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K. Asheram Vs. Abdulla and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAndhra Pradesh High Court
Decided On
Case NumberLetter Patent Appeal No. 6 of 1970
Judge
Reported inAIR1973AP232
ActsLimitation Act, 1908 - Schedule - Article 182(5)
AppellantK. Asheram
RespondentAbdulla and ors.
Appellant AdvocateSadasiva Rao and ;R.C. Mishra, Advs.
Respondent AdvocateB.V. Subbarayudu, Adv.
Excerpt:
.....court having taken execution petition out of file and consigned same to records, rights of decree-holder to execute decree is taken away unless he had made application for revival of execution petition within three years from date of that order - no period of limitation is prescribed for revival of execution petition which is pending in court - no part of duty of decree-holder to find out fate of revision filed by judgment-debtors and then move court for revival of his earlier execution petition which was consigned to records so long as order made on execution petition not made final order. - motor vehicles act (59 of 1988)section 149 (2): [v. gopala gowda & jawad rahim, jj] insurers entitlement to defend the action joint appeal by insured and insurer - held, the language..........taken the execution petition out of its file and consigned the same to records, the right of a decree-holder to execute the decree is taken away unless he had made an application for revival of the execution petition within three years from the date of that order i.e., 1-12-1951.2. the facts necessary for the disposal of this appeal are these; one chunnilal, the father of the appellant (3rd decree-holder) and others obtained a decree in o. s. no. 10/1 of 1333 fasli against the defendants. the action was laid on the foot of a mortgage. the decree provided that the debt has to remain under mortgage till the decree was completely satisfied. a number of execution petitions were filed, the last one being e. p. no. 13/2 of 1355 fasli for realisation of the balance of the decretal amount by.....
Judgment:

Obul Reddi, J.

1. The short question that arises for consideration in this Letters Patent Appeal is whether, by reason of the executing Court having taken the execution petition out of its file and consigned the same to records, the right of a decree-holder to execute the decree is taken away unless he had made an application for revival of the execution petition within three years from the date of that order i.e., 1-12-1951.

2. The facts necessary for the disposal of this appeal are these; One Chunnilal, the father of the appellant (3rd decree-holder) and others obtained a decree in O. S. No. 10/1 of 1333 Fasli against the defendants. The action was laid on the foot of a mortgage. The decree provided that the debt has to remain under mortgage till the decree was completely satisfied. A number of execution petitions were filed, the last one being E. P. No. 13/2 of 1355 Fasli for realisation of the balance of the decretal amount by sale of the mortgage property as well as arrest and detention of the judgment-debtors in a civil prison. Some of the judgement-debtors paid a portion of the decretal amount and compromised with the decree-holder. A revision was preferred in the High Court against that order by those who did not compromise and an ex parte stay order was obtained against the execution of the decree. That revision, it would appear was dismissed on 20-3-1951 for non-payment of 'costs'. It appears from the order of the executing Court that the order dismissing the revision for non-payment of costs was not received by it and therefore it made the following order on 1-12-1951.

'Advocates for the parties present. No intimation regarding disposal of revision has been received from the High Court. The proceeding is pending since long time awaiting the disposal of the revision by the High Court. It appears proper to consign the proceedings to records. The decree-holder can submit petition for revival of proceedings after disposal of revision.. For the present awaiting the disposal of revision the file be consigned to the records.'

Fourteen years thereafter, decree-holder No. 3 (the appellant herein) filed E. A. No. 17 of 1965 for restoration of E. P. No. 13/2 of 1355 Fasli and that application was allowed by the executing Court on 29-7-1968. It is against that order. C. M. A. No. 247 of 1968 was preferred by judgment-debtors 8 and 12 (respondents 1 and 2 herein) canvassing the correctness of the order of the executing Court. Our learned brother. A. D. V. Reddy. J. Allowed the appeal and reversed the order of the executing Court on three main grounds viz. (1) that the decree-holder having failed to make an application for renewal of the execution petition 'should be deemed to have abandoned his right to continue the prior execution petition' (2) that the application for revival filed fourteen years later is barred by limitation under old Art, 181 of the Limitation Act; and (3) that the limitation of three years for filing a fresh application commenced from the date of dismissal of the revision by the High Court which was on 20-3-1951.

