of limitation and is not available for other purposes. The contention seems to have force. It cannot be said that the executing Court had no jurisdiction to dismiss the E. P. , however wrong the dismissal may be.