MUNIAMMAL Vs. THULUKKANA NAICKER

JUDGEMENT

(1.) THE petitioners were the obstruction, against whom an order has been made by the Second Assistant Judge for removal of the obstruction. It would appear that originally, E. P. No. 543 of 1959 was filed for a delivery of possession. Obstruction was caused by these petitioners, and E. A. No. 1639 of 1959 was filed for the removal of obstruction. This application was made on 24-8-16-959. In the meantime however, these obstructors had apparently filed a suit, O. S. No. 2408 of 1959 for a declaration of the title to the property and for an injunction restraining the decree holder from executing the order for delivery that he had obtained in E. A. No. 1639 of 1959 referred to above. It is stated through it is borne out by the records, that an order of interim injunction was made towards the end of August 1959. That order appear to have been finally vacated only on 23-12-1959 when the suit filed by the obstructor was itself dismissed. In the meantime, however, E. P. No. 543 of 1959 which was the execution petition for delivery of the properties filed by the decree-holder, had been dismissed on 10-11-1959.

(2.) SUBSEQUENTLY the decree-holder filed a fresh execution petition No. 137 of 1960, seeking delivery of possession after removal of the obstruction. This was resisted by the obstructor on the ground that this application had been made more than thirty days after the obstruction and the further E. P. No. 543 of 1959 itself having been dismissed, the present petition was maintainable. The learned second assistant Judge examined the question and came to the conclusion that, because of the injunction order that had been issued against the decree holder he had been prevented from taking steps within the period of thirty days and there was no question to the prior execution application having been dismissed. Through it is not quite clear, the learned Second Assistant Judge seems to have taken the view that the previous petition was still pending and E. P. No. 137 of 1960 was not a fresh execution petition, but was a continuation of the prior petition, which must be deemed to be pending. He accordingly directed delivery of possession after removal of the obstruction. It is against this order that the present revision petition has been filed.

(3.) THE same contentions have been pressed before me. From what I have stated earlier it is quite clear that, on the obstruction caused by the application (E. A. No. 1639 of 1959) for removal of obstruction was in fact filed within 30 days. Learned counsel for the petitioners, however, urges that, whatever the reasons might be, e. P. No. 543 of 1959 was itself dismissed for default. He no doubt, concedes that, on the date on which that petition was dismissed by the court against the decree-holder was operative and that the decree-holder could not take any steps in proceedings with the application that he had made. Nevertheless according to him, since the fact that an interim injunction was in force the decree-holder was not brought to the notice of the Court, the order of the Court dismissing the petition for default was final and that would mean that the execution application for the removal of obstruction also stood dismissed. The question is whether this view is correct.