IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 29/06/2004
Coram
The Honourable Mr. Justice T.V. MASILAMANI
C.R.P.(NPD) No.1472 of 1997
S.Nagarajan .. Petitioner
-Vs-
#1. Gudlu K.Ranagasamy Chettiar @ Rangasamy (Deceased)
2. Kannammal
3. R. Mohanraj
4. R. Soundarajan
5. R.Sivaraj
6. R.Manoharan
7. R.Balavarthi Raju
8. R.Murugarajan
9. R.Vijayakumar .. Respondents
[R2 to R9 brought on record as L/Rs. of the
deceased sole respondent - (vide) order dated 12.9.2003
in C.M.P.Nos.13486 to 13488 of 2002]
Civil Revision Petition against the fair and decretal orders dated 2
2.7.1996 passed in E.P.No.286 of 1993 in O.S.No.88 of 1962 on the file of the
II Additional Subordinate Judge, Coimbatore.
!For Petitioner : Mr.V.Raghavachari
^For Respondents : Mr.B.T.Seshadri
:O R D E R
This revision is filed by the petitioner/third party in the execution
petition initiated against the fair and decretal orders passed in E.P.No.286
of 1993 in O.S.No.88 of 1962 dated 22.7.1996 on the file of the II Additional
Subordinate Judge, Coimbatore.
2. The revision petitioner/third party filed the execution petition
in E.P.No.286 of 1993 on the file of the II Additional Subordinate Court,
Coimbatore on the basis of the registered sale deeds dated 7.10.1992 and
31.3.1993 executed by the 13th defendant in the suit on the ground that he has
stepped into the shoes of his vendor and that therefore the possession of the
properties purchased by him has to be delivered by the respondent/9th
defendant in suit as per the final decree. The respondent resisted the
execution proceedings by filing a counter and after analysing the evidence of
both the parties and upon hearing the arguments advanced by them, the learned
Subordinate Judge dismissed the execution petition without costs. Hence, the
revision.
3. The facts leading to the filing of the revision petition may be
stated briefly as under: In the suit for partition in O.S.No.88 of 19 62, the
final decree was passed in I.A.No.563 of 1996 on 27.9.1966 on the file of the
Subordinate Judge, Coimbatore and the properties mentioned in the schedule to
the execution petition were allotted to the 13th defendant, deceased husband
of Konammal who sold the said properties to the revision petitioner herein
under the said registered sale deeds. After the death of the 13th defendant,
his wife Konnmmal filed the execution petition in E.P.No.206 of 1982 against
the 9th defendant for delivery of possession of the properties as per the
final decree. While so, the executing court passed an order dated 19.10.198 4
on merits directing the 9th defendant to deliver vacant possession of the
petition mentioned properties to the petitioner, the said Konnammal.
4. The respondent being aggrieved by such order, preferred the
revision petition in C.R.P.No.4809 of 1984 on the file of this Court which had
been allowed by setting aside the impugned order and the matter was remitted
back to the executing court on 16.7.1985 for fresh disposal. Subsequently,
the execution petition was posted for hearing and in the course of the
proceedings, an endorsement was made by the counsel for the petitioner as well
as by the petitioner on 29.7.1986 that the execution petition may be closed
for the present and therefore the execution petition was dismissed as not
pressed on 29.7.1986.
5. The revision petitioner preferred the execution petition in E.P.
No.286 of 1993 on 2.12.1993. The respondent/9th defendant resisted the
petition on the ground that under Article 136 of the Limitation Act, the
execution petition was barred by limitation and that therefore the same was
liable to be dismissed. The learned Subordinate Judge having analysed the
facts and evidence came to the conclusion that the execution petition should
have been reviewed within 12 years from the date of the appellate decree made
on 23.12.1976, (i.e.,) on or before 23.12.1988 and that since the petition was
filed on 2.12.1993, the same was barred by limitation. Hence, he dismissed
the execution petition.
6. The learned counsel for the petitioner has argued at the outset
that the disposal of the execution petition on the basis of the endorsement
made by the petitioner therein cannot be said to be a final order and that
since such disposal was made for statistical purpose, the order passed by the
Executing Court has not become final. In this context, he has placed reliance
on the decision rendered by the Apex Court, VENKANNA v. BANGARAJAU (AIR 1964
S.C. 1454) wherein (vide) paragraph 6, the dictum was laid as under:-
“It is true that Courts have condemned the practice of executing courts using
expressions like “closed”, “closed for statistical purposes”, “struck off”,
recorded”, etc., and they also pointed out that there was no provision in the
Code of Civil Procedure for making such orders: but assuming that the Court
has no such power, the passing of such an order cannot tantamount to an order
of dismissal, for the intention of the court in making an order “closed” for
statistical purposes is manifest. It is intended not to finally dispose of
the application, but to keep it pending. Whether the order was without
jurisdiction or whether it was valid, the legal position would be the same; in
one case it would be ignored and in the other, it would mean what it stated.
