Narayani Amma vs Krishnan Nair

The second judgment-debtor is the Appellant. The decree was on 7-11-1105 and the present execution petition was on 28-10-1121. The judgment-debtor contended that this was a fresh execution application, So that it was governed by the twelve years'' rule. The execution petition was, therefore, contended to be barred by limitation. The execution Court upheld this contention. But the Judge of the lower appellate Court came to a different conclusion. We are, therefore, to examine whether the execution petition is barred by limitation or not. The penultimate execution application was on 29-5-1108. On this application, notice had been ordered and the hearing date for the return of notice was 17-7-1108. On this latter date, an order was passed calling upon the decree-holder to apply for appointing a guardian to two of the legal representatives of Defendant 1. The case was adjourned to 25-7-1108 for filing that application. The decree-holder did not make any application on that date and, so, on 26-7-1108, the execution petition was dismissed. The question is whether this disposal was by a judicial order.

The Munsiff found that the disposal was by a judicial order, whereas the Judge held that it could not be judicial order, for, according to him, the statement made by the learned Munsiff that the execution petition was posted to 25-7-1108 was not correct as the order on 29-6-1108 by the Munsiff was "File Proclamation schedule etc." Evidently, the learned Judge was referring to the execution diary in some other case, for we did not find any justification for the reasoning given by the learned Judge from the records in this case. We verified the entries in the execution diary with the orders of the Court, copied on the execution petitions, and we found that the execution diary was perfectly in order. It was this mistake that led the learned Judge to come to a different conclusion from that arrived at by the execution Court.

We shall now examine the case on its merits. We see that the case had been posted to 25-7-1108 for the decree-holder to take some steps to enable the Court to go on with the execution petition. The Respondent''s learned advocate would contend that this posting on 25-7-1108 was not by a judicial order, for the order on 17-7-1108, by the Munsiff was only directing the decree-holder to apply to appoint a guardian for the minors. From 17-7-1108 the case had been adjourned to 25-7-1108. The decree-holder had no case, before the lower Court, that he was not aware of the posting of 25-7-1108. On the other hand, his contention was that, since the order dismissing the execution petition was not passed on 25-7-1108, the date on which further steps were to be taken, but only on the next day, the disposal was only by a ministerial order.

This question had been set at rest by the Full Bench ruling in-Thanuperumal Pillai v. Thanumalayan 1948 TLR 237 (A), I which held that if the execution petition was properly posted to a specified date for any particular act to be done, without which the execution could not proceed, and the act was defaulted, the execution petition might be disposed of even on a later date, though not specified, if such disposal appeared to be reasonably prompt in the circumstances of the case and not a surprise owing to the delay. Since the posting on 25-7-1108 was a proper posting, within the knowledge of the decree-holder, the disposal of the petition on the next day, for default on his part, should be considered to be by a judicial order. Thus, the penultimate execution application was judicially disposed of on 26-7-1108 and the subsequent application on 28-10-1121 was, therefore, hopelessly barred by limitation. The order of the lower appellate Court is set aside and that of the Munsiff restored with costs throughout.