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P.K. Sathianesan Vs. Sankaran Nadar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberA.S. No. 106 of 1958
Judge
Reported inAIR1959Ker154
ActsCode of Civil Procedure (CPC) , 1908 - Order 21, Rule 10 - Order 47, Rule 7(1)
AppellantP.K. Sathianesan
RespondentSankaran Nadar
Appellant Advocate K.C. John, Adv.
Respondent Advocate S. Nilakanta Iyer, Adv.
DispositionAppeal allowed
Excerpt:
- - the order is therefore clearly appealable......would appear to have done it on more compassionate grounds. the order proceeds to state that the decree-holder was negligent, but finds support for admitting the review on the basis that no notice was given to the decree-holder that his application was proposed to be dismissed. we are not aware of any provision of law enjoining the court to issue such a notice as a condition precedent to the dismissal of an execution petition for want of prosecution. the decree-holder was represented in court and his counsel was present in court when the application was dismissed. on the merits therefore the order cannot therefore be supported.2. mr. nilakanta iyer appearing for the decree-holder respondent raised a preliminary objection that the appeal is incompetent. order 47, rule 7 (1) (b), c. p......
Judgment:

Koshi, C.J.

1. The appeal is against an order admitting the Review of an order dismissing an execution application for want of prosecution. We are unable to find any justification for admitting the review. The learned Judge would appear to have done it on more compassionate grounds. The order proceeds to state that the decree-holder was negligent, but finds support for admitting the review on the basis that no notice was given to the decree-holder that his application was proposed to be dismissed. We are not aware of any provision of law enjoining the court to issue such a notice as a condition precedent to the dismissal of an execution petition for want of prosecution. The decree-holder was represented in court and his counsel was present in court when the application was dismissed. On the merits therefore the order cannot therefore be supported.

2. Mr. Nilakanta Iyer appearing for the decree-holder respondent raised a preliminary objection that the appeal is incompetent. Order 47, Rule 7 (1) (b), C. P. C., provides an appeal when a review is admitted in contravention of Rule 4 of the said order. Rule 4 (1) states that where it appears to the court that there is no sufficient ground for a review, it shall reject the application.

The court having said that the decree-holder was negligent admitted the review on a wrong conception as to the necessity for a notice and we have already stated that notice of the kind referred to by the Judge is not required by law. The order is therefore clearly appealable. Rule 7 (1) states that the order admitting the review may be appealed against immediately or the order may be challenged in the appeal against the final order. The preliminary objection is therefore overruled.

3. In the result, the appeal has to be allowed and we decide accordingly. The appellant willreceive his costs in the appeal from the respondent.

4. We should not be taken to have decided that any further execution is barred by the 12 years' rule. If and when a fresh application is filed the lower court will deal with it on the merits.


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