Somasekharan v. Saraswathi Amma and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL** **THURSDAY, THE 5TH DAY OF JUNE 2014/15TH JYAISHTA, 1936** **CRP.No. 535 of 2010 ( ) ------------------------** **AGAINST THE ORDER IN OS 768/1973 of PRL.MUNSIFF COURT, CHERTHALA** **REVISION PETITIONER(S)/DECREE HOLDER: ---------------------------------------** **SOMASEKHARAN, S/O. PANKAJAKSHAN, AMBALAVELIYIL, PERUMPALAM P.O., PERUMPALAM MURI PERUMPALAM VILLAGE.** **BY ADV. SRI.T.JAYAKRISHNAN** **RESPONDENT(S)/JUDGMENT DEBTORS:** **---------------------------------** **1. SARASWATHI AMMA, W/O. RAGHAVAN NAIR, THEKKENALIYATH FROM KIZHAKKEVELY, PERUMPALAM MURI PERUMPALAM VILLAGE.** **2. RAJAMMA, D/O. SARASWATHI AMMA, OF -DO- -DO-** **3. APPUKKUTTAN, S/O. RAGHAVAN NAIR, OF -DO- -DO-** **4. RADHAKRISHNAN, S/O. RAGHAVAN NAIR, OF -DO- -DO-** **5. SOUDAMINI, W/O. JAYAPALAN, KIZHAKKENALIYATH OF -DO- -DO-** **6. ABHIJITH, S/O. JAYAPALAN, OF -DO- -DO- (MINOR)** **7. ATHIRA, D/O. JAYAPALAN, OF -DO- -DO- (MINOR)** **R1 TO R7 BY ADV. SRI.B.KRISHNA MANI** **THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 05-06-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **stu** **'CR'** ## **K.HARILAL, J.** **_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _** ## **C.R.P. No.535 of 2010** **_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _** Dated this the 5[th] day of June, 2014 ## **O R D E R** The revision petitioner and the respondents are the legal heirs of the original decree holder as well as the judgment debtors respectively. The revision petitioner filed E.P. No.599/05 in O.S.No.768/73, seeking delivery of the property in execution of the decree passed in favour of his deceased father in the above Original Suit. The suit was one for declaration of title and possession and also for a mandatory injunction directing the judgment debtors to remove a shed. The suit was disposed of on 7-6-1974 and the E.P. was filed on 26-11-2005, after a long lapse of 30 years. The respondents filed an objection contending that the present petition for execution of the decree is barred by limitation. After considering the rival contentions, the court C.R.P. No.535 of 2010 2 below dismissed the Execution Petition on a finding that the execution of the decree is barred by limitation. The legality and propriety of the findings, by which the Execution Petition had been dismissed, are under challenge in this Revision Petition. 2. The learned counsel for the revision petitioner submits that, though, the Execution Petition was filed on 26-11-2005, after a long lapse of 30 years, it was not barred by limitation as the execution was stayed by the stay order passed in different suits for different periods. The learned counsel further submits that the decree was passed on 26-11-2005. But the execution was stayed by the stay order of the appellate court in A.S.No.219/74 and the appeal was dismissed on 15-3-1976 only. Therefore, that period is liable to be excluded in computing the period of limitation. Immediately after the dismissal of the above appeal, E.P. No.909/76 was filed on 8-11-1976. But, that E.P. was dismissed on 22-3-1985 on default. Even during the pendency of that E.P., the delivery of the property was C.R.P. No.535 of 2010 3 stayed in O.S. No.217/81 from 2-4-1981 and that continued up to 31-10-1987, the day on which that suit was dismissed. Again, the stay against delivery was ordered in A.S.No.46/88 on 6-9-1988 vide Ext.A9 and the same continued up to 1-12-1995. **T** herefore, the period of limitation again starts from 01/12/1995. If that be so, the present petition, which was filed on 26/11/2005 is within the period of limitation. 3. Per contra, the learned counsel for the respondents contends that, though, there was a stay from execution of the decree in A.S.No.219 of 1974, the said appeal was dismissed on 15/03/1976 and thereafter the first E.P was filed on 08/11/1976. But, that E.P was dismissed on default on 22/03/1985. The stay orders in O.S.No.217/1981 and subsequently, in A.S.No.46/88 were only against delivery of the property. There was no stay against execution proceedings in the said original suit as well as in the appeal. Therefore, the stay order in O.S.No.217 of 1981 and A.S.No.46 of 1988 are of no consequence at all when 4 C.R.P. No.535 of 2010 computing the period of limitation. It is also contended that the first E.P.No. 909 of 1976 was dismissed on 22/03/1985 on default. That dismissal cannot be treated as dismissal for statistical or ministerial purpose. Thus, the present E.P is barred by the dismissal of the first E.P on 22/03/1985. 4. I have given my anxious consideration to rival submissions at the Bar. The short question that arises for consideration in this revision petition is, whether there is any illegality in computing the period of limitation by which the court below dismissed the present E.P on a finding that the present E.P is barred by limitation ? 5. Admittedly, the suit was decreed on 07/06/1974 and the execution of the decree was stayed in A.S No.219 of 1974 which was dismissed only on 15/03/1976. Certainly, the said period is liable to be excluded. But, it is seen that the present execution is filed after 28 years. 