K. Sreedharan Nair vs K.V. Marakkar

M.M. Pareed Pillai, J.—Revision petitioner is the decree-holder in O.S. 163 of 1971 of the Munsiff-Magistrate Court, Ponnani. Respondent (judgment-debtor) is residing within the territorial jurisdiction of the Court of the Munsiff-Magistrate, Pattambi. Petitioner filed E.P. 21 of 1984 before the Munsiff-Magistrate Court, Ponnani and sought for the transmission of the decree to the Munsiff-Magistrate Court, Pattambi. The decree was ordered to be transmitted to the Munsiff Magistrate Court, Pattambi. The transmitted decree was received in the Pattambi Court and thereafter petitioner filed E.P. 35 of 1984 before the Pattambi Court seeking execution of the decree by arrest and detention of the respondent. Petitioner filed E.A. 57 of 1984 in E.P. 35 of 1984 for amendment of column 10 in the E.P. The amendment sought for is to incorporate the contention that in view of the provisions of Kerala Act 35 of 1975 the period from 14-10-1975 to 13-1-1987 has to be excluded in computing the period of limitation. E.P. 35 of 1984 was dismissed as barred by limitation. E.A. 57 of 1984 was also dismissed. It is the admitted case that responded is residing within the territorial jurisdiction. of the Pattambi Court. This necessitated the petitioner to file E.P. 21 of 1984 before the Ponnani Court seeking transmission of the decree to the Munsiff Court, Pattambi. As E.p. 21 of 1984 was filed on 3-1-1984 it was very well within the period of 12 years allowed by law. E.P. 35 of 1984 was filed before the Pattambi Court beyond the period of 12 years from the date of the decree. The question to be considered is whether in a case where a decree is transferred at a time when it was not barred by limitation can the transferee court dismiss the execution petition filed within six months as provided under Rule 277 of the Civil Rules of practice on the ground that 12 years have elapsed when the E.P. was filed in that Court.

Once the decree has been transferred it is open to the decree holder to take necessary steps to execute the decree in the transferee Court. Rule 273 of the Civil Rules of Practice provides the procedure to be adopted for the transmission of the decree for execution to another Court. Rule 276 provides that where a decree of one court has been transmitted for execution to another Court an application for execution shall be made to the latter court. Rule 277 gives the decree holder six months time from the date of receipt of the decree by the transferee Court to apply for execution in that Court. If the decree holder does not take any steps within six months Rule 277 enables the transferee Court to return the decree to the transferor Court.

Contention of the respondent is that though E.P. 21 of 1984 was filed within time before the Court which passed the decree E.P. 35 of 1984 was filed before the transferee Court only after the period of limitation has run out and therefore that E.P. was Tightly dismissed. The decree was passed on 11-1-1972. E.P. 21 of 1984 was filed on 3-1-1984. The Court which passed the decree (transferor Court) ordered transmission of the decree to Pattambi Court on 21-3-1984 and it was received in that Court on 31-3-1984. Admittedly the petitioner filed E.P. 35 of 1984 on 9-4-1984. As E.P. 21 of 1984 was admittedly filed within the period of limitation and that Court allowed the transmission of the decree to the Pattambi Court it has to be held that the petitioner has taken necessary steps to execute the decree within time. As necessary steps for execution were taken by the petitioner within time it cannot be said that the E.P. filed before the transferee Court within time allowed under Rule 277 is liable to be dismissed on the ground that 12 years have elapsed after passing of the decree. The petitioner cannot be found fault with for the delay in transmitting the decree from the transferor Court and its receipt in the transferee Court. The findings of Court below that E.P. 35 of 1984 is barred by limitation is unsustainable. The order of the Court in E.-P. 35 of 1984 is set aside and the E. P. is restored to file. The Court below ought to have allowed the amendment sought for by the petitioner. Truth or falsity of the amended pleadings can only be decided later As sufficient ground were stated in the amendment petition the Court ought to have allowed it. There is no justification in dismissing E.A. 57 of 1984 The order is hereby set aside and the EA. is also restored.

The Civil Revision Petition is allowed. There is no order as to costs.