NARAYANA PILLAI Vs. SARADA

JUDGEMENT

(1.) This appeal is against the lower court's order overruling the 2lst defendant's objection that the decree holder's execution petition is barred by limitation. The view taken by the lower court is that the prior order on 5-1-1957 dismissing the execution petition was not a judicial order, but only a ministerial order and hence the present execution petition can be deemed to be a revival or continuation of the earlier execution petition. We think that the view taken by the lower court is right. The dismissal of the earlier execution petition on 5-1-1957 was without notice to the decree holder. In fact the decree holder could not have any notice of the posting to that date. They were in fact misled by the entry in the diary. The diary did not show any posting to 5-1-1957. On the other hand the entry was that the E. P. was dismissed on 3-1-1957. Really there was no such dismissal on that date, 3-1-1957. The order on that day was adjourning the case to 5-1-1957. As already stated the absence of an entry regarding that adjournment misled the decree holder. It has also to be remembered that the adjournments were for the purpose of hearing the objections of the 21st defendant. If the decree holders defaulted to appear, the court could have allowed the objections and then posted the case to enable the decree holders to cure the defect. This was not done. Thus in any view of the matter the disposal on 5-1-1957 can be treated as a ministerial disposal only.