Narayani vs Ramakrishnan

Raman Nayar, J.—The prior execution petition, which was made in time, and which the respondent decree-holder claims, was pending when his present execution petition was filed, the latter being only a reminder to the court, was filed on 2--7--1952. It was not accompanied by the process fees required by rule 207(3) of the Travancore Civil Courts Guide which was then in force. On 3--7--1952 to which date the case was not posted the judge made an order posting the case to 8--7--1952 for the payment of the process fees and there is nothing to show that of this posting, made on a day to which the case did not stand posted and apparently made in chambers and not in open court, the decree holder was given notice. On 8--7--1952 the judge dismissed the petition because the process fees had not been paid within the time he had allowed but of which indulgence he had taken no steps to inform the decree-holder. That being so, it seems to us that the lower appellate court was right in holding that the disposal on 8--7--1952 was only a ministerial disposal in the sense that it was only for statistical purposes, the judge having no intention of dismissing it for a default of which, in the circumstances, the decree holder was not really guilty. It follows that it was right in setting aside the first court''s order dismissing the execution petition on the ground of limitation. In the view we have taken it is unnecessary for us to consider the question whether an earlier order for execution made in the present execution petition would preclude the court from considering the question of limitation raised by the appellant-judgment-debtor on the principles of res judicata.

We dismiss the appeal.