Subramoniam Kumaran v. Esakkimadan Arumughom — 1955 DIGILAW 140 (KER)

Judgment :- 1. Additional decree-holders 2 and 3 are the appellants in this Second Appeal. The Second Appeal relates to an order in execution. The question for decision is whether the execution of the decree is barred by limitation. The decree is one for redemption. The appellate decree was passed on 1.4.1108. The first execution petition was filed on 26.5.1112. A copy of the decree was not produced along with the execution petition. On 28.5.1112 the court passed an order to the following effect: "Decree not produced Rejected". The present execution petition was filed on 9.12.1121 more than 12 years after the date of the decree. The 4th defendant contended that the execution petition was barred by limitation. According to the decree-holders the execution petition dated 26.5.1112 has not been judicially disposed of and the execution petition dated 9.12.1121 should be regarded as one in continuation of that petition. The execution court accepted the contention of the decree-holders and held that execution was not barred by limitation. In appeal filed by the 4th defendant, the District Court held that the execution petition dated 26.5.1112 has been judicially disposed of, that the execution petition dated 9.12.1121 was a fresh execution petition and that it was barred by limitation. 2. The two questions that arise for consideration in the Second Appeal are:- (i) whether the execution petition dated 26.5.1112 which was filed without a copy of the decree was one in accordance with law, and (ii) whether the disposal of that execution petition on 28.5.1112 was a judicial disposal or only a "ministerial" disposal. The Code of Civil Procedure that was in force when the execution petition dated 26.5.1112 was presented was the Travancore Code of Civil Procedure, Act VIII of 1100. 0.21 R.9(2) of that Code prescribed the requirements of a written application for execution of a decree. It was not stated in that sub-rule that a copy of the decree sought to be executed should be produced along with the execution petition. Sub-r. (3) of R.9 provides as follows: "The court to which an application is made under Sub-r. (2) may require the applicant to produce a certified copy of the decree". The same is the provision in O.21 R. 11(3) of the Indian Code of Civil Procedure. Sub-r. (3) of R.9 provides as follows: "The court to which an application is made under Sub-r. (2) may require the applicant to produce a certified copy of the decree". The same is the provision in O.21 R. 11(3) of the Indian Code of Civil Procedure. It is clear from this that for an execution petition to be in accordance with law it is not necessary that it should be accompanied by a copy of the decree sought to be executed. The applicant is bound to produce a copy of the decree only if the court requires him to produce it. 3. R. 204 of the Travancore Civil Court's Guide which was in force when the execution petition was presented required that a copy of the decree should be produced along with the execution petition. It is therefore necessary to consider whether non-compliance with that rule would make the execution petition one not in accordance with law. This question was considered by the Travancore High Court in Raman v. Narayana Pillai (18 TLJ 1). It was held in that case that non-compliance with R.204 of the Civil Court's Guide would not by itself make an execution petition one not in accordance with law. Following the decision of the Madras High Court in Pachayappa Asari v. Poojali Seenan (28 Mad. 557) and that of the Bombay High Court in Ramachandra Sadashiv v. Lekshman Sadashiv (31 Bom.162) Parameswara Menon and Bhoothalingom Iyer, JJ. held that R. 204 of the Civil Court's Guide only prescribed a condition precedent for further action being taken by the court on the execution petition and that non-compliance with the rule would not make the execution petition one not in accordance with law. Referring to a similar provision in the Madras Civil Rules of Practice. Subramonia Iyer, Officiating Chief Justice and Sankaran Nair, J. observed in (28 Madras 557): "The defect relied on has reference to an extraneous circumstance, the failure to produce a copy of the decree sought to be executed. Referring to a similar provision in the Madras Civil Rules of Practice. Subramonia Iyer, Officiating Chief Justice and Sankaran Nair, J. observed in (28 Madras 557): "The defect relied on has reference to an extraneous circumstance, the failure to produce a copy of the decree sought to be executed. We do not think that this ought to be held to detract from the application being in accordance with law within the meaning of the provision in question though it might furnish a ground for the court not proceeding further with the application until the defect is removed by the production of the copy so as to enable the court to satisfy itself as to the terms of the decree to be executed". The Bombay Civil Rules of Practice also contained a similar provision. The effect of that provision was considered by the Bombay High Court in Ramachandra v. Lekshman (31 Bom.162) Batty, J. observed: "We think that the proper view to take of the rule that requires a Dharkhast to be accompanied by a copy of the decree is not that it prescribes the essentials which an application for execution must contain and which are necessary to constitute the application itself an application in accordance with law, but that it requires something further besides the application itself, an accompaniment extraneous to the application as a condition precedent to further action by the court executing the decree". 