3. Mr. Sadasiva Rao appearing for the appellant contended that the appellant was not a party to the Civil Revision Petition preferred to the High Court inasmuch as no notice was served upon him either regarding the interim stay order obtained by the judgment-debtors or as regards the filing of the main revision petition; and as such, the dismissal of the revision by the High Court for the failure of the judgment-debtors to pay 'costs' or batta for serving notices on the original decree-holder cannot be called in aid either for the purpose of imputing the appellant with knowledge of the disposal of the revision or for the purpose of contending that the present application is barred by limitation. It is further contended by him that the order of the executing Court consigning the file to records is not a 'final order' terminating execution petition as required under Article 182 (5) of the Limitation Act and therefore the execution petition must be deemed to be pending on the file of the executing Court, and that the direction or advice of the executing Court that the decree-holder can submit a petition for revival of the proceedings after the disposal of the revision, does not amount to making a final order in the execution petition so long as no final order is passed in the execution petition. Mr. B. V. Subbarayudu, the learned counsel appearing for the respondents, sought to counter the argument of the learned counsel for the appellant on the ground that the appellant was aware of the pendency of the revision petition in High Court on the date on which the executing Court had passed the order (extracted above) and that is borne out by the fact that the execution petition is to await the disposal of the revision pending in the High Court and it was for him, as a prudent and diligent person, to find out the fate of the revision and then pursue the execution partition; and having failed to do, he cannot be permitted after a lapse of fourteen years to make an application for revival of the execution when he should have filed the application for its revival within three years from the date of disposal of the revision by the High Court i.e. 20-3-1951. The learned counsel for the respondents also sought to contend that though the earlier part of the impugned order shows that the executing Court directed the file to be consigned to records, the direction given by it to the decree-holder to file an application for revival should be construed as a 'final order ' and termination of the execution petition itself and he having failed to make an application within the period of three years from 20-3-1951 the date of disposal of the revision by the High Court should pay the penalty for it.

4. From the records in the Civil Revision Petition made available to us, we find that time was granted by the former Hyderabad High Court for payment of process fee for serving notice on the respondents. As can be seen from the records, a Division Bench passed the following order on 21-6-1950.

'The records be sent to Warangal as requested. Lawyer for the appellant undertakes to pay the necessary costs. One month's time is granted for the same. '

On 22-7-1950 three weeks' time was granted for depositing costs. On 14-8-1950 two weeks' further time was granted for paying ' process fee '. On 30-8-1950 time for depositing process fee was further extended by two weeks. On 18-9-1950 another Division Bench consisting of Manohar Pershad, J. ( as he then was ) and Mohamed Ahmed Ansari, J. Passed the following order.

'Sufficient time has been granted for depositing process fee, but have not been deposited so far. Further three weeks granted for the same in default the petition for bringing the legal representatives dated 17th Ardibahist 1358 Fasli shall stand dismissed. '

On 18-11-1950 two weeks' time was granted for depositing costs which was followed by a similar order dated 5-12-1950. On 5-12-1950, time was further extended for paying process fee and it went on till 15-3-1951 on which the following order was passed.

'Costs be deposited within three weeks on default the petition in revision shall stand dismissed. '

Ultimately an endorsement was made by the Superintendent of the Court on 20-3-1951 that as the process fee was not paid within the time specified by the Division Bench, the revision stood dismissed.

5. There is nothing in the entire file -- part of which is in Urdu and part of which is in English -- which the learned counsel for both sides have looked into to indicate that the decree-holder was served personally with notice either in the revision or in the civil miscellaneous application for stay. The final order dated 20-3-1951 was not made in the open Court as may be seen from the endorsement in Urdu, but by a Superintendent. So it is difficult , in the face of what is contained in the records of erstwhile Hyderabad High Court to hold that the decree-holder had notice of the revision petition or its dismissal, whatever may be the reasons for it, on the date when the executing Court made the impugned order. Though the file of the High Court shows that the revision was dismissed for non-payment of process fee on 20-3-1951 the records were not dispatched to the lower Court by the High Court ; nor was it in the knowledge of the decree-holders that the revision was disposed of in the above manner on 1-12-1951 when the District Judge consigned the E. P. file to the record room and asked the parties to await the disposal of the revision. This order for from showing as sought to be made out by Mr. B. V. Subba Rayudu for the respondents that the decree-holder had knowledge of the disposal of the pendency of the revision in the High Court goes to show that he was not aware of the revision or its disposal. It is strange that the judgment-debtors also did not bring to the notice of the Court that they had failed to deposit the process fee and therefore the revision stood dismissed for that reason. It seems clear from the aforesaid facts that the judgment-debtors, for reasons of their own, did not want to bring to the notice of the executing Court the fate of the revision as otherwise we have no doubt that the District Judge would not have made the impugned order.

6. We are unable to agree with Mr. Subbarayudu that the order advising the decree-holder to file an application for revival of the execution petition amounts to a final order made in the execution petition. A final order is one which terminates the proceedings so far as the Court passing it is concerned. It is manifest from the order of the executing Court that it never intended to terminate the proceedings and at the same time did not to keep an execution petition on its file pending for any length of time. As the parties were not in a position to tell the Court the stage at which the revision stood before the High Court the executing Court felt that it was far better to close the file, consign the same to the record room and take it up again either after receipt of the records from the High Court or when it is revived by means of an application by the decree-holder. Such an order will not amount to a final order or for any default of the decree-holder.

