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Chidambaram Chettiar Vs. Periyasamy Chettiar - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai High Court
Decided On
Case NumberCivil Revn. Petn. No. 1598 of 1974
Judge
Reported inAIR1978Mad370
ActsLimitation Act, 1963 - Schedule - Article 136; Code of Civil Procedure (CPC) - Order 21, Rule 66
AppellantChidambaram Chettiar
RespondentPeriyasamy Chettiar
Appellant AdvocateV.C. Viraraghavan, Adv.
Respondent AdvocateS. Balathandapani, Adv.
DispositionPetition allowed
Cases ReferredMarudanayakam Pillai v. Krishna Sami Naidu
Excerpt:
- - munsif, dindigul, before whom the above proceedings were instituted passed orders and from the original order endorsed on the execution petition, though there is difficulty in deciphering it, i find that the order reads- no bidders at the sale on 28-3-1973. no steps......proper construction of the order passed by the court below on 31-3-1973. it must be held that the present application is only for revival of the execution proceedings and it cannot be stated that the present application is a fresh application for execution so as to attract the provisions of the limitation act. the learned counsel relies on a dictum of a division bench of this court consisting of leach c. j. and krishnaswami aiyangar j. in sivasubramaniam chettiar v. murugesan mudaliar : air1940mad566 . it has been recognised by the division bench that where there are no bidders at the auction, the dismissal of the application is unlawful and the fact that there are no bidders on one occasion did not prevent the decree-holder from asking the court in the same proceedings to put up the.....
Judgment:

Nainar Sundaram, J.

1. This revision arises out of execution proceedings. The petitioner herein is the decree-holder. The respondent herein is the judgment-debtor. Thedecree in question is dated 29-4-1961. Earlier, E. P. 1050 of 1972 was filed for sale of the properties and on 31-3-1973, the Dist. Munsif, Dindigul, before whom the above proceedings were instituted passed orders and from the original order endorsed on the execution petition, though there is difficulty in deciphering it, I find that the order reads-

'No bidders at the sale on 28-3-1973. No steps. E. P. dismissed. The attachment to continue.'

Both the counsel for the petitioner and the respondent concede that the above is the correct version of the order passed by the Court below on 31-3-1973. On 27-7-1973 the petitioner herein filed a petition under Order 21, Rule 66 C.P.C. to bring the properties for sale. His application was contested by the judgment-debtor (respondent herein) on the ground that the present petition is barred by limitation since twelve years have lapsed from the date of the decree. This contention has been upheld by the court below and the petition has been dismissed. The present revision is directed against the order of the court below.

2. Mr. V. C. Veeraraghavan, learned counsel for the petitioner, submits that on a proper construction of the order passed by the court below on 31-3-1973. it must be held that the present application is only for revival of the execution proceedings and it cannot be stated that the present application is a fresh application for execution so as to attract the provisions of the Limitation Act. The learned counsel relies on a dictum of a Division Bench of this court consisting of Leach C. J. and Krishnaswami Aiyangar J. in Sivasubramaniam Chettiar v. Murugesan Mudaliar : AIR1940Mad566 . It has been recognised by the Division Bench that where there are no bidders at the auction, the dismissal of the application is unlawful and the fact that there are no bidders on one occasion did not prevent the decree-holder from asking the court in the same proceedings to put up the property for sale at a later date. The Division Bench observed as follows:--

'It has been decided over and over again that an application in execution which is necessitated by the action of the court in striking off a previous application for execution is not in law afresh application, but must be taken to be an application to revive or continue the former application.'

Another Division Bench of this court consisting of Kamachandra Iyer C. J. and Kunharned Kutti J. in Marudanayakam Pillai v. Krishna Sami Naidu : AIR1963Mad127 had dealt with a case of similar nature and the Division Bench held that the petition filed for identical relief was for revival of the old petition, which was in accordance with law, and therefore no question of limitation arose.

3. If an execution petition is dismissed for statistical purposes, there being no adjudication of the rights of the parties on merits or there being no disposal, of the contentions of the parties conclusively, such an order is not a final order and must be deemed to be an order passed for statistical purposes. Such being the case, a fresh application filed must be deemed to be one for revival or continuance of the former applications. The order in the present case significantly directs the attachment to continue. Hence it can be safely concluded that the said order is an order passed for statistical purposes. In this view also, it cannot be stated that the present application is a fresh application for execution and, in my view, it can be deemed to be only an application for revival or continuance of the prior proceedings.

4. Keeping the above principles in mind, I find that the court below has not appreciated and applied them to the facts of the present case; and if so applied, there will not be any difficulty in coming to the conclusion that the present application is one for revival and renewal of the earlier application and there is no question of limitation involved. The order of the court below cannot be upheld in law and accordingly this revision petition is allowed and the order of the court below is set aside and the execution petition filed by the petitioner will be numbered and will be prosecuted and disposed of in accordance with law. There will be no order as to costs in this revision.

5. Petition allowed.


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