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Padmanabha Pillai Govinda Pillai Vs. Padmanabha Pillai Raman Pillai and anr. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKerala High Court
Decided On
Case NumberSecond Appeal No. 328 of 1956(T)
Judge
Reported inAIR1959Ker401
ActsCode of Civil Procedure (CPC) , 1908 - Sections 47 and 151; Limitation Act, 1908 - Schedule - Article 181
AppellantPadmanabha Pillai Govinda Pillai
RespondentPadmanabha Pillai Raman Pillai and anr.
Appellant Advocate N. Krishnaswamy Iyengar, Adv.
Respondent Advocate M.P. Ramakrishna Pillai, Adv. for 2nd Respondent
DispositionAppeal dismissed
Cases ReferredKeshar Deo v. Radha
Excerpt:
- - this is clearly wrong as the main prayer was for a declaration that the proceedings taken in execution against the terms of the decree were without jurisdiction and therefore void. in effecting a division of the properties the execution court clearly acted without jurisdiction. the execution court clearly acted without jurisdiction and committed a mistake in directing a delivery of a specific plot of land contrary to the terms of the decree. the 12th defendant's application is well 'within the period of 3 years and is not therefore barred by limitation......redemption and recovery of possession of an oodukur share in certain immoveable properties. the decree-holder applied for effecting a division of the land by the execution court and for delivery of possession of such land as he was found entitled to. the execution court allowed this prayer and directed that specific plots as per the division effected by the commissioner deputed by that court be delivered over to the decree-holder. an order for delivery was accordingly made and after the amin reported that delivery of possession was effected, the 12th defendant filed a petition stating that the execution proceedings were taken without notice to him and that recovery of specific plots was allowed without jurisdiction as the decree did not provide for the same but only for recovery of an.....
Judgment:

T.K. Joseph, J.

1. This is a Second Appeal by the decree-holder and it arises from an order in execution of a decree for redemption and recovery of possession of an Oodukur share in certain immoveable properties. The decree-holder applied for effecting a division of the land by the execution court and for delivery of possession of such land as he was found entitled to. The execution court allowed this prayer and directed that specific plots as per the division effected by the Commissioner deputed by that court be delivered over to the decree-holder. An order for delivery was accordingly made and after the Amin reported that delivery of possession was effected, the 12th defendant filed a petition stating that the execution proceedings were taken without notice to him and that recovery of specific plots was allowed without jurisdiction as the decree did not provide for the same but only for recovery of an Oodukoor share.

It was further seated that the Amin had only created a record of delivery without effecting actual delivery of possession and that he came to know of the same only on 28-4-1124 when the decree-holder attempted to take forcible possession. Another contention was that the properties were in the possession of a receiver appointed by court and that leave of court was not obtained for effecting delivery of possession from the receiver. The main prayer in the petition was for a declaration that the execution proceedings were conducted fraudulently and against the express provisions of the decree and that the same were to be cancelled.

The 12th defendant also prayed for converting the petition into a plaint in case it was found that a petition under Section 47 was not maintainable. The decree-holder filed objections and two of the grounds taken by him were that the petition was not maintainable under Section 47 or Section 116 of the Code of Civil Procedure and that it was barred by limitation. These two questions were heard as preliminary issues and the execution court dismissed the 12th defendant's petition upholding the preliminary objections. On appeal, the lower appellate court reversed the order and remanded the petition for disposal on the merits. The decree-holder has therefore preferred this Second Appeal.

2. The points urged in Second appeal are:

1. Whether the petition is maintainable; and

2. Whether it is barred by limitation.

3. The question of maintainability of the petition may be considered first. The petition is filed under Sections 47 and 151 of the Code of Civil Procedure The main ground on which the 12th defendant sought the declaration was that execution proceedings were void as the court acted without jurisdiction in allowing the decree-holder to recover specific plots contrary to the direction in the decree for recovery of an undivided share. The question for decision, is whether an application of this nature can be treated as one under Section 47 of the Code which relates to the execution, discharge or satisfaction of the decree.

The contention was that execution became complete when delivery of possession was effected and that there was therefore no scope for a further petition under Section 47 The High Court of Travancore had consistently taken the view that an application for cancellation of a fraudulent delivery kychit was maintainable either under Section 47 or Section 151 or both. the decisions reported in 5 Trav LT 514, Anthoni Kathanar v. Ousepu Maria, 19 Trav LJ 803 and 1946 Tray LR 599. The Travancore-Cochin High Court has held in Hainan Nair Padmanabhan Nair v. Abdul Kadir Kunju Kochulebba, 1950 DLR (T.C) 262, that such a petition was maintainable under Section 151. The learned Munsiff was of the view that the 12th defendant's petition was for one merely for cancellation of the delivery kychit on the ground that it was prepared without actually effecting delivery. This is clearly wrong as the main prayer was for a declaration that the proceedings taken in execution against the terms of the decree were without jurisdiction and therefore void. That the execution court has no jurisdiction to go beyond the decree was not disputed by the learned counsel for the appellant. The decree directed that the plaintiff could recover possession of only an undivided share in the property. In effecting a division of the properties the execution court clearly acted without jurisdiction. It may be mentioned that the earlier execution petitions in the case were only for recovery of the undivided share.

If a decree-holder takes in execution, land not included in the decree or in excess of the decree, the judgment-debtor must apply under this Section for recovery of such land and a separate suit is not maintainable. The cases upholding this view have been mentioned on page 181 of Mulla's Civil Procedure Code (12th Edition). Here the position is that the judgment-debtor does not want redelivery as according to him he is still in possession. What he prays for is a declaration that the order for delivery of a specific plot of land and the record o delivery have to be declared void and inoperative. Learned counsel for the appellant relied on the decision of the Supreme Court in Keshar Deo v. Radha-kissen, AIR 1953 S.C. 23 in support of his argument that the petition cannot be treated as one under Section 47. The question decided in that case was that an application for restoration of an execution petition dismissed for default could not be treated as one under Section 47. This decision has no application to the facts of this case.

4. The 12th defendant's petition is maintainable under Section 151 also. The execution court clearly acted without jurisdiction and committed a mistake in directing a delivery of a specific plot of land contrary to the terms of the decree. The court has inherent power to rectify its own mistakes. Again, the delivery kychit which is a record of the court is challenged as fraudulent. Even if the scope of the petition is limited to this question alone the court is competent to enquire into the same under Section 151, as every court has a duty to see that its records are properly and correctly maintained. Thus in any view of the case the decision of the lower appellate court regarding maintainability of the petition has to be confirmed.

5. The second question relates to limitation. This is not an application by the judgment-debtor for redelivery of land but one for a declaration that proceedings taken by the execution court are without jurisdiction. Such a petition falls under Article 181 of the Indian Limitation Act and the applicant has a period of three years for filing such an application. The 12th defendant's application is well 'within the period of 3 years and is not therefore barred by limitation.

6. In the result the decision of the lower appellate court is confirmed and the Second Appeal is dismissed with costs. The execution court is directed to give priority to this petition and to dispose of it as expeditiously as possible, posting it from day to day if practicable.


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