Chaithu Mohammed Asanar Pillai vs N. Abdur Rahiman Sahib

T.K. Joseph, J.—This Second Appeal arises out of proceedings in execution of a decree for money. The decree was passed on 13-6-1113. An application for execution filed on 29-5-1950 corresponding to 15-10-1125 was held by the execution Court to be barred under S. 48, Civil P.C. On appeal by the decree-holder, the decree was reversed. The defendant has preferred this Second Appeal from the decree of the lower appellate court which held that execution was not barred by limitation.

The question whether execution is barred or not depends on whether a previous execution petition dated 2-4-1124 which was amended on 30-5-1124 as per an order of the court was judicially disposed of. This execution petition contained prayers for the arrest and detention of the judgment-debtor, for the sale of the properties charged under the decree and for attachment and sale of other properties of the judgment-debtor. Notice under R. 20 of O. 21 corresponding to R. 22 of O. 21, Indian Civil P.C., was ordered on 2-6-1124.

The judgment-debtor filed objections on 23-6-1124 stating that the whole decree bad been discharged. These objections were dismissed on 8-7-1124. The case was thereafter adjourned for taking further steps and on 3-12-1124 the decree-holder remitted the necessary amount for issuing notice to the judgment-debtor and for his arrest and detention. Notice under O. 21. R. 44 was ordered and the notice was made returnable on 13-1-1125.

The entries in the diary show that this notice was not sent to the judgment-debtor as he was then at Ernakulam. On 13-1-1125 the execution petition was posted to 29-1-1125 for further steps. The court did not sit on that day and the execution petition was posted to 21-2-1125 for further steps. Thereafter it was adjourned to 29-2-1125 for the same purpose and it was dismissed on that day on the ground that further steps were not taken.

The question for decision is whether the order of dismissal dated 29-2-1125 amounts to a judicial disposal of the execution petition. It has to be mentioned that there is a note by the execution clerk on the back of the execution petition that the notice was not sent to the judgment-debtor as he was then at Ernakulam. This entry is clearly wrong because it is seen from the records that notice was actually sent on 17-12-1124 and that it was returned by the Registrar of the High Court with an endorsement on the notice made by a process-server attached to the High Court that the same could not be served as the judgment-debtor was not at Ernakulam.

This reached the execution court on 7-2-1125. It was contended by the learned counsel for the decree-holder-respondent that the respondent was not at fault in not taking further steps as he had done everything necessary for issuing the notice and that the entry in the diary was to the effect that the notice was not sent as the judgment-debtor was then at Ernakulam. The argument was that the Court was clearly in the wrong in ordering him to take further steps so long as the first prayer in the execution petition was not exhausted.

The Question whether the order dismissing the execution petition was a judicial one does not depend on whether the order the non-compliance of which caused such dismissal was correct or not. If it was wrong, it was open to the decree-holder to point out that fact before the dismissal of the execution petition. The orders for taking further steps were passed on dates on which the execution petition was posted and the decree-holder must be presumed to have had knowledge of such orders.

It was open for the decree-holder to get the dismissal set aside by preferring an appeal or review. This also was not done. As pointed out by a Full Bench of this Court in - ''Krishna Panicker v. Kunchu'', AIR 1954 Trav-C 1 (A), the fact that the ground of dismissal was wrong would not absolve the decree-holder of his duty to get rid of the order of dismissal. The order of dismissal was passed with notice to the decree-holder and it was allowed to become final. It was argued that the Full Bench decision was not applicable to the facts of this case as there was no specific order for the issue of fresh notice to the judgment-debtor.

This argument was accepted by the lower appellate Court. The distinction sought to be made is not real. Further steps were ordered to be taken, possibly because the judgment-debtor was at that time employed outside the jurisdiction of the execution Court and as such his arrest and detention by that Court was impracticable. The fact remains that on a date on which the case was posted the Court passed an order directing him to take further steps and as the said order was not complied with, the execution petition was dismissed.

It cannot therefore be contended that the dismissal was only ministerial and that the later execution petition was only one in continuation of the earlier one.

In the result the Second Appeal is allowed reversing the decision of the lower appellate court and restoring that of the learned Munsiff. There will he no order as to costs.