KUMARADASAN NAIR J Vs. IRIC SOHAN

JUDGEMENT

(1.) The revision is directed against the order passed by the Execution Court entertaining an application moved by the decree holder treating that petition as a continuation of a previous E.P., which was earlier dismissed, and ordering delivery of the decree schedule property.

(2.) The basic facts involved are not in dispute. The 1st respondent obtained a decree in O.S. No. 150/65 on the file of the Munsiff Court, Thiruvananthapuram for a declaration of title and possession over 8 cents of property in Survey No. 365 of Chenganacherry village, Thiruvananthapuram with direction to the defendant to remove at his expense a wooden shed in that property, failing which the decree holder was allowed to get the shed removed through court and obtain delivery of the property. The decree also provided mesne profits at the rate of Rs. 50A from the date of suit till delivery of possession to the decree holder. The decree was put in execution by the 1" respondent/decree holder as E.P. 705/77. He passed away on or about 28.3.1985. His heirs and legal representatives were substituted in the execution petition as additional decree holders 2 to 6 and they are respondents 2 to 6 in the revision. Againsed the decree passed by the trial court, there was first and second appeals, both were dismissed During the pendency of such appeals, there was also stay of executing the decree by orders passed by the respective appellate courts. The second appeal was dismissed on 4.11.1981. Meanwhile, the judgment debtor moved an application before the Land Tribunal claiming the benefits under the Land Reforms Act over the property covered by the decree in which the owner of the property was shown as a different person. The Land Tribunal allowed that application ordering issue of a purchase certificate. The decree holder challenged that proceedings before the Appellate Authority and the purchase certificate ordered was cancelled by that authority. The judgment debtor by that time suffered another decree passed in O.S. No. 274/82. Pursuant to the execution of that decree, a sale certificate in respect of the property covered by the decree in O.S. No. 150/65 as well was issued in favour of that decree holder. The revision petitioner purchased the property in auction. Respondents 1 to 5 fled a second execution petition on or about 11.9.2001. The revision petitioners were impleaded as respondents 16 and 17 in that petition. They filed objections impeaching the maintainability of the execution petition, inter alia, contending that it was barred by limitation. Objections raised by the revision petitioners were rejected by an order dated 6.9.2005 ordering delivery of the property to the decree holders after removing the structures. Against that order, the petitioners moved an appeal as A.S. No. 301/05. The appellate court found die appeal not maintainable by an order dated 5.10.2005 in which the merit of the matter was also considered. The petitioners preferred a second appeal as Ex.S.A. No. 17/05 before this Court. That appeal was disposed of by judgment dated 13.6.2008 holding that the appellate court was not correct in entering into the merit of the matter when the appeal was found not maintainable. The appeal was disposed without prejudice to the rights of the appellant for appropriate relief by way of revision or otherwise, if so advised. Pursuant thereto, the petitioners moved a revision with a petition to condone delay of the period, the first and second appeals were prosecuted seeking exemption for such period under Section 14 of the Limitation Act. This Court by order dated 13.11.08 dismissed the delay petition holding that Section 14 of the Limitation Act has no application, consequently, the revision was also dismissed. Against that order, the petitioners filed S.L.P. before the apex court Leave was granted by the apex court and the appeal preferred against the order was allowed setting aside the order dated 13.11.2008 previously passed in the revision and the matter was remitted to this Court for consideration on merits. Accordingly, the revision has again come up for consideration before mis court.

(3.) I heard the learned senior counsel Sri. T. Krishnan Unni appearing for the revision petitioners and the learned Counsel Sri. P. Chandrasekhar for respondents 2 to 6/the additional decree holders. The execution petition filed on 11.9.01 after the dismissal of the previous execution petition on 8.7.06 was hopelessly barred by limitation and the court below went wrong in entertaining the second execution petition as an application for revival of the earlier execution petition and ordering delivery of the property, submits the learned Counsel for the petitioners. Reliance placed by the court below in Mary George v. Zacharia Kuriakose,1988 1 KerLT 345 was also attacked by the learned Counsel for the s; petitioners contending that in that case a review sought for by the decree holder was perfectly entertainable as the court had dismissed the previous execution petition by mistake holding that the decree holder had not taken steps for remitting bata fixed though he had already remitted the bata. So must so, it cannot be stated, according to the counsel, that the decision is an authority that if a previous execution petition is not disposed of by ajudicial order, it can be revived at a subsequent stage whatever be the lapse of time after the dismissal of the previous application. The learned Counsel for the petitioners relied on Pentapati China Venkanna and Ors. v. Pentapati Bangararaju and Ors., 1964 AIR(SC) 1454, David Varghese v. Madhavan,1986 KerLT 922, K.P. Kallani Amma v. M. Narayanikutty Amma,1986 KerLT 25 (Page 14) and Rajammal v. State Bank of Mysore,1992 2 KerLT 321 to contend that the second execution petition moved by the decree holders was a fresh application beyond the period of 12 years from the date of the decree and it cannot be treated as a continuation or to revive the previous execution petition, which was dismissed by order dated 8.7.1996. On the other hand, the learned Counsel appearing for the decree holders contended that the dismissal of the previous execution petition E.P. No. 705/77 was not by a judicial order, but only a closing of the petition which should be treated as one passed by the court for statistical purpose. So long as a judicial order as to the satisfaction of the decree executed has not been passed by the court mere dismissal of the execution petition will not debar the right of the decree holder to seek execution of the decree and in that case, according to the counsel, it is only a revival of the previous execution petition and there is no bar of limitation. The learned Counsel for the petitioners placed reliance on Koran Kuriakkose v. Chacko Joseph,1958 KerLT 322, Perimal Narayani v. Velayudhan Ramakrishnan,1965 KerLT 759, Anandilal and Anr. v. Ram Narain and Ors., 1984 AIR(SC) 1383, Mary George v. Zacharia Kuriakose,1988 1 KerLT 345, T.S. Lakshmikutty Amma v. Oommen Ninan,1992 2 KarLJ 923 and Deep Chand and Ors. v. Mohan Lal, 2000 6 SCC 259 to contend that where there was no judicial order evincing application of mind of the court in disposing of an execution petition but only a dismissal for default or ordering closing of the petition, it has to be considered only as ministerial order and such order does not bar the right of the decree holder to move a fresh application for executing the decree. In such cases, according to the teamed counsel for the petitioners, the bar of limitation has no application.