LEKSHMINARAYANAN POTTI Vs. BHARGAVI ANTHARJANAM

JUDGEMENT

(1.) This appeal arises out of a Judgment passed by our learned brother T.K. Joseph, J. dismissing a second appeal filed by the 1st defendant judgment - debtor even at the stage of admission.

(2.) The question is one of limitation in execution. The last execution petition was filed on 8-6-1950. The question of limitation depended upon whether the immediately prior execution petition of 31-10-117 had been disposed of judicially on 2-8-1118. It would appear that fresh notice had been ordered on that application on 21-7-1118. No date was fixed for payment of process fee though posting was made for the return of the notice on 12-10-1118. However under the Rule of the Civil Courts Guide process for issue of notice had to be paid into court within three days of the order. As by 24-7-1118 process within the meaning of this Rule was not paid by the decree holder the execution petition of 31-10-1117 was taken up and dismissed on 2-8-1118. Clearly this order of dismissal was not passed on the expiry of three days fixed by the Rule nor on any notified day. On this ground learned single Judge, along with the courts below held that there was no judicial disposal of the execution petition of 31-10-1117 and execution was accordingly not barred and so refused to admit the appeal. However on his attention being drawn to the case in Mohammathu Ummal v. Mohammad Ummal, AIR 1951 T-C 179 he gave leave to appeal and hence this appeal.

(3.) Now it may be taken to be settled that if an order is properly passed for payment of process fee though no date is fixed for such payment in the order then on default of payment within the time prescribed, if any, by the Civil Courts Guide an order passed on the date of expiry of the period prescribed or reasonably promptly would be a judicial order. See Thanuperumal Pillai v. Thanumalayan 1948 TLR 237 FB. This expression reasonably prompt came in for use in the later case of Narayani Amma v. Krishnan Nair, ILR 1951 T-C 540. There the case was adjourned to a particular date for filing an application by the decree holder for the appointment of guardian. The decree holder did not make the application on that date and so, on the next day the execution petition was dismissed. The learned Judge said that a disposal could be taken to be judicial if such disposal appears to be reasonably prompt in the circumstances of the case and not a surprise owing to the delay as in the instant case. In AIR 1951 T-C 179 referred to in the order granting leave, the dismissal of the E.P. was on the 3rd day after the expiry of the time prescribed in the Civil Courts Guide and the learned Judges held it was a reasonably prompt order.