KORAH KURIAKKOSE Vs. CHACKO JOSEPH

JUDGEMENT

(1.) This second appeal is by the decree holder and the question is whether execution is barred.

(2.) The Munsiff in considering the matter observed that R.207 of the C. C. Guide calling for the payment of process fee along with execution petition had been violated, with the consequence that the execution petition stood the risk of rejection under R.210 by court without opportunity given for making it good and there was nothing wrong in the rejection by the court of the execution petition on the next day. The learned District Judge has added nothing to this argument of the Munsiff. But it must be remembered that R.210 to the extent it provides for a rejection without opportunity for amendment is opposed to the provision in O.21, R.17 of the C. P. C. on the matter and must be deemed to be ultra vires. Indeed the Civil Rules of Practice which came into force, after the Munsiff passed his order but before the Judge disposed of the appeal, has brought the corresponding R.249 in conformity with the provision of the C. P. C. above referred to. And it is also proper after accepting an execution petition and numbering the same to afford an opportunity to the party to cure any defect if defect there be, instead of summarily dismissing the same. It may sometimes be that what is conceived to be a defect by the office may not be a defect at all. All the more reason why the party should be heard before his petition is dismissed.

(3.) It follows therefore that the dismissal of the execution petition of 3-3-1952 was not a judicial disposal thereof. If so that application must be deemed to be pending and no question of bar of limitation as regards the next execution petition could arise. The orders of the court below are therefore wrong and hereby reversed. The appeal is thus allowed. The Munsiff will take back the latest execution petition on the file and dispose of it in due course of time. There will however be no order for costs as the respondent has not appeared to oppose.