ITTAN MATHAI Vs. AVIRA SKRIA

JUDGEMENT

(1.) The appellant is judgment debtor in O.S. No. 296 of 1099 of Moovattupuzha Munsiff's Court, pending execution in Thodupuzha Munsiff's Court. The appeal is against the order dated 1.2.'25 in A.S. 29 of 1123 of Parur District Court holding that the auction purchaser's application for delivery of property dated 16.6.1122 is not barred by limitation of time. In execution of the decree 4 items of properties were sold on 7.4.1109. On 12.3.1110 the auction purchaser applied for delivery of all the 4 items. There was an obstruction to the delivery. The obstruction petition was rejected on 19.2.1113 and delivery was ordered. The Amin delivered only items 1 and 2. He did not deliver items 3 and 4, on the ground that there was tapioca cultivation in items 3 and 4. The delivery report was filed on 21.3.1113. On 23.3.1113 the case was posted to 30.3.1113 for further steps. The auction purchaser did not apply for further steps and the application for delivery was rejected on 1.4.1113. The present application was filed on 16.6.1122. The judgment debtor contends that the order dated 1.4.1113 was a judicial order and the present application is barred by limitation of time as it comes more than 3 years after the order of 1.4.1113. The Trial Court repelled the defence plea. In appeal the order of the execution court was confirmed. Hence this second appeal by the judgment debtor.

(2.) The learned counsel for the appellant contends that the order dated 1.4.1113 is a judicial order, that the present execution application, for delivery filed as it is, beyond 3 years is out of time, that the decision in Abdul Kathiru Kunju v. Chakka Devaki, 35 TLJ at 133, relied on by the lower court does not apply to the facts of this case and that in view of the fact that the auction purchaser slept over his rights for over 9 years it must be deemed that he abandoned his right to execute the decree.

(3.) There is force in the argument that the decision in Abdul Kathiru Kunju v. Chakki Devaki, 35 T.L.J., at 133, does not in terms apply to the facts of this case. The question raised in that case was whether there is time limit for delivery of property when once the court passed an order of delivery. The court held that no period of limitation is prescribed for a judicial order of delivery being given effect to by the ministerial officers of the court. But going through the judgment it is not possible to see whether the original application for delivery was pending. In that case the auction purchaser applied for delivery on 5.7.1111 within 3 years of the confirmation of sale. The court ordered delivery on 28.10.1111. The Amin went to the spot but was not able to effect delivery owing to an obstruction. On 10.12.1111 the auction purchaser applied for removal of obstruction, but his petition was dismissed being out of time. The next application for delivery was made on 15.2. 1112 and the property was delivered. The judgment debtor filed a petition to vacate the order of delivery, contending among other things that the application dated 15.2.1112 being beyond 3 years from the confirmation of sale was barred by limitation. The court repelled the plea and found that the application of 15.12.1112 was only a continuation of the application dated 5.7.1111. We do not find any hint in the judgment as to whether the prior application was or was not alive at the time when the auction purchaser presented his second application. Our doubt becomes stronger when we read the decision in Sheshi Ammal v. Lekshamanan Pillai, 1945 T.L.R. at 393 by the very same learned Judges who decided the case in 35 TLJ at 133. Both the decisions appear to have been pronounced on the very same day. The gist of the decision in Sheshi Ammal v. Lekshmanan Pillai, 1945 T.L.R. 393 is this - "When once an order for delivery has been passed under O.21 R.92, thee is no provision in the Code for a further application to put through the order by a warrant to the amin. If the decree holder is unable to take advantage of that order on a particular date, he is not prevented from taking advantage of it on a future occasion. There is no period of limitation prescribed for executing an order for delivery by the issue of warrant to the Amin". In that case Their Lordships have made it perfectly clear that the original application for delivery was still pending. Their Lordships did not consider the effect of the dismissal of the prior application. This is what Their Lordships observe - "It is unnecessary for the purpose of this case to consider whether when once an order for delivery has been made a subsequent dismissal of the petition on the ground of default of the decree holder to pay batta or otherwise would entail the setting aside of the original order of delivery in its entirety." We therefore assume that the original application for delivery was pending in the case reported in 35 TLJ 133 and find that the decision cannot apply to this case. The learned Counsel for the appellant called our attention to an observation in the decision in Mytheen Kunju v. Janaki Amma, 19 T.L.T. at 607 and contends that the dismissal of the application for delivery in this case on 1.4.1113 bars the present application of the decree holder. In that case the court ordered delivery on 14.11.1112; when the amin went to the spot the decree holder stated that he did not want to take delivery and the Amin returned the warrant of delivery reporting that the decree holder declined to take delivery. The court dismissed the application for delivery without notice to the auction purchaser. The court held that execution court was not bound to keep the petition pending as the auction purchaser declined to take delivery and treated the dismissal without notice as judicial. This point was not material for the decision of that case, but the observation is there - (see paragraph 4 of the judgment on pages 609 and 610 of the report). The facts of the case before us are different from the facts of the case in 19 T.L.T 610. In this case the amin submitted his report on 21.3.1113 stating that items 1 and 2 were delivered and that items and 3 and 4 could not be delivered. On 23.3.1113 the court posted the case to 30.3.1113 for further steps. The decree holder did not apply for further steps on 30.3.1113 and the application for delivery was dismissed on 1.4.1113. We do not feel persuaded to treat the disposal as judicial. The Full Bench decision in Thanupermal Pillai v. Thanumalayan 1948 T.L.R. at 237 lends support to this view we take. In that case, on an execution application dated 12.6.1113 the court ordered notice under O.21 R.20 and fixed 14.11.1113 as the date of the return notice. On that day the defendant did not appear. Order for process was passed on 15.11.1113 in the absence of both parties. 18.11.1113 was fixed for the payment of process. No order was passed on 18.11.1113. The execution application was dismissed on 20.11.1113 for nonpayment of the process. The court held that the dismissal was only ministerial. The ground seems to be that the parties had no knowledge of the order on 15.11.1113 posting the case to 18.11.1113. The gist of the decision is clear from paragraph 1 of the order passed by His Lordship Mr. Justice Krishna Pillai - "Ordinarily no order of dismissal for default can be held to be judicial unless the party had previous notice that the particular act the failure to perform which has been penalised by dismissal had to be performed on the particular date. If, in spite of such dismissing the petition without further formality involving all the consequences of a judicial disposal whether the order is passed on the very day of default or within a reasonable time of it as in any other case of default. The all important question in such a case is of default with notice". In the case before us, going through the execution diary we do not think that the party had notice of the order on 23.3.1113 calling upon him to take further steps on 30.3.1113. If that be so, the dismissal of the application on 1.4.1113 for failure to take steps on 30.3.1113 cannot be deemed to be judicial. In this view, the auction purchaser's application dated 16.6.1122 is only a reminder of the application dated 12.8.1110.