7. In Venkata Subbayya v. Venkanna, : AIR1953Mad213 a Division Bench of the Madras High Court consisting of Rajamannar, C. J. And Venkatarama Aiyyar, J. Dealing with an application for revival made by a decree-holder three years after the scaling down of the decree, observed :

'The original execution petition was not dismissed and there was no default on the part of the decree-holder and the Court did not intend to finally dispose of the execution petition by the words ' struck off '. The petition must be deemed to have been alive and can be continued. It is not necessary for the decree-holder to file an application for revival of the original execution petition within three years of the order scaling down the decree. '

8. In Venkanna v. Bangararaju, : [1964]6SCR251 , Subba Rao, J. ( as he then was ) in very clear terms held :

'The application mentioned to Section 48 is a fresh substantive application and not an application to revive or continue a substantive application already pending on the file of the Court. Where the previous execution petition is ' closed ' for statistical purposes because the High Court stayed the execution pending the appeal filed by the judgment-debtors and the decree-holders were not in a position to proceed with the execution petition, the execution petition must be held to be pending on the file of the executing Court and the subsequent application is only an application to continue the previous application and not a fresh one. ' The learned Judge also referred to the practice of the executing Courts in using the words ' closed ', ' struck off ' and ' recorded ' and observed at p. 1457. :

'It is intended not to finally dispose of the application but to keep it pending. Whether the order was without jurisdiction or whether it was valid, the legal position would be the same ; in one case it would be ignored and in the other, it is not the phraseology used by the executing Court that really matters, but it is really the substance of the order that is material. Whatever terminology may be used, it is for the Court to ascertain, having regard to the circumstances under which the said order was made whether the Court intended to finally terminate the execution proceedings. If it did not intend to do so, it must be held that the execution proceedings were pending on the file of the Court. '

9. We are unable to say from a reading of the order in question that the executing Court intended to finally terminate the execution proceedings and therefore consigned the papers to the record room. The object in consigning the file to the record room was to await the disposal of the revision by the High Court and receipt of records thereafter. It would thus appear that it is a case of closing the file for statistical purposes as the parties ere also unable to tell it as to the stage of the revision petition or how long it would take for the High Court to dispose of the revision. It is not necessary to multiply decisions on this point and it would suffice if we refer to a Full Bench decision of the Allahabad High Court in Bhan Datta v. Tulsa Kuer, AIR 1940 All 151 ( FB ) a Division Bench decision of this Court in Chandmal v. Pratabgirji, AIR 1958 Andh Pra 655 and of the Supreme Court in S. K. Sahgal v. Kishore Khanna, AIR 1959 SC 809. In Chandmal's case AIR 1958 Andh Pra 655, Qamar Hasan and Kumarayya, JJ. Dealing with a similar case where an order was made consigning the petition to the record room observed that :

'The order was one consigning the execution proceeding to the record room was not a disposal within the meaning of clause (5) of Art. 182 of the Indian Limitation Act, or Art. 160 of the Hyderabad Limitation Act. '

10. Sarkar, J. ( as he then was ) speaking for the Court in Sahgal's case, AIR 1959 SC 809, held :

'A right to continue a proceeding which is pending is a right which arises from day to day and no question of any bar of limitation with regard to the enforcement of such a right arises. ' A Full Bench of the Allahabad High Court in Bhan Datta's case, AIR 1940 All 151 ( FB ) also held :

'When execution of decree is stayed by Court under Order 21, Rule 29, C. P. C. Pending disposal of judgment-debtor's suit and execution application is thereupon consigned to record room, this does not terminate the execution proceedings. When the stay order has ceased to operate it is not incumbent on the decree-holder to make an application to set execution proceedings in motion . If he makes such an obligation it is not governed by Art. 181, Limitation Act, and cannot be barred even if made more than three years after the disposal of judgment-debtor's suit. '

The position obtaining in the instant case is not any different. It is not a case where on the facts it could be said that there is any waiver or abandonment of right by the decree-holder. No period of limitation is prescribed for revival of an execution petition which is pending in a Court. So long as the order made on the execution petition is not a final order, it is no part of the duty or business of the decree-holder to find out the fate of the revision filed by the judgment-debtors and then move the Court for revival of his earlier execution petition which was consigned to records. The executing Court cannot direct or advice the decree-holder to move the Court by way of any application for revival of the execution petition after the disposal of the revision petition. This petition is made clear by Rule 26 of the Civil Rules of Practice that :

'No suit appeal, matter or proceeding, shall under any circumstances whatever be adjourned since die or struck off the file and if, by inadvertence, a day certain for the further hearing is not fixed by the Court, or a case is ordered to be struck off the file, the case shall be posted and come on for hearing one month from the day on which it was before the Court or, if the court is then closed on the next day thereafter on which the Court is sitting. '

We are quoting this Rule only for the purpose of showing that it is for the Court in cases where it consigns cases of this nature to the record room to take them on its file suo moto and not wait for the parties to remind it about the pendency of an execution petition or any other matter on its file by way of an application.

11. For the reasons recorded, we set aside the judgment of our learned brother, A. D. V. Reddy, J. And uphold the order of the executing Court restoring E. P. No. 13/2 of 1355 Fasli. The Letters Patent Appeal is allowed with costs.

12. Appeal allowed.


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