Judgment :- M.R. Hariharan Nair, J. 1. The challenge in these three revisions by the same set of judgment-debtors is with regard to the finding entered by the execution court (Principal Sub Court, Ernakulam) finding that the E.Ps. for execution of the decrees passed in O.S. Nos. 111/ 78, 112/ 78 and 113/78 of that court are not barred by limitation. The decrees in these three cases were passed on 9.1.79, 10.1.79 and 10.1. 79 respectively and E.P. Nos. 1103,1104 and 1102/92 respectively were filed on 17.9.92,19.9.92 and 24.8.92 respectively. In other words, all the three E.Ps. were filed beyond 12 years from the respective dates of the decree. 2. The execution court which went into the aspect of limitation raised by the judgment-debtors noted that the earlier E.Ps. filed in these cases as E.P. Nos. 449, 397 and 395/80 were all dismissed on 30.3.81 directing the judgment-debtors to continue payment of decree amount in instalments. On that basis the court further held that the contention of the present revision petitioners that the E.Ps. were barred by limitation was not tenable. 3. The learned counsel for the revision petitioners submitted, during hearing, that under Art.136 of the Limitation Act, time runs from the date of decree and not from the date on which the prior E.Ps., if any, were disposed of and that viewed from that perspective the impugned orders are defective. 4. The starting point of limitation of 12 years prescribed in Art.136 is stated as follows: "When the decree or order becomes enforceable or where the decree or any subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods when default in making the payment or delivery in respect of which execution is sought, takes place: Provided that an application for the enforcement or execution of a decree granting a perpetual injunction shall not be subject to any period of limitation". It is to be noted here that with regard to decree or order allowing payment at recurring periods, the starting point is from the date when the default in making payment arises. It is seen from a perusal of the impugned order that when the prior E.Ps. came up for hearing on 30.3.1981, the counsel for the judgment-debtors submitted that they were ready to discharge the decree-debt in instalments.
It is seen from a perusal of the impugned order that when the prior E.Ps. came up for hearing on 30.3.1981, the counsel for the judgment-debtors submitted that they were ready to discharge the decree-debt in instalments. According to the balance statement filed in the three E.Ps., the judgment-debtors had remitted amounts towards decree on 10.6.89, 10.5.89 and 10.9.89 respectively through cheques. The judgment-debtors were then allowed to pay the balance amount also in instalments and the E.Ps. were dismissed. It was when the instalments were defaulted that the new E.Ps. were filed. 5. When the execution of a decree is contingent on the happening of an event the period of limitation cannot begin to run until the contingency happens. It is fundamental principle of law that for the purpose of any particular application, time will run only from the moment at which the applicant first becomes entitled to make it. Where a money decree is passed and the executing court directs the judgment-debtor to pay the amount on a specified date; but he commits default in payment, the starting point of limitation will therefore be from the date of default. Where on part satisfaction, an execution petition is dismissed by consent of the parties and the court records an order allowing time to the judgment-debtor to pay the balance of the decretal debt by a certain date or in instalments the decree-holder will be entitled to file a fresh E.P. only on such default happening. It is to be mentioned here that in such cases the dismissal of the earlier E.P. is not due to any default on the part of the decree-holder or on recording satisfaction of the decree-debt; but only for the convenience of the court ie., to say for statistical purposes or otherwise. Such dismissal cannot therefore be taken as a normal termination of the E.P. 6. Yusuf Sait v. Anantharama Krishna Iyer (1986 KLT 810) is a case where an E.P. was dismissed as execution was stayed by the appellate court. While considering the limitation for a fresh E.P., this Court relied on the decision in Venkanna v. Bangara Raju (AIR 1964 SC 1454) which held the view that where the previous execution petition is closed for statistical purposes in consequence of stay by the appellate court while execution was pending, the decree-holders would not be in a position to proceed with the execution petition.
Nevertheless, the E.P. must be deemed to be pending on the file of the execution court and the subsequent application for execution is only an application to revive and continue the previous application and not really a fresh E.P. This Court, however, held that where fresh execution petition is filed for a relief against the parties or properties different from those in the previous E.P. which was dismissed by a non judicial order or where it asked for relief substantially different from those sought in the earlier E.P. it will have to be construed as a fresh application and not as an application in continuation of the previous one. Only in such a case plea of limitation can be successfully raised. On the other hand, where a dismissal was made only for statistical purposes or in consequence of inability to proceed in consequence of stay or the like the earlier E.P. would be deemed to be pending though it might have been disposed of through an order otherwise than a judicial order. In such case new E.P. would only be for continuation of the proceedings already initiated as per the earlier E.P. By filing such new E.P., the earlier E.P. would stand revived and it is not possible to hold therefore that the E.P. is barred by limitation. 7. In Mary George v. Zacharia Kuriakose (1988 (1) KLT 345) this Court considered a case where an earlier E.P. was dismissed by court on a misconception that the decree-holder had failed to take steps for service of notice and where the subsequent E.P. was filed 12 years from the date of decree. This Court noted that the earlier dismissal being on a misconception and the position being that if the court were apprised of the correct fact, the E.P. would not have been dismissed, the new E.P. can be treated as one in continuance of the earlier one. An E.P., it was held, would be deemed to be pending so long as no final order disposing it of judicially has been passed thereon. Whether an E.P. has been finally disposed of or not would depend upon the facts and circumstances of each case. Where an E.P. is struck off or dropped for no act or default on the part of the decree-holder, there is justification in requesting the court to revive and pursue the proceeding.
Whether an E.P. has been finally disposed of or not would depend upon the facts and circumstances of each case. Where an E.P. is struck off or dropped for no act or default on the part of the decree-holder, there is justification in requesting the court to revive and pursue the proceeding. If, however, the dismissal of the previous execution petition was due to decree-holder' default alone, the principle of revival would have no application. A party whose execution petition is dismissed for default can inform the court that there was no laches on his part and in such a case there is nothing wrong in treating the previous petition as pending and proceeding with execution steps. 8. In view of the legal position aforementioned, the dismissal of the three E.Ps. involved in the present case as per the orders dated 30.3.1981 was only for statistical purposes and not due to any fault of the decree-holder. As the new E.Ps. filed in these cases as E.P.Nos.1103,1104 and 1102/92 are actually for revival of the earlier E.Ps., the earlier E.Ps. must be deemed to be pending. 9. Viewed from this perspective, the impugned orders do not suffer from any illegality or irregularity or impropriety. The Civil Revision Petitions are without any merit and they are dismissed.