4. The same view was taken by the Travancore High Court in Yohannan v. Kochu Pillai Kurup (21 TLJ 985) and in Avukkaru Pathummal v. Raghavan Nambiar (18 TLT 718). A contrary view taken in Sirkar v. Padmanabha Iyer (31 TLJ 274) was not followed in 18 TLT 718. The view taken in 18 TLJ 1, 21 TLJ 985 and 18 TLT 718 was approved by a Full Bench of the Travancore High Court in Mathai v. Joseph (1946 T.L.R.11). 31 TLJ 274 was distinguished on the ground that the dismissal of the execution petition in that case was for non-compliance with the order of the court to cure the defect. In Arunachala v. Muthu Sadasiva (A.I.R. 1950 Mad. 31 TLJ 274 was distinguished on the ground that the dismissal of the execution petition in that case was for non-compliance with the order of the court to cure the defect. In Arunachala v. Muthu Sadasiva (A.I.R. 1950 Mad. 261) the Madras High Court went to the extent of holding that R. 142 of the Madras Civil Rules of Practice in so far as it required the decree-holder to produce along with the first execution petition a certified copy of the decree was inconsistent with 0.21 R.11, sub-rr. 2 and 3, Code of Civil Procedure and that it should give way to the provision contained in those sub-rules. It is not necessary to decide in this case whether R. 204 of the Travancore Civil Court's Guide was inconsistent with 0.21 R. 9(3) of the Travancore Code of Civil Procedure and therefore ultra vires of the rule making powers of the High Court. The opinion expressed by Parameswara Menon, J. in 18 TLJ 1 was that the rule was not ultra vires of the powers of the High Court, since the rule referred to something extraneous to the form of the execution application which alone was prescribed by the Code of Civil Procedure. Whatever that may be, there can be no doubt that non-compliance with the rule will not make an execution application satisfying all the requirements of 0.21 R. 9(2) (Travancore Code of Civil Procedure) one not in accordance with law. I therefore hold that the execution petition dated 26.5.1112 was one in accordance with law. 5. The second question for decision is whether the dismissal of the execution petition on 28.5.1112 would amount to a judicial disposal of the petition or whether it was only a "ministerial" disposal. The learned District Judge held that it was a judicial disposal on the strength of the rulings in Muhammathu Ummal v. Mohammed Ummal (A.I.R. 1951 T-C. 179) and Kunjunni v. Parur Bank Ltd. (1952 KLT 200). In the first case, on the execution petition filed by the decree-holder on 26.7.1113 the court passed an order on 27.7.1113 for the issue of notice to the judgment-debtors under 0.21 R.20, Code of Civil Procedure. Since the process fee required for the issue of notice was not paid by the decree holder the execution petition was dismissed on 3.8.1113. The execution petition was not posted to that date for the payment of process fee. Since the process fee required for the issue of notice was not paid by the decree holder the execution petition was dismissed on 3.8.1113. The execution petition was not posted to that date for the payment of process fee. It was contended for the decree-holder that the order dated 27.7.1113 was one passed without notice to him and that the dismissal of the execution petition on 3.8.1113 to which date the petition was not posted was only a ministerial order. Both these contentions were repelled by this Court. It was held that under R. 765 of the Travancore Civil Court's Guide the execution court could pass orders on an execution petition the day after the presentation of the execution petition, and that it could not therefore be said that the order dated 27.7.1113 was one passed without notice to the decree- holder. As for the second contention, it was held that under R. 207 of the Civil Court's Guide when an order for the issue of notice to the opposite side was passed by the court the decree-holder was bound to pay the requisite process fee within three days from the date of the order or within such further time as might be granted by the court. It was therefore held that the decree-holder was bound to pay process fee within three days from the date of the order and that the dismissal of the execution petition on account of the default of the decree-holder to pay the process