K. R. PRASADA RAO, J. ( 1 ) THIS revision petition is filed by the judgment-debtor Nos. 2 to 4 in Ex. Case No. 96/96, on the file of the learned Civil Judge (Sr. Division), Madikere, against the order dated 14-10-1998 passed by the said Court overruling their objections and holding that the execution petition is not barred by limitation. ( 2 ) ). Respondent No. 1-Vijaya Bank filed the suit O. S. 1/82, on the file of the Civil Judge, Kodagu, Madikeri, against the revision petitioners, who are defendants 2 to 4 and respondent No. 2, who is defendant No. 1, and obtained a preliminary decree on 8-4-1982 in the said suit for recovery of the suit amount by the sale of mortgaged property, final decree was passed in the said suit on 6-9-1982. Thereafter, the first respondent filed Execution Case No. 68/91, on the file of the Court of Civil Judge, Kodagu, Madikere, for executing the decree. The said execution petition came to be dismissed on 17-11-1993. Thereafter, the 1st respondent filed execution case once again - Ex. 96/96 to execute the said decree. After service of notice, the petitioners contended that the execution petition filed by the 1st respondent is barred by limitation since it was filed beyond 12 years from 6-9-1982, the date on which the final decree was passed. After hearing the arguments advanced by both sides, the lower Court rejected the said contention of the revision petitioners-judgment-debtors 2 to 4 and issued sale notice in respect of the mortgaged properties. Aggrieved by the said order passed, the judgment-debtors 2 to 4 filed the present revision petition. ( 3 ) I have heard the arguments advanced by the learned counsel on both sides. ( 4 ) IT is contended by the learned counsel for the revision petitioners that since the earlier execution Petition No. 68/91 has been dismissed for non-prosecution, the lower Court was not justified in holding that the subsequent execution Petition No. 96/96 filed by the 1st respondent amounts to revival of the earlier execution proceedings and that it is a continuation of the execution proceedings of 1991. Per contra, the learned counsel appearing for the 1st respondent-decree-holder contended that the earlier execution Petition No. 68/91 was dismissed by the Court under a mistaken impression that the process fee has not been paid for issue of sale notice, though there is a note in the order sheet that process fee has been paid and so the subsequent petition filed is rightly construed by the lower Court as the one for revival of the former execution proceedings. It is further contended by him that since the present execution proceedings - Ex. 96/96 were filed within 12 years from the date of dismissal of the earlier execution case the prior execution petition is not barred by limitation and the lower Court has rightly overruled the objections raised by the revision petitioners. ( 5 ) I have carefully gone through the impugned order passed by the Executing Court. ( 6 ) IT is observed by the Executing Court that in the previous execution Case No. 68/91 the Court ordered for issue of sale notice on 7-10-1993 to the judgment-debtors by registered post with acknowledgement due returnable on 17-11-1993 since the decree-holder has taken steps. It is further observed that on 17-11-1993 the Court has erroneously dismissed the execution petition observing that the process fee has not been paid and no representation has been made on behalf of the decree-holder. The lower Court, therefore, came to the conclusion that the order of dismissal of execution Petition No. 68/91 passed on 17-11-1993 does not amount to final order and the decree-holder is entitled to seek for revival of previous execution proceedings by filing the subsequent execution petition which is numbered as Ex. 96/96. It is also pointed by the lower Court that in fact the decree-holder has clearly mentioned in the second execution petition No. 96/96 that it was filed by way of revival of the earlier execution petition which was erroneously dismissed by the Court. Thus, it is clear from the above facts that for issue of sale notice, the decree-holder has taken steps by paying the process fee on 7-10-1993 itself and in spite of it on 17-11-1993 the said execution petition No. 68/91 was erroneously dismissed by the lower Court under a mistaken impression that the process fee has not been paid. Thus, it is clear from the above facts that for issue of sale notice, the decree-holder has taken steps by paying the process fee on 7-10-1993 itself and in spite of it on 17-11-1993 the said execution petition No. 68/91 was erroneously dismissed by the lower Court under a mistaken impression that the process fee has not been paid. As rightly pointed by the lower Court, the presence of the decree-holder was not necessary on 17-11-1993 when the decree-holder has also paid the process fee and the Court failed to issue the sale notice after payment of the said process fee. In a decision reported in Bala Tripura Sundaramma v. Abdul Khader, AIR 1983 Mad 418 (FB) it was held that :-"the test to be applied for the principle of revival is that the interruption to the execution proceedings is due to an intermediate order which was afterwards set aside or the execution proceedings must have been rendered infructuous by some such obstacle and the interruption to the execution should not have been occasioned by any fault or laches of the applicant. Where an execution petition can be deemed to have been not finally disposed of and can be treated as still pending in the eye of law, the subsequent execution application may be treated as one for the continuance of the former one. Where the former execution application is dismissed finally, but for some reason (not due to any default or neglect on the part of the applicant) which subsequently turns out to be untenable, the latter execution application would be deemed to be one for a revival of the former one. "in the instant case, as it is now found that the previous execution petition was dismissed not due to any default or neglect on the part of the decree-holder and it was dismissed by the Court under an erroneous impression that the process fee for issue of sale notice has not been paid, the present execution Petition No. 96/96 filed by the decree-holder would be deemed to be one for revival of the former execution proceedings. The question whether or not an execution petition has been finally disposed of, so as to be incapable of being revived or continued is a question of fact which has to be determined having regard to the facts and circumstances of the particular case. The question whether or not an execution petition has been finally disposed of, so as to be incapable of being revived or continued is a question of fact which has to be determined having regard to the facts and circumstances of the particular case. The