(1) The petitioners were the obstruction, against whom an order has been made by the Second Assistant Judge for removal of the obstruction. It would appear that originally, E. P. No. 543 of 1959 was filed for a delivery of possession. Obstruction was caused by these petitioners, and E. A. No. 1639 of 1959 was filed for the removal of obstruction. This application was made on 24-8-16-959. In the meantime however, these obstructors had apparently filed a suit, O. S. No. 2408 of 1959 for a declaration of the title to the property and for an injuction restraining the decree holder from executing the order for delivery that he had obtained in E. A. No. 1639 of 1959 referred to above. It is stated through it is borne out by the records, that an order of interim injuction was made towards the end of August 1959. That order appear to have been finally vacated only on 23-12-1959 when the suit filed by the obstructor was itself dismissed. In the meantime, however, E. P. No. 543 of 1959 which was the execution petition for delivery of the properties filed by the decree-holder, had been dismissed on 10-11-1959.
(2) Subsequently the decree-holder filed a fresh execution petition No. 137 of 1960, seeking delivery of possession after removal of the obstruction. This was resisted by the obstructor on the ground that this application had been made more than thirty days after the obstruction and the further E. P. No. 543 of 1959 itself having been dismissed, the present petition was maintainable. The learned second assistant Judge examined the question and came to the conclusion that, because of the injunction order that had been issued against the decree holder he had been prevented from taking steps within the period of thirty days and there was no question to the prior execution application having been dismissed. Through it is not quite clear, the learned Second Assistant Judge seems to have taken the view that the previous petition was still pending and E. P. No.137 of 1960 was not a fresh execution petition, but was a continuation of the prior petition, which must be deemed to be pending. He accordingly directed delivery of possession after removal of the obstruction. It is against this order that the present revision petition has been filed.
(3) The same contentions have been pressed before me. From what I have stated earlier it is quite clear that, on the obstruction caused by the application (E. A. No. 1639 of 1959) for removal of obstruction was in fact filed within 30 days. Learned counsel for the petitioners, however, urges that, whatever the reasons might be, E. P. No. 543 of 1959 was itself dismissed for default. He no doubt, concedes that, on the date on which that petition was dismissed by the court against the decree-holder was operative and that the decree-holder could not take any steps in proceedings with the application that he had made. Nevertheless according to him, since the fact that an interim injunction was in force the decree-holder was not brought to the notice of the Court, the order of the Court dismissing the petition for default was final and that would mean that the execution application for the removal of obstruction also stood dismissed. The question is whether this view is correct.
(4) Reliance has been placed upon certain observations in Sundaramma v. Abdul Khader, 37 MLW 607 : (AIR 1933 Mad 418). There it was laid that the principle of revival of an earlier execution petition could not apply as the prior application was dismissed for the default of the decree-holder and the revival theory could apply only if the earlier petition was dismissed not owing to the default of the decree-holder had no control and which has since been removed. That was a case where, pending certain execution proceedings on foot of a mortgage decree the mortgage itself was found to be invalid and not binding in another suit. Notwithstanding such a finding in another suit there was no doubt that the decree on fot of the mortgage was not immediately affected. Nevertheless steps for proceeding with this execution petition and his petition was dismissed for default.
The learned Judge (Sundaram Chetti, J.,) in dealing with this point observed at p. 613 (of Mad LW) : (at. 421 of AIR)
' It may contented with some show of reason that even in the absence of an injunction restraining the sale of the properties in execution of the mortgage decree..............................the declaration of the invalidity of that mortgage would be an obstacle to pursue the execution of the mortgage decree by seeking to sell the mortgaged properties. I am not, however, dealing with that point.'
It is obvious that the mere fact that some cloud had been cast on that mortgage and its validity in another suit, would not have affected the executability of the decree which had been obtained on the mortgage. Apparently the decree-holder thought that it might, and that is why he did not proceed further with the execution of the mortgage decree and allowed his execution application to be dismissed for default. The fact that the decree-holder had not been restrained in any manner from proceeding with his execution application was commented upon as definitely establishing that the dismissal of the execution petition was for default of the decree-holder.
Learned counsel refers to the decision in Abdul Azim v. Chokkan Chettiar, 69 Mad LJ 821 : AIR 1935 Mad 803, where Ramesam J. observes that, where an application is made for the removal of obstruction more than thirty days after the date of obstruction, such a petition was barred by limitation and, as against the obstructor in such a case the decree-holder's remedy is only by way of regular suit. This decision would be relevant if it is held that a second execution petition for obtaining possession after removal of obstruction would not lie. But t such a petition would lie, then, the applicability of the above decision is some what doubtful.
As I have pointed out, in this case, an application for the removal of obstruction was infact filed within the time stipulated by law. The only question that arises here is whether that petition was disposed of properly, s that the same relief could not be asked by, way of another petition.
(5) In Kotayya v. Narayaa : AIR1944Mad60 Horwill, J., held that if there was a default in the prosecution of an application for delivery on account of some fault on the part of tghe auction purchaser, then, the dismissal of the application is a final order and definitely disposes of his application. If, however the petition has been closed and there had been no default by the auction purchaser, then, the petition for delivery must be deemed to be pending. The Learned Judge referred to earlier cases on the point and came to the conclusion that whether or not there was a default on the part of the decree-holder was the matter on which it would depend the finality or otherwise the order made upon the execution petition. The Learned Judge also pointed that the decree-holder is not bound to apply for removal of obstruction and may put in a fresh application for delivery. On the authority of this decision, even assuming that the earlier execution petition was dismissed, it does not appear to be incompetent for the decree-holder to apply afresh in E. P. No. 137 of 1960 for delivery free of obstruction.
(6) As I have pointed out, there was an injunction order against the decree-holder, and, on the date on which the execution petition was dismissed that injunction was operative. It was not by reason of any default on the part of the decree-holder that the petition can be said to have been dismissed. Factually, there was no default on his part. The mere circumstance that the existence of the interim injuction was not brought to the notice of the court which passed the order cannot negatived the fact that there was such an injuction order operative against the decree-holder. In that view, I would hold that the order of dismissal of E. P. No. 543 of 1959 and E. P. No. 1639 of 1959 was not based upon any default on the part of the decree-holder and that E. P. No. 137 of 1960 can be regarded as an application for revival of those execution proceedings. That, I feel, is the proper conclusion to be reached on a consideration f the facts in this case and on the basis of decisions I have referred to. The petition is accordingly dismissed with costs. Time or delivery: two months.
(7) Revision dismissed.