fee was a judicial disposal of the petition. The learned judges followed the decision of the Travancore High Court in Thanuperumal Pillai v. Thanumalayan (1948 T.L.R. 237) in which it was held as follows: "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 Court's Guide, an order passed on the date of the expiry of the period prescribed, or reasonably promptly, would be a judicial order". I do not think that this decision has any application to the present case. It is not contended for the appellants in this case that the order dated 28.5.1122 is not a judicial order by reason of the fact that it was not passed on the day on which the execution petition was presented. I do not think that this decision has any application to the present case. It is not contended for the appellants in this case that the order dated 28.5.1122 is not a judicial order by reason of the fact that it was not passed on the day on which the execution petition was presented. Their case is that so long as there was no order by the court requiring the decree-holder to produce a copy of the decree, it cannot be said that the execution petition was dismissed on account of the default of the decree-holder. In A.I.R. 1951 T-C.179 the learned judges proceeded on the basis that there was default on the part of the decree-holder in not paying the process fee required for the issue of notice to the judgment-debtors within the time prescribed by R. 207 of the Civil Court's Guide. 6. In 1952 KLT 200 the execution petition was presented on 19.10.1112 and the court passed an order on 20.10.1112 directing the decree-holder to produce a statement of accounts and to pay process fee for the issue of notice and posted the case for this purpose to 29.10.1112. The decree-holder did not comply with the direction of the court and the court dismissed the execution petition on 30.10.1112. It was held that under R. 675 of the Travancore Civil Court's Guide, the court could pass orders on an execution petition the day after it was presented, that the decree-holder should be deemed to have notice of the order of the court, that the dismissal of the execution petition on 30.10.1112 was for default on the part of the decree-holder in complying with the order of the court and that it was therefore a judicial order. This decision also has no application to the facts of the present case. 7. The question for decision in this case is whether the dismissal of the execution petition on 28.5.1112 was for any default on the part of the decree-holder. As stated already, the decree-holder was not bound to produce a copy of the decree along with his execution petition. Under 0.21 R.9(3) (Travancore Code of Civil Procedure) it is only when he is required by the court to produce a copy of the decree that he is bound to produce one. There was no order by the court requiring him to produce a copy of the decree. Under 0.21 R.9(3) (Travancore Code of Civil Procedure) it is only when he is required by the court to produce a copy of the decree that he is bound to produce one. There was no order by the court requiring him to produce a copy of the decree. In the circumstances it cannot be said that there was default on his part in not producing the copy of the decree and that the execution petition was dismissed for his default. 8. It was, however, argued for the respondent that under 0.21, R.15(1) (Travancore Code of Civil Procedure) as it existed at the time when the execution petition was presented the court could reject an execution petition not satisfying the requirements of law without posting it to a particular date for curing the defect. O.21, R.15(1) of the Code before it was amended in 1120 read as follows: "On receiving an application for the execution of a decree as provided by R. 9, Sub-r. (2) the Court shall ascertain whether such of the requirements of Rr. 9 to 12 as may be applicable to the case have been complied with; and, if they have not been complied with the Court may reject the application or may allow the defect to be remedied then and there or within a time to be fixed by it". The sub-rule was amended in 1120 by substituting the following words for the latter part of the sub-rule, viz., "the court shall allow the defect to be remedied then and there or within a time to be fixed by it. If the defect is not remedied within the time fixed, the Court may reject the application". 9. It was contended for the respondent that before the sub-rule was amended, the court could reject an execution petition which did not satisfy the requirements of law without giving an opportunity to the decree-holder to remedy the defect. But under the sub-rule it was only in cases in which the requirements of Rr. 9 to 12 of O.21 have not been complied with that the court could reject the execution petition. The rule that was applicable to the execution petition in this case was only R. 9. As stated already, R. 9(3) did not require the production of the copy of the decree along with the execution petition. 