Research › Browse › Judgment

Kerala High Court · body

1954 DIGILAW 109 (KER)

Appavu Nadar v. Daniel Nadar

1954-07-13

JOSEPH

body1954
Judgment :- 1. This is a second appeal by the decree-holder. Reversing the decision of the court of first instance, the lower appellate court held that execution was barred by limitation. 2. The decree of which execution is sought is a registered one dated 24.12.1107. The decree-holder relies on the alleged ministerial disposal of E.P. 1160 of 1108 dated 7.7.1108. The first court held that this execution petition was not judicially disposed of and that the same should be deemed to be pending. The learned judge on appeal held that the said execution petition was not one in accordance with law and that the order passed on 16.12.1108 was a judicial disposal of the petition. Thus the two points arising for decision are: (1) Whether the execution petition dated 7.7.1108 was one in accordance with law, and (2) whether it was judicially disposed of on 16.12.1108. Ist point. The decree was one for realisation of money from the judgment-debtor and by sale of properties charged under the decree. The prayers in the execution petition of 1108 were for the arrest of the judgment-debtor, for sale of the properties charged under the decree and for attachment and sale of the judgment-debtor's properties. The infirmity pointed out by the lower appellate court is that the execution petition was not accompanied by a schedule of the properties to be sold. So far as the first prayer is concerned, it cannot be said that the application is not in accordance with law. Similarly in respect of the prayer for sale of the properties charged under the decree, the provisions of O. XXI, R.13 of the Civil Procedure Code (Indian) have no application. Even if the description of the properties to be sold had not been given at the foot of the execution petition, the same cannot be said to be one not in accordance with law as there were two other prayers which were in proper form. The view of the lower appellate court on this point is not sustainable. 2nd point. As stated earlier, there was a prayer for the arrest and detention of the judgment-debtor. The judgment-debtor was actually arrested and the Amin surrendered the warrant on the ground that the decree-holder had allowed the judgment-debtor 5 days to pay the decree amount. This was on 13.12.1108. No orders were passed by the court, either on the day or the next. The judgment-debtor was actually arrested and the Amin surrendered the warrant on the ground that the decree-holder had allowed the judgment-debtor 5 days to pay the decree amount. This was on 13.12.1108. No orders were passed by the court, either on the day or the next. On 16.12.1108, the court took the execution petition and passed an order "struck off with costs". It has been pointed out in various decisions that the expression struck off is not a correct one if thereby the execution petition is intended to be dismissed. Treating it as a dismissal of the execution petition, it has to be considered whether such dismissal was a judicial order. There was a prayer for sale of the property charged under the decree. This prayer was not dealt with by the court at all. The proper procedure would have been to post the case for further steps relating to the prayers not yet carried out. There is nothing to indicate that the court was aware of this prayer in the execution petition. So long as this prayer was not dealt with by the court, it cannot be held that the disposal on 16.12.1108 was judicial. This is the direction laid down by this court in the decision reported in 6 D.L.R. (T-C) 366. The dismissal of the execution petition on 16.12.1108 and that without a posting to that date cannot be held to be a judicial disposal of the same and the execution petition has to be deemed pending so that the next execution petition filed beyond a period of six years from the date of dismissal has only to be treated as one to remind the court to take the further steps prayed for already. In this view, it has to be held that the execution is not barred by limitation. 3. In the result the decision of the lower appellate court is reversed and the decision of the learned Munsiff is restored. The second appeal is thus allowed. The respondent did not appear at the time of hearing. There will be no order as to costs. Allowed.