SUBBULAKSHMI AMMOL Vs. R BALASUBRAMANIAN

JUDGEMENT

(1.) The order of the executing court dismissing the petition for execution is unsustainable. The petitioner obtained a decree against the respondents on 30-11-1963. Execution proceedings were filed on 22-4-1975. It was taken on file on M.P. SC No. 74 of 1975. The property of the judgment-debtor was brought to sale, but the sale was adjourned on the ground of no bidders. The judgment-debtor filed a suit C.S. No. 83 of 1977 and prayed for an order of injunction in I.A. 446 of 1977 restraining the decree-holder from proceeding further with the execution of the decree. On 28-2-1978 an order of injunction was passed. Pursuant to the said order of injunction, the exceeding court closed the execution petition on 30-8-, but directed the attachment to continue. The suit O.S. No. 83 of 1977 was dismissed on 11-3-1982. On 27-3-1982, the present execution petition was filed by the decree-holder and numbered on S. P. No.17 of 1983. The decree-holder also filed a memo in the executing court to the effect that the prior E.P. is revived and the present E.P. is only a continuation of the prior R.P.

(2.) The executing court taking a wrong view that the execution proceeding are barred by limitation dismissed the same. Aggrieved by the said order, the decree-holder has preferred this revision petition.

(3.) Even on statement of facts given above, it is clear that the execution proceedings are not barred by limitation. On 30-8-1978, the executing court had no jurisdiction to close the R.P. As there was an order of injunction passed by a civil Court restraining further proceeding in the E.P. the executing Court ought to have kept the petition pending. But for statistical purposes it had closed the E.P. and at the same time directed the attachment to continue. That itself shows that the executing court did not intend to terminate the proceedings, but thought of keeping the execution proceedings alive and pending, though for the purpose of record it did not want to show the execution petition of the year 1975 as pending. Thus the order dated 3-8-1976 will not have the effect of dismissing the execution petition filed by the decree-holder. In the eye of law, E.P. 74 of 1975 is still pending on there was no termination of the same in accordance with law.