form of the order passed on the application is not sufficient to determine the question. The question is really one of substance and not of form. In order that the execution proceedings may be held to have been finally disposed of, the Court should pass an order with knowledge and with a definite intention of putting an end to the execution proceedings. In the instant case, as it is found that the Court dismissed the previous execution proceedings under a mistaken impression that the process fee has not been paid though process fee has, in fact, been paid, it cannot be said that the Court has finally disposed of the previous execution proceedings with knowledge and with definite intention of putting an end to the execution proceedings. So, it must be taken that the previous execution case is still pending and has not been terminated, since the earlier execution petition has been closed erroneously though the decree-holder is free from a blame, the decree-holder has not a right to have that old execution petition revived and proceeded with from the stage immediately before the error, and the subsequent execution petition filed by him is only to be treated as reminder to the Court to revive the old execution petition which was irregularly and erroneously closed by it and no question of limitation is involved. I, therefore, agree with the view taken by the Executing Court that the subsequent execution Petition No. 96/96 filed by the decree-holder amounts to revival of the previous execution proceedings and the question of limitation does not arise in respect of the present execution proceedings. As the previous execution proceedings were filed within 12 years from the date of passing the final decree and as the present execution proceedings are filed only to revive the earlier execution proceedings and to proceed with from the stage immediately before passing the order of dismissal of the earlier execution proceedings, it cannot be said that the present execution proceedings are barred by limitation. ( 7 ) IN a decision of this Court reported in Bapusaheb v. Lingappa, 1967 (1) Mys LJ 366, it was held that :-"a decree is revived if there is a determination by a Court that the decree is still capable of execution and the decree-holder is entitled to enforce it. If that determination whether it is express or by necessary implication, is a valid determination and is made after notice to the opposite side, there is a revivor within Art. 183 Limitation Act. If there was a revivor, the decree-holder becomes entitled to present an execution application again within 12 years from that date. Neither Art. 182, nor S. 48 CPC. , has application to a case governed by Art. 183. The effect of the revivor is to clothe the decree holder with the right to execute the decree in every manner allowed by law. His right is not confined to execution in the same manner in which it was sought to be executed in the earlier execution petition. "in the instant case, as it is found that the present execution petition filed is only to revive the earlier execution proceedings which were erroneously dismissed earlier, the decree-holder is entitled to present an execution within 12 years from the date of dismissal of their earlier execution proceedings. So, Art. 136 of the New Limitation Act, 1963 has no application to the present execution proceedings and the period of 12 years cannot be counted in respect of the present execution proceedings from the date on which the final decree was passed. ( 8 ) THE learned Counsel for the revision petitioners relied upon a decision of this Court reported in State Bank of Travancore v. M. R. Maheshwaraiah, AIR 1971 Mysore 113, wherein it was held that :-"where the execution petition of 1962 was dismissed for non-payment of fee for attachment of moveables even after four adjournments, decree-holder neither filed petition before Court nor filed appeal to get order of dismissal set aside. Execution petition held to have been dismissed for default of decree holder and order of dismissal became final. Execution proceedings being validly terminated by proper judicial order, it could not be revived by fresh application in 1964 which is beyond 12 years from the date of decree. "but the above decision is not applicable to the facts of the present case. Execution proceedings being validly terminated by proper judicial order, it could not be revived by fresh application in 1964 which is beyond 12 years from the date of decree. "but the above decision is not applicable to the facts of the present case. Since it is found that the previous execution petition was dismissed under a mistaken impression by the Court that the process fee has not been paid for issue of sale notice though, in fact, the decree holder has paid the process fee which is available on record. So, the said order of dismissal of the previous execution by the court cannot be considered as a final order, finally terminating the execution proceedings. The learned Counsel for the petitioners has also relied upon a decision reported in P. V. Rama Reddy v. Buchanna, AIR 1963 AP 1 , wherein it was held that :-"where once an execution petition is dismissed for default of the decree-holder, it terminates the execution proceedings and a subsequent application for the same purpose will constitute a fresh application within meaning of S. 48. There is no question of continuing or reviving a petition which has been finally and properly dismissed. "placing reliance on the above decision, it is contended by the learned Counsel for the revision petitioners that in the present case, also since the previous execution was dismissed for default of the decree-holder, the said order terminated the execution proceedings and the present execution petition filed for the same purpose will constitute a fresh application and there is no question of continuing or reviving the previous execution proceedings which have been finally and properly dismissed. But, I find no merit in this contention since it is found that the presence of the decree-holder was not necessary on the date on which the previous execution petition was dismissed by the Court, as it is found that the decree-holder has paid the process fee for issue of sale notice which has not been noticed by the Executing Court. So, the above decision is also not applicable to the facts of the present case. So, the above decision is also not applicable to the facts of the present case. ( 9 ) FOR all the above reasons, I find that the impugned order passed by the Executing Court that the execution petition No. 96/96 filed by the 1st respondent decree holder amounts to revival of the previous execution petition No. 68/91 and that the execution petition is not barred by limitation is correct. ( 10 ) THIS revision petition is, therefore, dismissed. No costs. --- *** --- .