KURUVILLA Vs. DEVASSIA

JUDGEMENT

(1.) The question which arises for decision in this second appeal is whether execution of the decree is barred by limitation or not. The execution court held that it was barred, but the lower appellate court reversed the decision of the execution court and held that there was no bar of limitation and plaintiff 1 was competent to execute the decree. Defendant has, therefore, filed this second appeal.

(2.) The decree is dated 30-4-1118 corresponding to 15-12-1942 and directs plaintiff 2 to recover from the defendant certain amounts for and on behalf of plaintiff 1. On 22-4-1121 plaintiffs 1 and 2 made a joint application for execution, E. P. No, 272 of 1121, and that application was dismissed on 23-4-1121 on the ground that copy of the decree was not produced by the plaintiffs. The case was not posted to 23-4-1121 and the plaintiffs were also not called upon to produce a copy of the decree before the application was dismissed. There can, therefore be no doubt that the execution petition, No. 272 of 1121, was not judicially disposed of on 23-4-1121, and that even after that date the said execution petition must be deemed to have been pending. There were two subsequent execution petitions by plaintiff 1 alone, one, namely, E. P. No. 209 of 1124, on 19-4-1124 corresponding to 4-11-1948 and the other, namely, E. P. No. 672 of 1951, on 22-12-1951 corresponding to 7-5-1127. These two execution applications were dismissed, the first on 2-5-1124, corresponding to 16-12-1948 and the second on 19-5-1952, for failure of plaintiff 1 to cure defects. The disposals were on the date to which the case had been posted. A fourth execution petition, E. P. No, 202 of 1952, was filed, this time by plaintiffs 1 and 2 jointly, on 16-6-1952 and it was dismissed on 31-7-1952, a date to which the District Munsiff had not posted the case. Then, on 29-11-1954, plaintiff 1 alone filed another execution petition, E. P. No. 728 of 1954, on the basis that plaintiff 2 had assigned his rights under the decree to plaintiff 1 and plaintiff 1 alone was therefore competent to execute it. To this execution petition the defendant objected on the ground that it was barred by limitation. The decree is an unregistered one. The defendants contention is that although E. P. No. 272 of 1121 was not judicially disposed of on 23-4-1121, E. P. No. 209 of 1124 has been judicially disposed of on 2-5-1124 (16-12-1948), that this judicial disposal of a subsequent execution petition amounts to a final order on the previous execution petition (E. P. No. 272 of 1121) and so E. P. No. 272 of 1121 cannot be deemed to be pending after 2-5-1124 corresponding to 16-12-1948, that the third execution petition, E P. No. 672 of 1951 was filed more than three years after the disposal of the execution petition (E. P. No. 209 of 1124) and so the third execution petition and the execution petitions filed after it also are barred by limitation. In support of this contention he relies upon the full bench decision in Krishna Panicker v. Kunju ( 1953 KLT 670 ) wherein it has been held that the judicial disposal of a subsequent execution petition which could be held to be a continuance of prior applications amounts to a final order on prior applications even when they could be deemed to be pending and capable of revival.

(3.) The Full Bench decision is not, however, applicable to the facts of the present case. What the Full Bench has said is that the judicial disposal of a subsequent execution petition which, could be held to be a continuance of a prior application amounts to a final order on the prior application. In this case, E. P. No. 209 of 1124, the judicial disposal of which is being relied upon as a final disposal of both E. P. Nos. 209 of 1124 and 272 of 1121 cannot be deemed to be a continuance of E. P. No. 272 of 1121. As has been stated already, the person entitled to execute the decree was plaintiff 2, and he had not given up his right to execute the decree until 29-11-1954 when alone he assigned his rights to plaintiff 1 and the latter became competent to execute the decree by himself. Any execution application made before that date without plaintiff 2 being a party to it was not a valid execution application and could not be deemed to be a continuance of the first execution application of 22-4-1121 made jointly by plaintiffs 1 and 2. To E. P. Nos. 209 of 1124 and 672 of 1951 plaintiff 2 was not a party. They were not therefore valid execution applications and have to be left entirely out of account in considering the question of limitation. The first application to which plaintiff 2 was a party after the disposal of E. P. No. 272 of 1121 on 23-4-1121 was E. P. No. 202 of 1952 made on 16-6-1952. Therefore till 16-6-1952 E. P. No. 272 of 1121 must be deemed to have been pending. The disposal of E. P. No. 202 of 1952 also was not a judicial disposal as it was dismissed on a date to which the case had not been posted by the District Munsiff. In this view, E. P. No. 728 of 1954, which, even though made by plaintiff 1 alone, is a valid execution application in as much as it has been made by him after he obtained the assignment from plaintiff 2 and became competent to execute it, his to be deemed as a continuation of E. P. Nos. 272 of 1121 and 202 of 1952 neither of which has been judicially disposed of. The lower appellate court was, therefore, perfectly right in holding that there was no bar of limitation and plaintiff 1 was competent to execute the decree. 1 he second appeal is therefore dismissed with costs.