Mohammathu Ummal vs Mohammad Ummal Pathumal and Another

The assignee decree-holder has filed this appeal against the order of the lower appellate Court holding that E. P. No. 972 of 1122 dated 15.11.1122 is barred by limitation. The decree in this case was passed on 27-4-1105. The present execution petition dated 16-11-1122 having been filed long after the expiry of 12 years from the date of the decree, is prima facie barred by limitation. The assignee decree-holder seeks to get over this bar by contending that the two prior execution petitions which were filed within time have not been judicially disposed of and as such the present petition must be deemed to be a revival and continuation of the earlier petitions.

The first execution petition was filed on 27-4-1108 and it was struck off the file on 14-7-1108. The next exe3ution petition was filed on 26-7-1113. On the next day the Court passed an order for the issue of notice under Order 21, Rule 20, CPC to the judgment-debtors. Since the required process fee was not paid by the decree-holder, the execution petition was dismissed on 3-8-1113. The learned advocate for the Appellant argue that the order passed on 3-8-1113 to which date the petition was not expressly posted was only a ministerial order and not a judicial order. It is also contended that since there was no posting of the petition to 27-7-1113, the order passed on that day for the issue of notice under Order 21 , Rule 20 cannot be said to be a proper order passed with notice to the decree-holder. When that order was passed, the Civil Courts'' Guide of the year 1099 (of Trivancore) was in force. Rule 765 of that Guide was to the effect that the Presiding Officer''s order on the execution petition should be obtained not later than the next Court day after the presentation of the execution petition. As already stated, the second execution petition was presented on 26-7-1113 and as such the order passed on it on the very next day was strictly in conformity with Rule 765, Civil Courts'' Guide. Hence there is no point in the Appellant''s contention that the said order was improper and was passed without notice to the decree-holder. Since the order was passed on a day fixed by the rule of procedure, the decree-holder is expected to know of such an order.

The next objection urged on behalf of the Appellant is that no specific date was fixed by the order to the payment of the process fee required for the issue of notice. This objection also has no force in view of the provision contained in Rule 207, Civil Courts'' Guide. That Rule prescribed that when the order for notice to the opposite side is passed by the Court on the execution petition, the decree-holder has to pay the required process fee within three days from the date of that order or within such further period as may be fixed by the Court. Since no larger period was specified by the Court in the present instance, the decree-holder had to pay the process fee within the normal period of three days allowed by Rule 207. He defaulted to pay the process fee within such period; and it was on account of such default that the execution petition was dismissed on 3-8-1113. The order of dismissal of the execution petition passed under such circumstances is clearly a judicial order. The ruling reported in Thanuperumal Pillai v. Thanumalayan 1948 T. L. R. 237 is in support of this position. There it has been laid down that

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 Courts'' Guide, an order passed on the date of the expiry of the period prescribed, or reasonably promptly, would be a judicial order.

Another point urged on behalf of the Appellant is that even if the second execution petition is taken to have been judicially disposed of by the order dated 3-8-1113, the first execution petition filed on 27-4-1108 must be deemed to be pending and that the present execution petition must be treated as a revival and continuation of that execution petition. Assuming that the first execution petition has not been judicially disposed of, it must be taken to have been revived and continued by the second execution petition filed on 26-7-1113, It follows, therefore, that the judicial disposal of the second execution petition has effectively disposed of the first execution petition also. This view has the support of the ruling reported in Kuruvila v. Kocheeppen 1946 T. L.R. 196. It is contended on behalf of the Appellant that in the first execution petition there was a prayer for the attachment of the judgment debtors properties and that such a prayer was absent in the second execution petition. This by itself cannot be a ground for holding that the two execution petitions were different in their character and scope. Since no schedule of properties had been filed along with the first execution petition, the prayer for attachment contained therein cannot be taken to have been an effective relief claimed by the decree holder. By the omission of such a prayer in the second execution petition, it has to be taken that a relief in that direction was abandoned by the decree-holder. In this view of the matter also, it cannot be said that the first execution petition is still pending.

No other point was pressed in this second appeal.

In the result the order of the lower appellate Court is confirmed and this second appeal is dismissed with costs.