6. The learned counsel for the revision petitioner contended that, there was a stay in O.S.No.217 of 1981 from 02/04/1981 and the same was continued in A.S.No.46 5 C.R.P. No.535 of 2010 of 1988 which was dismissed on 1/12/1995 only. But, as rightly submitted by the learned counsel for the respondents, it is pertinent to note that there was no stay against the execution of the decree during this period and the stay was confined against delivery of the property alone. Certainly, the revision petitioner could have filed execution petition during this period, as delivery alone was stayed. Therefore, I find that this period is not liable to be excluded in computing the period of limitation. 7. The next question to be considered is, whether the present E.P is barred by the dismissal of first E.P No.909 of 1976 on 08/11/1976, and the second E.P No. 230/1984 which was dismissed on 20/10/1984 ? It could be seen that the first E.P.No. 909 of 1976 was dismissed on the reason that there was no representation for both sides and the second E.P No.230 of 1984 was dismissed as not pressed. Then the point to be considered is, whether the dismissal on non-representation or as not pressed can be treated as dismissal for statistical or ministerial purpose ? If it is not C.R.P. No.535 of 2010 6 statistical or ministerial purpose, the present E.P is barred by those dismissal. 8. The learned counsel for the revision petitioner placed reliance on the decisions reported in **Kumaradasan Nair v. Iric Sohan** (2009 (4) KLT 70) and **Pentapati China Venkanna v. Pentapati Bangararaju** (AIR 1964 SC 1454) and submits that the dismissal of the earlier first and second E.Ps was for statistical purpose only and it was not disposal of the E.P. 9. Per contra, the learned counsel for the respondents placed reliance on the decision reported in **Antony v. Antony** (1987 KLJ 489) and submits that the principles of revival cannot be applied to dismissal for non representation and also for dismissal as not pressed. Going by the decision in **Kumaradasan's** case, I find that the said decision will not render any help or aid to the petitioner. In that case also, the dismissal was consequent on the default of the decree holder in prosecuting the execution petition C.R.P. No.535 of 2010 7 and this Court has arrived at a conclusion that the second execution petition is not entertainable and liable to be rejected if the first petition was dismissed on default. 10. Moreover, in the above decision, it is seen that this Court placed reliance on the decision reported in **Mary George v. Zacharia Kuriakose** (1988 (1) KLT 345). In this decision, this Court held that, even if, the earlier dismissal was on default, if the dismissal on default is a mistake of the court or there was no laches from the part of the decree holder or that he was not at fault and if the court is satisfied on the decree holder's stand on that score, there is nothing wrong in treating the previous petition as pending. But, in the instance case, the petitioner has no case that the earlier dismissal of E.P on default was on mistake of the court or there was no laches on his part or that he was not at fault. If that be so, the petitioner is not entitled to get any benefit under the above decision also. 11. Coming to the decision reported in **Antony's** (supra) case, this Court held as follows: C.R.P. No.535 of 2010 8 “Held : Where an auction purchaser's application for delivery happens to be dismissed for his default, the effect of such a judicial disposal could not be got over by equating it to “striking off” the application for statistical purposes. If the dismissal of an application for non-payment of batta is judicial disposal foreclosing “revival” of the same on the filing of another application employing suitable words of camouflage, the position must be more so where the first application is dismissed, as in the present case as “not pressed”. It will be improper to allow auction purchasers to file delivery applications in time and get it dismissed, and then to approach the court again, years later, with pleas of “revival”, “step-inaid”, “in continuation of” and the like”. 12. In view of the above decision, I am of the view that, if the earlier E.P was dismissed as not pressed, the subsequent E.P cannot be treated as revival or continuation of the earlier E.P. In the light of the above discussion, I am of the opinion that this execution petition filed after a long period of 30 years, is barred by limitation. In fact, after the dismissal of A.S No.219 of 1974 on 15/03/1976, there was C.R.P. No.535 of 2010 9 no legal impediment to execute the decree. Similarly, after the dismissal of the first E.P on default and also the second E.P as not pressed, the petitioner has no right to file a third E.P, as the third E.P cannot be treated as a revival or continuation of the earlier E.P. At all points, the revision petition fails and this revision petition is dismissed accordingly. **K.HARILAL, JUDGE.** Stu //True copy// P.A to Judge.