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Sivarama Tevar Vs. Kovil Arulanantham Pillai and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1898)8MLJ18
AppellantSivarama Tevar
RespondentKovil Arulanantham Pillai and anr.
Cases Referred and Thakur Prasad v. Fakirullah
Excerpt:
- .....execution stayed by the sub. court; petition struck off the file consequently,' thus the district munsif struck the petition off his file simply because execution had been temporarily stayed by the subordiuate court. the district munsif had no ligal authority to dismiss the petition simply because the execution had been stayed, nor did he in fact dismiss it. he struck it off his file, by which, we apprehend, he merely ceased to show it as pending in his statistical returns, but the petition not having been dismissed or otherwise legally disposed of must be regarded as still pending. this was the view taken by muihusamy iyer, j., in an exactly similar case in a. a. o. no. 34 of 1892, in which he followed the rulings of both the calcutta and bombay high courts. (biswa sonan v. binanda.....
Judgment:

1. The facts of the case are sufficiently stated by the District Judge, but we cannot agree with him in his conclusion that the District Munsif did in fact dispose of the application for execution, dated the 14th April 1893. The District Munsif's order on the petition is ' Execution stayed by the Sub. Court; petition struck off the file consequently,' Thus the District Munsif struck the petition off his file simply because execution had been temporarily stayed by the Subordiuate Court. The District Munsif had no ligal authority to dismiss the petition simply because the execution had been stayed, nor did he in fact dismiss it. He struck it off his file, by which, we apprehend, he merely ceased to show it as pending in his statistical returns, but the petition not having been dismissed or otherwise legally disposed of must be regarded as still pending. This was the view taken by Muihusamy Iyer, J., in an exactly similar case in A. A. O. No. 34 of 1892, in which he followed the rulings of both the Calcutta and Bombay High Courts. (Biswa Sonan v. Binanda Chunder, I. L. E. 10 C 417.

2. The next question is this: Are we bound to regard the present application for execution as a new application for execution, or may we regard it as in substance an application to continue the pending proceedings, i.e., the application of the 14th April 1893. In form it is a new application and the decision of the District Judge that it must be dealt with as such is based on the ruling in Narayana Nambi v. Pappi Brahmani, I.L. R. 10 M. 23 . Parker, J., was a party to that decision, but in a later case (C. M. A., 108 of 1895), be held that an application similar to that now in question might properly be regarded as an application in continuance of an earlier application and pointed out that in the case reported in I.L.R. 10 M. the application was to attach again the same property which had been released on an objection petition, but that in the case before him there had been no stoppage in the proceedings in execution. So in the present case we must hold that there has been no legal stoppage in the execution proceedings, and, therefore, the case in I.L.R. 10 M. is not applicable. This view is in accordance with the decisions in Chandra Prodhan v. Gopi Mohun Shaha, I.L.R. 14 C, 385 ; Chintaman v. Balhastri, Ib. 16 B., 294 and Thakur Prasad v. Fakirullah, Ib. 17 A., 106.

3. For these reasons, we consider that the present application may be properly regarded as one in continuance of the application of the 14th April 1893, which is still legally pending before the District Judge.

4. We must, therefore, set aside the order of the District Judge and restore that of the District Munsif with costs in this and in the lower appellate Court.


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