9 to 12 of O.21 have not been complied with that the court could reject the execution petition. The rule that was applicable to the execution petition in this case was only R. 9. As stated already, R. 9(3) did not require the production of the copy of the decree along with the execution petition. Under that sub-rule the court was only given the power to require the decree-holder to produce a copy of the decree. Since the court did not require the decree-holder to produce a copy of the decree in this case it cannot be said that the requirements of R.9 have not been complied with by the decree-holder. The court had, therefore, no power under R.15(1) to reject the execution petition on the ground that a copy of the decree was not produced by the decree-holder along with the execution petition. 10. Learned counsel for the respondent further argued that even if the court had no power to reject the execution petition on the ground that a copy of the decree was not produced by the decree-holder, the order rejecting the execution petition does not cease to be a judicial order for that reason and that it is only a wrong which ought to have been set right by means of a review petition or appeal. Learned counsel relied on the rulings in Krishna Panicker v. Kunchu (1953 KLT 670 F.B.), Krishna Pai v. Thrinetran Valiya Thampurakkal (1954 KLT 434) and Krishnan v. Subramonia Iyer (1954 KLT 883). In the first case, on the execution petition filed by the decree-holder the court ordered notice to the attaching decree-holders and for default of the decree-holder to pay the necessary process fee the execution petition was dismissed by the court. In fact there was no attachment of the decree in the case and it was by a mistake that the court ordered issue of notice to the so called attaching decree-holders. It was contended for the decree-holder that the order dismissing the execution petition under such circumstances could not be regarded as a judicial order. This contention was not accepted by the Full Bench. Koshi, C.J. observed: "The Court made a mistake and it is true that it was a sad mistake, but a Court has jurisdiction to decide wrong as well as right. This contention was not accepted by the Full Bench. Koshi, C.J. observed: "The Court made a mistake and it is true that it was a sad mistake, but a Court has jurisdiction to decide wrong as well as right. If it decided wrong the wronged party can only take a course prescribed by law for setting matters right, and if that course is not taken, the decision, however wrong, cannot be disturbed - per Lord Hobhouse in Malkarjan v. Narhari (25 Bom. 337 at 347 P.C.)". But in that case the execution petition was rejected for the default of the decree-holder in complying with the order of the court requiring him to take out notices to the attaching decree-holders even though that order was a wrong order. It was on the ground that there was default on the part of the decree-holders that the Full Bench held that the order dismissing the execution petition was a judicial order. Koshi, C.J. said: "The first requisite to attract the application of the reviver theory in relation to execution applications is that the previous application should not have been dismissed for any fault or default of the decree-holder. Here it was not contended that the words "struck off" indicated that the disposal was only for what is commonly called ministerial or statistical purpose. What was contended was that it was a wrong order passed by a mistake of the Court that brought about the dismissal and that it was almost axiomatic that a litigant cannot be made to suffer for the Court's mistake. On this hypothesis it was further argued that the dismissal should be deemed to be void and that that execution petition should be treated as in law pending when the present application was filed on 30.12.1121. No doubt it is true that there was no attachment of the decree and the Court gave the direction to take out notices to the so-called attaching decree-holders under a mistaken impression. This was one of the points remitted to the execution Court for a finding and that Court's answer is to the effect that the decree under execution was not under attachment at any time. This was one of the points remitted to the execution Court for a finding and that Court's answer is to the effect that the decree under execution was not under attachment at any time. Before the petition was dismissed the appellant was, however, given an opportunity to satisfy the Court that it was unnecessary to issue notices to the decree-holders in the two decrees in execution of which the attachments were said to have been issued, but the Court was apparently not satisfied with the cause shown and accordingly repeated its order to take out notices to them. For non-compliance of that order it was that the execution petition was "struck off". We are at one with the lower Court in its view that that order was made on account of the