VISWAMBARAN M. K Vs. STATE OF KERALA

JUDGEMENT

(1.) Petitioners are the petitioners in the writ petition and they seek review of the judgment dated 30-07-2007 passed in the writ petition. The main relief sought for in the writ petition was to quash Ext.Pl2 order of the execution court. Ext.P12 was passed on an application for restoration of an execution petition in which the writ petitioner was the judgment debtor and also for condonation of the delay caused in the matter of depositing the value of improvements which had been ordered to be paid by the decree holder. Under the judgment, I upheld Ext.Pl2 incorporating a condition that a sum of Rs. 1501/- shall be paid by way of cost. The review petitioners seek review of the judgment on the ground that the judgment suffers from an error of law apparent on the face of the record. It is urged that the provisions of the Limitation Act do not apply to applications for restoration of execution proceedings filed under Order XXI CPC. It is pointed out that the order of the execution court dismissing the execution petition became operative on 12/08/2004 due to the failure of the decree holder to make deposit and therefore application for restoration should have been filed on 11/05/2004 which apparently was not done. It is urged that this Court went wrong in holding that the restoration petition can be entertained as it actually related only to the deposit. According to the review petitioners, the above view of this Court is contrary to statutory provisions and the order in so far as the same is made in violation of statutory provisions and decisions of the Supreme Court is bad per se.

(2.) I have heard the submissions of Sri. K. Ramkurnar, learned senior counsel for the review petitioners and also those of Sri. M.K. Sucheendran, an Advocate, the second respondent who appeared in person. I have also heard Sri. K. VJayachandran, learned Counsel for the respondents. Sri. K. Ramkumar, learned senior counsel submitted that the review petitioners are the legal representatives of defendants 2 and 3 in the suit. The suit was for setting aside the sale deed executed by the fourth defendant Karthiyani Amma in favour of the first defendant Parukutty Amma and for recovery of possession of the properties from defendants 2 and 3 with damages. The suit was decreed and recovery of possession was ordered against defendants 2 and 3. Sri. Ramkumar submitted that the first execution petition was filed on 05/04/1966 which was dismissed due to the absence of the decree holders on 30-07-1996. On 25-11-1969 in A.S. No. 170/1967 the trial court's decree was affirmed by the Sub Court. E.P. was filed on 05/04/1974 which was dismissed on 21/03/1976. Thereafter fresh E.P. No. 367/1981 was filed on 20-11-1981. The legal representatives of the defendants who died in between were made parties in the execution petition. On 12/03/1984, the Commissioner appointed by the court submitted a report assessing value of improvements. On 27-09-1993, the execution petition was dismissed for failure to deposit the value of improvements before the expiry date. Against that C.R.P. No. 219/1994 was filed. C.R.P. No. 219/1994 was disposed of holding that execution petition was not time bailed. Sn. K. Ramkumar, learned senior counsel submitted that it was also held that, the judgment debtors are entitled for [evaluated cost. C.R.P. was disposed of on 17/09/1996. Sri. K. Ramkumar submitted that on 09/09/2003 execution petition was re-opened pursuant to the High Court's order in the C.R.P. for hearing. E.P. was allowed on 12/08/2004 directing the decree holders to deposit Rs. 1501.96 within seven days. In the meanwhile the first JD Parukutty Amma and the fourth JD Karthiyani Amma had passed away. Sri. K. Ramkumar submitted that till date, the legal representatives of those JDs have not been brought on record. The order of the execution court on 12/08/2004 allowing the E.P. and directing recovery was on condition that the decree holders deposit the balance amount of Rs 1501.96 and on the assumption that the amount will be deposited, delivery was posted on 18/09/7004. On 18/09/2004, when the E.P. was posted, the same was dismissed since no amount had been deposited. The learned senior counsel, submitted that on 22/09/2004, the decree holder filed an application on the ground that he had fallen ill seeking restoration of the execution petition and for receiving the amounts. The above application was accompanied by an application for condonation of delay in depositing the amount. That was E.A. No. 1027/2004. The applications were opposed on the ground that legal representatives of the deceased judgment debtors were not impleaded and therefore the E.P. itself was defective. Sri. Ramakumar submitted that it was also contended by the judgment debtors that in terms of Rule 105 of Order XXI of CPC, an application for restoration is not maintainable but only a revision to the High Court will lie. According to Sri. K. Ramkumar, without even referring to the objections, the E.A. was allowed and it was against the order allowing the E.A. that the writ petition was filed.

(3.) Sri. Ramkumar, learned senior counsel argued that admittedly the order dated 18/09/2004 in E.P. No. 367/1981 was not an order by default, but it was an order dismissing the petition for not depositing the amount. No application for restoration of the execution petition could lie under Rule 105(2). It was under Rule 106(3) Order XXI that E.A. No. 1027/04 was filed. The said Rule applies not to an order for failure of deposit, but only to set aside an order made ex parte. Therefore the application was not maintainable. The only option according to the learned senior counsel, for the decree holder was to file a fresh execution petition, or seek revision of the order dated 18-09-2004 under Section 47 of the Code after 1976 amendment. According to Sri. K. Ramkumar there was no question of condoning the delay as the Execution Petition had already been dismissed and without invalidating that dismissal order there cannot be an application for restoration. The application E.A, 1027/2004 which was admittedly for restoration therefore was not maintainable at all. Sri. K. Ramkumar submitted that this Court did not notice the nature of the application filed as EA. No. 1027/2004 and interfered with the order of the court below only to the extent of ordering costs. According to the learned senior counsel E.A. 1027/04 was itself not maintainable in law since the order dated 18-09-2004 was not challenged either in revision or by way of writ petition. Since the execution court restored the petition without jurisdiction this Court should have intervened in exercise of powers under Article 227 of the Constitution. Since that has not been done, the judgment needs review. Sri. K. Ramkumar, learned senior counsel would place reliance on the judgment of the Supreme Court in Damodaran Pillai v. South Indian Bank, 2005 4 KerLT 192.