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Krishnan Nair Padmanabhan and ors. Vs. Raman Nilakanta Kurup - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtKerala High Court
Decided On
Case NumberSecond Appeal No. 552 of 1958
Judge
Reported inAIR1963Ker216
ActsLimitation Act, 1908 - Schedule - Article 182
AppellantKrishnan Nair Padmanabhan and ors.
RespondentRaman Nilakanta Kurup
Appellant Advocate P. Sivarama Iyer, Adv.
Respondent Advocate P.H. Sankaranarayana Iyer, Adv.
DispositionAppeal dismissed
Cases ReferredP. Krishna Panicker v. C. Kunchu
Excerpt:
- .....which does not find a place in the earlier execution petition. for this reason, the order of the district judge dismissing the present execution has to be affirmed. subject to the observation made above the second appeal is dismissed, but i do not order costs. 4. leave to appeal was asked for; but i do not think it a fit case for granting leave. leave refused.
Judgment:

S. Velu Pillai, J.

1. The question for decision in this second appeal by Additional decree-holders 3 and 4 is, whether the execution petition dated June 27, 1956, is within time or not. The first petition for execution of the decree was made on the 4th January, 1943, and was dismissed on the 6th September, 1944. The next petition for execution was made on the 15th November 1949. On objection being taken by the 19th defendant, by an order dated the 25th September, 1950, the execution Court called upon the decree-holder to amend the execution petition by computing the amount to be realised at the computation rate for paddy as found. The execution petition was posted for amendment on the 14th October, 1950, and was ultimately dismissed for non-compliance, on the 30th October 1950. The decree-holder preferred an appeal against the order of the 25th September, 1950, within time, though after the dismissal of the execution petition. This appeal was dismissed. On Second Appeal, however, the Travancore-Cochin High Court set aside the order of the execution court, so far as it related to the computation rate and directed that the rate in accordance with the decision of 3 FULL Bench of the Court may be adopted.

The order directing amendment of the execution petition being removed, all consequential proceedings inducing the order of dismissal were wiped out. This principle has been recognised in two decisions of this Court. InChappila v. Chemmaran,, 1960 Ker LT 1361: 1960 KLJ 421: (AIR 1961 Kerala 200) plaintiff who had preferred an appeal against the decree in a partition suit having withdrawn from the appeal, an application for transposition as appellants made by other parties was dismissed. Thereupon the appeal also was dismissed as not pressed. On a revision petition against the order on the application for transposition being allowed, the High Court also held, that the logical result would be to wipe, out the effect of the appellate decree dismissing the appeal, the principle was stated thus by the learned Judge:

'The dismissal is therefore a direct consequence of that wrong order. That is a matter of certainty not one of a mere possibility -- that, had the right order been passed, the result might have been dilferent'.

And it was held that the appeal must be disposed of on the merits notwithstanding the decree, in Radhakrishnan v. Madhavan Pillai, 1961 Ker LT 3 the suit came to be dismissed for the non-payment of court-fee ordered by the first Court, but in revision the court-fee already paid was held to be sufficient. The effect of this was

'to undo the consequences that followed the non-compliance with the impugned order and thereby, to restore the suit to file'.

2.. The learned counsel for the respondent relied on the rule in the Full Bench decision of the Travancore-Cochin High Court in P. Krishna Panicker v. C. Kunchu, 1953 Ker LT 670: (AIR 1954 Trav-Co. 1 (FB)) but that, I think, is a case where the question decided was, whether the dismissal of the execution petition was judicial or not. There is no doubt, and it was not contended otherwise, that the dismissal of the petition on the 30th October, 1950 was judicial. Even so, judicial orders are affected by the principle, recognised and applied in the two cases. I therefore hold, that the execution petition dated the 15th November, 1949, must be deemed to be still pending,

3. But the decree-holder cannot proceed with execution on the basis of the present execution petition, because there is a prayer in it for the attachment of properties which does not find a place in the earlier execution petition. For this reason, the order of the District Judge dismissing the present execution has to be affirmed. Subject to the observation made above the second appeal is dismissed, but I do not order costs.

4. Leave to appeal was asked for; but I do not think it a fit case for granting leave. Leave refused.


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