Vareed Jacob vs Sosamma

S. Sankarasubban, J.—This Civil Revision Petition is filed against the order in E.P. NO. 37 of 1981 in O.S. No. 332 of 1122 (ME) on the file of the Munsiff''s Court, Kottarakkara. The suit was for partition. The decree holder obtained a decree to get delivery of items 10 to 16 from the judgment debtors. As per the final decree dated 21.5.1964, the sixth defendant was allowed to take A schedule property item No. 8 having an extent of 29 cents and also item No. 16 having an extent of 1 acre and 75 cents. After the decree, the sixth defendant died and the legal representative were impleaded. They applied for getting delivery of the property. Then what happened was that the third defendant filed O.S. No. 209/69 against the original 6th defendant and others for setting aside the decree in O.S. 332/1122(ME) and O.S. No. 90 of 1952 and obtained an order of injunction restraining the sixth defendant and others from executing the decree in the present case. After the disposal of O.S. No. 209/69, the plaintiff in that case referred an appeal as A.S. 137 of 1975. The Sub Court dismissed the appeal against which he preferred S. A. No. 532 of 1978 before this High Court and the same was dismissed on 11.7.1979. After this the execution petition was filed in 1981. The judgment debtors contended that the Execution Petition is barred by limitation since the final decree was passed on 21.5.1964. According to the judgment debtors the execution petition ought to have been filed on 21.5.1976. It was found by the Court below that in O.S. No. 209/69 there was an order of injunction restraining the 6th defendant and others from executing the decree. This injunction was in force from 1969 to 1975. The court below took the view that if this period is excluded, the execution petition will be in time. But the judgment debtors contended that O.S. No. 209/69 was dismissed fro default on 2.4.1973 and the case was restored to file only on 20.12.1974. Counsel for the defendants submitted that there was no fresh petition for injunction after the restoration. According to the counsel, since the suit was dismissed for default, when the suit was restored to file, there was no automatic restoration of the injunction orders. But the court below rejected this contention and held that exclusion petition is not barred by limitation. Before me, the learned counsel for the petitioner contended that even though the order of injunction was obtained in the suit, the suit has been dismissed for default. After the suit was restored, no fresh application for injunction was filed and there was no injunction restraining the execution of the decree. He contended that there was no automatic revival of the order of the injunction. Learned counsel brought to my notice certain decisions. But, according to me, there is a decision of this Court in Ulahannan Chacko v. Mathai 1986 KLT 301. In that case, Fathima Beevi, J. (as Her Lordship then was) relied on the decision of the Madras High Court in Saranatha Ayyangar v. Muthiah Mooppanar AIR 1934 Mad 49, wherein it was held as follows:

"The question whether the restoration of suit revives the ancillary orders passed before the dismissal for default of suit depends upon the terms in which the order of dismissal for default is passed by the trail court and also the terms in which the trial court or the appellate court has restored the suit in question. if the Court passes an order dismissing the suit for default without any reference to the ancillary orders and such a suit a restored by the Court which dismissed it for default or by the appellate court, then the ancillary orders passed in the suit get revived after the order of restoration of the suit is passed. But, where the court which dismisses the suit specifically vacates the ancillary orders passed therein and the court restoring such a suit does not advert to ancillary orders so vacated, then the ancillary orders would not get revival even if there is restoration of the suit."

In Nandipati Rami Reddi and Others Vs. Nandipati Padma Reddy and Others, , it is held thus:

"Once the order of dismissal is set aside, the plaintiff must be restored to the position in which he was situated when the court dismissed the suit for default. Therefore, it follows that the interlocutory orders, which had been passed before the order of dismissal, would also be revived along with the suit when the order of dismissal has been set aside and the suit has been restored."

Following the above decisions, I am of the view that when the suit was restored, the order of injunction was also restored. Hence, I agree with the court below that since there was an order of injunction, the execution petition was filed within time.

The CRP fails and it is dismissed.