K ASHERAM Vs. ABDULLA

JUDGEMENT

(1.) The short question that arises for consideration in this Letters Patent Appeal is whether, by reason of the executing Court having taken the execution petition out of its file and consigned the same to records, the right of a decree-holder to execute the decree is taken away unless he had made an application for revival of the execution petition within three years from the date of that order i.e., 1-12-1951.

(2.) The facts necessary for the disposal of this appeal are these; One Chunnilal, the father of the appellant (3rd decree-holder) and others obtained a decree in O. S. No. 10/1 of 1333 Fasli against the defendants. The action was laid on the foot of a mortgage. The decree provided that the debt has to remain under mortgage till the decree was completely satisfied. A number of execution petitions were filed, the last one being E. P. No. 13/2 of 1355 Fasli for realisation of the balance of the decretal amount by sale of the mortgage property as well as arrest and detention of the judgment-debtors in a civil prison. Some of the judgement-debtors paid a portion of the decretal amount and compromised with the decree-holder. A revision was preferred in the High Court against that order by those who did not compromise and an ex parte stay order was obtained against the execution of the decree. That revision, it would appear was dismissed on 20-3-1951 for non-payment of "costs". It appears from the order of the executing Court that the order dismissing the revision for non-payment of costs was not received by it and therefore it made the following order on 1-12-1951. "Advocates for the parties present. No intimation regarding disposal of revision has been received from the High Court. The proceeding is pending since long time awaiting the disposal of the revision by the High Court. It appears proper to consign the proceedings to records. The decree-holder can submit petition for revival of proceedings after disposal of revision.. For the present awaiting the disposal of revision the file be consigned to the records." Fourteen years thereafter, decree-holder No. 3 (the appellant herein) filed E. A. No. 17 of 1965 for restoration of E. P. No. 13/2 of 1355 Fasli and that application was allowed by the executing Court on 29-7-1968. It is against that order. C. M. A. No. 247 of 1968 was preferred by judgment-debtors 8 and 12 (respondents 1 and 2 herein) canvassing the correctness of the order of the executing Court. Our learned brother. A. D. V. Reddy. J. Allowed the appeal and reversed the order of the executing Court on three main grounds viz. (1) that the decree-holder having failed to make an application for renewal of the execution petition "should be deemed to have abandoned his right to continue the prior execution petition" (2) that the application for revival filed fourteen years later is barred by limitation under old Art, 181 of the Limitation Act; and (3) that the limitation of three years for filing a fresh application commenced from the date of dismissal of the revision by the High Court which was on 20-3-1951.

(3.) Mr. Sadasiva Rao appearing for the appellant contended that the appellant was not a party to the Civil Revision Petition preferred to the High Court inasmuch as no notice was served upon him either regarding the interim stay order obtained by the judgment-debtors or as regards the filing of the main revision petition; and as such, the dismissal of the revision by the High Court for the failure of the judgment-debtors to pay "costs" or batta for serving notices on the original decree-holder cannot be called in aid either for the purpose of imputing the appellant with knowledge of the disposal of the revision or for the purpose of contending that the present application is barred by limitation. It is further contended by him that the order of the executing Court consigning the file to records is not a "final order" terminating execution petition as required under Article 182 (5) of the Limitation Act and therefore the execution petition must be deemed to be pending on the file of the executing Court, and that the direction or advice of the executing Court that the decree-holder can submit a petition for revival of the proceedings after the disposal of the revision, does not amount to making a final order in the execution petition so long as no final order is passed in the execution petition. Mr. B. V. Subbarayudu, the learned counsel appearing for the respondents, sought to counter the argument of the learned counsel for the appellant on the ground that the appellant was aware of the pendency of the revision petition in High Court on the date on which the executing Court had passed the order (extracted above) and that is borne out by the fact that the execution petition is to await the disposal of the revision pending in the High Court and it was for him, as a prudent and diligent person, to find out the fate of the revision and then pursue the execution partition; and having failed to do, he cannot be permitted after a lapse of fourteen years to make an application for revival of the execution when he should have filed the application for its revival within three years from the date of disposal of the revision by the High Court i.e. 20-3-1951. The learned counsel for the respondents also sought to contend that though the earlier part of the impugned order shows that the executing Court directed the file to be consigned to records, the direction given by it to the decree-holder to file an application for revival should be construed as a "final order " and termination of the execution petition itself and he having failed to make an application within the period of three years from 20-3-1951 the date of disposal of the revision by the High Court should pay the penalty for it.