PAKKIER KOCHU THAMPI Vs. UTHUMMAN

JUDGEMENT

(1.) The facts, so far as they are necessary for the decision of this Second Appeal, fall within a narrow compass and may be briefly stated. The respondents, who are the decree holders, applied to the execution court for the delivery of possession of a property, which they had purchased in execution. By a separate proceeding which had been taken at the instance of an attaching decree holder in another suit, it was prescribed, that the respondents must deposit in the execution court 1/7th of the amount for which they purchased the property, as a condition precedent to the delivery of possession. Accordingly, the respondents' application for delivery of possession was posted on the 10th October, 1955, for the deposit of the amount ordered. No deposit having been made, the application was posted on the 15th October 1955, for disposal. The respondents then made an application for adjournment, which was granted, and the case was posted on the 22nd October, 1955, for the deposit of the amount. The application for delivery of possession was again adjourned to the 31st October, 1955. The respondents made no deposit and therefore the execution court dismissed the application.

(2.) On the 7th November, 1955, the respondents made an application to the execution court, the prayer in which was to restore the application for delivery of possession, on a review of the order dismissing it. The ground alleged for this purpose was, that the respondents were not intimated by their counsel as to the date fixed by the execution court for the making of the deposit. The execution court in its order dated the 16th January, 1956, held "that the allegations contained in the petition are not proved and are all false........Though no new grounds are now made out for a review of the order, as a matter of equity, I would allow this petition on terms........" The respondents were directed to pay a sum of Rs. 7/- by way of costs.

(3.) The judgment - debtor, who is the appellant here, preferred an appeal which was heard and disposed off by the Subordinate Judge, Kottarakara. In dismissing the appeal, he observed, that the "failure to deposit the amount in the time originally fixed by the court was........ sheer inability to raise the amount,"