appellant's default and that it amounted to a judicial determination of the petition by the Court that it cannot be proceeded with unless notice of the execution was given to these decree-holders". It will be seen from this that the basis of the decision was that there was default on the part of the decree-holder to comply with the order of the court even though the order was a wrong order. In the present case it cannot be said that there was any default on the part of the decree-holder since he was not bound to produce a copy of the decree along with the execution petition and there was no order of the court requiring him to produce a copy. 11. In 1954 KLT 434 when the assignee of the decree applied for execution, notice under 0.21 R.16 was ordered to the original decree-holder and the judgment-debtors. Notices issued to them were served on them and they did not file any objection to the assignee decree-holder executing the decree. Subsequently notice under 0.21 R.22 also was issued. The execution petition was afterwards dismissed. When the assignee decree-holder applied again for execution of the decree, the court ordered that he should get himself impleaded as additional decree-holder. An application was made in compliance with this order and notice was ordered on that application to the original decree-holder. The notice issued was returned unserved and on account of the default of the assignee decree holder to pay the requisite process fee for the issue of fresh notice the execution petition was dismissed. An application was made in compliance with this order and notice was ordered on that application to the original decree-holder. The notice issued was returned unserved and on account of the default of the assignee decree holder to pay the requisite process fee for the issue of fresh notice the execution petition was dismissed. It was contended for the assignee decree holder that since notice under O.21 R.16 had already been issued to the original decree-holder and he was allowed to execute the decree after the issue of such notice, it was not necessary to issue fresh notice to the original decree-holder, that the order for the issue of fresh notice was wrong and that the dismissal of the execution petition for non-compliance with that order could not be regarded as a judicial disposal of the execution petition. This contention was not accepted by the court. It was held on the authority of 1953 KLT 670 that although the order for the issue of fresh notice to the original decree-holder was wrong, so long as there was default on the part of the assignee-decree holder to comply with the order of the court it could not be said that the disposal of the execution petition was not a judicial disposal. 12. In 1954 KLT 883 the execution petition filed on 22.11.1115 was dismissed on 27.6.1119 on account of the default of the decree-holder to produce a copy of the amended decree. The execution petition was posted to that date for the production of the copy of the amended decree. It was contended by the decree-holder that the amendment of the decree was allowed only on 21.6.1112, that it was therefore impossible for him to comply with the direction of the court to produce a copy of the amended decree on 27.6.1119 and that therefore the order dismissing the execution petition was not a judicial order. The contention was repelled by the court. It was held that the order was a judicial order and that the remedy of the decree-holder was to get it vacated by appropriate proceedings. In this case also there was default on the part of the decree-holder to comply with the order of the court, and the execution petition was dismissed on account of that default. It was held that the order was a judicial order and that the remedy of the decree-holder was to get it vacated by appropriate proceedings. In this case also there was default on the part of the decree-holder to comply with the order of the court, and the execution petition was dismissed on account of that default. In the present case, as stated already, it cannot be said that the execution petition was dismissed for any default on the part of the decree-holder. The court had no jurisdiction under 0.21 R.15(1) (Travancore Code of Civil Procedure) to reject an execution petition on the ground that a copy of the decree was not produced along with it. The order in this case was not a mere wrong order. It was an order passed without jurisdiction. In the circumstances, I am unable to accept the contention that the order dated 28.5.1112 dismissing the execution petition of 26.5.1112 was a judicial order. It can be regarded only as a "ministerial" order and the execution petition must be deemed to be still pending. The execution petition dated 9.12.1121 is therefore only one in continuation of that execution petition. 13. In the result I set aside the order of the lower appellate court and restore that of the execution court. The Second Appeal is allowed with costs throughout. Allowed.