MARY GEORGE Vs. ZACHARIA KURIAKOSE

JUDGEMENT

(1.) AN Execution Petition, filed twelve years after the date of decree, was treated as a continuation of the earlier execution petition which was dismissed. The judgment debtor's contention that the execution petition is barred by limitation was hence repelled. This Civil Revision petition is filed by the aforesaid judgment debtors. The argument is that the dismissal of the earlier execution petition was by a judicial order and hence a subsequent petition cannot be treated as a continuation of the earlier petition.

(2.) THE following facts are relevant for decision in this revision petition: THE decree was passed on 23-12-1966, for realisation of the decree amount by sale of the decree schedule properties. E. P. No. 70 of 1979 was the earlier petition filed by the decree-holder. That was dismissed on 18-7-1981 on the ground that the decree bolder had not taken steps. THE present execution petition has been filed within two days i. e. or 20-7-1981 in which it is mentioned that the dismissal of the earlier petition was based on an erroneous assumption that the decree holder had not taken steps whereas the decree holder bad in fact taken steps by remitting the batta fixed by the office of the court. THE learned Sub Judge found that the decree holder bad already taken steps and it was a mistake committed by the court in assuming that batta had not been remitted. Learned Sub Judge made the following observations "i am satisfied that the order passed by the court on 18-7-1981 was bated upon a misconception that the decree holder has failed to take steps for service of notice to the respondents. THE present execution petition has therefore, to be treated as a continuation of the previous execution petition. THE contention raised by the respondent' that execution petitioner is barred by limitation is, therefore, devoid of merits'.

(3.) IN Sarada Sundari v. Jabbar Alt (AIR 1939 Cal. 331) a division Bench of the Calcutta High Court considered a similar situation. An application for execution was posted to 8-7-1930 for sale of the decree schedule properties. The Nazir of the court reported that the decree holder was absent on that day and that no further steps had been taken by him. On this report the court dismissed the execution application for default. Decree holder filed another execution application on 19-8-1933 which was beyond time. But the division Bench held that the earlier application must be deemed to be pending since the court ought not have dismissed the same, for, the presence of the decree holder on the date of sale is not compulsory. Though the dismissal of the earlier application was by a judicial order, the Bench adopted a liberal view in the matter. IN Syedmian Sahi v. Janaki Ammal (AIR 1948 Madras 498) a receiver was appointed to take possession of the decree schedule properties during execution proceedings. Receiver reported that the judgment debtor obstructed the Receiver to take possession. Then the decree holder filed an application for removal of obstruction. That was dismissed on the ground that an application for removal of a receiver to take physical possession is incompetent. On dismissal of that application, the court, dismissed the execution petition also. When subsequently the decree holder filed a fresh execution petition, which was beyond time, the court treated the earlier one as pending because dismissal of the earlier was due to a mistaken notion. The judicial nature of the order did not deter the court from treating the said application pending. A Division Bench of the Travancore-Cochin High Court considered a similar question in Ittan Mathai v. Avira Skaria (1950 K. L. T. 1 ). IN that case the execution petition was pasted to one day for further steps and on that day it was dismissed as the decree holder did not apply for further steps. The subsequent execution petition was treated as a continuation of the earlier proceedings on the ground that the decree holder had no notice of the posting date when it was dismissed for default. IN Sundaramma v. Abdul Khader (AIR 1939 Madras 418) a Full Bench of the Madras High Court observed that where the former application was dismissed, not due to any fault or neglect on the part of the applicant, but for some other reason which was subsequently shown to be untenable the subsequent application would be deemed to be one for revival of the former one. Panchapakesa Iyer, J. followed the said principle in satyanarayana v. Nagabhooshanam (AIR 1951 Madras 429 ). Thus the trend of judicial decisions is that a dismissal of execution application, for no fault on the part of the decree holder, is not to be treated as strictly judicial order, despite the apparent tenor of its judicial nature. Such a dismissed application would revive when the decree holder files a subsequent application. IN this case, the present execution petition was filed within two days of the dismissal of the earlier execution petition. The prayer made in the present execution petition is to treat the earlier execution petition as continuing on account of the erroneous order passed by the court. That apart, the present execution petition can, even if the earlier order is treated as a judicial order having binding force be entertained as a petition for review of the earlier order. The said order is vitiated by error apparent on the face of the record. On that reason also, the execution court is justified in treating the earlier application as continuing now. I find no ground to interfere with the impugned order. Hence I dismiss this C. R. P. . .