In either case the execution petition would be pending on the file of the
court. That apart, it is not the phraseology used by the executing court that
really matters, but is really the substance of the order that is material.
Whatever terminology may be used, it is for the court to ascertain, having
regard to the circumstances under which the said order was made, whether the
court intended to finally terminate the execution proceedings. If it did not
intend to do so, it must be held that the execution proceedings were pending
on the file of the court.”
7. Similarly, he has argued that the appropriate provision of law
under the Limitation Act, 1963 is Article 136 which governs execution of the
decree or order directing delivery of a immovable property within 12 years
from the date when the decree or order become enforceable. It is appropriate
to extract the said provision of law hereunder to appreciate the facts of the
case:-
For the execution of any decree (other than a decree granting a mandatory
injunction) or order of any Civil Court
Twelve years
When the decree or order becomes enforceable or where the decree or any
subsequent order directs any payment of money or the delivery of any property
to be made at a certain date or at recurring periods when default periods when
default in making the payment or delivery in respect of which execution is
sought takes place:
Provided that an application for the enforcement or execution of a decree
granting a perpetual injunction shall not be subject to any period of
limitation.
8. The learned counsel for the petitioner has further cited the
decision rendered by a Division Bench of this Court consisting of K.A. SWAMI,
Chief Justice and Dr. AR.LAKSHMANAN,J., (as then they were leading the Bench)
in KARUPPANNA GOUNDER v. NAGAMMAL ((1996 (II) M.L.J. 470 ) and it was held
in paragraph 5 as follows:-
“Article 136 of the Limitation Act is a specific Article requiring all
applications for the execution of decrees and orders of courts. There might
be a succession of execution applications within the period prescribed by this
Article.”
9. Similarly, the decision rendered by RATINAM, J. (as he then was)
in PUKURAJ RATANJEE v. GANESH MULL ADAJI (1983 (I) M.L.J. 443) had been
referred to in the said Division Bench decision and ultimately, it was held
(vide) paragraphs 9 and 10 that the impugned execution petition having been
filed within a period of 12 years from the respective dates on which earlier
orders for delivery was made, it cannot be said that the said application is
barred by limitation under Article 136 of the Limitation Act, 1963.
10. Hence, the learned counsel for the petitioner has argued rightly
on the basis of the ratio laid down in the said decision that in view of the
order for delivery of the property as per final decree made by the executing
court on 19.10.1984 in E.P.No.206 of 1982 in O.S.No.88 of 1962 on the file of
the II Additional Subordinate Judge, Coimbatore, the execution petition in
E.P.No.286 of 1993 had been filed within 12 years and that therefore in view
of Article 136 of the Limitation Act, 1963, the said execution petition is not
barred by limitation.
11. Even otherwise, the learned counsel for the petitioner has
contended that since the previous execution petition in E.P.No.206 of 1982 was
not disposed of finally either on merits or on account of latches on part of
the petitioner therein, the same should be held as pending despite the order
of closure passed by the executing Court on 29.7 .1986 as per the ratio laid
down by the Hon’ble Supreme Court in AIR 1964 S.C. 1454 referred supra. A
careful reading of the said decision in the light of the facts involved in the
said execution proceedings, this Court is of the considered view that the
ratio is applicable to the facts of this case. Hence, I am constrained to
hold that since the previous execution petition in E.P.No.206 of 1982 was not
disposed of on merits, the same should be held to be pending so as to enable
the petitioner to work out his rights under appropriate provisions.
12. Though the learned counsel for the respondent has relied on the
decision DURAISAMI v. RASAYAMMAL (1995 (II) M.L.J. 574) in support of his
contention that the execution petition filed beyond 12 years from the date of
decree is barred by limitation as per the provision under Article 136 of the
Limitation Act, 1963, as has been rightly pointed out by the learned counsel
for the petitioner, the facts involved in the said case are different from
that of the proceedings under consideration herein. It is relevant to point
out that the last execution petition in the case involved in the said decision
was dismissed for failure on the part of the decree-holder to file the sale
papers and therefore such an order cannot be taken advantage of by the
decree-holder so as to claim exemption from limitation.
13. On the contrary, in this case, as pointed out above, the impugned
order was not passed in the previous execution petition either on merits or on
account of default on the part of the petitioner therein. It follows
necessarily that the ratio enunciated in the said decision cited by the
learned counsel for the respondent is not applicable to the facts of the
present case.
14. For the reasons stated above, this revision petition is allowed
setting aside the impugned order in E.P.No.286 of 1993 dated 22.7.199 6.
However, there will be no order as to costs. The Executing Court is directed
to dispose of the petition in accordance with law within three months from the
date of receipt of copy of this order.
Index: Yes
Website: Yes
dpp
To
1. The II Additional Subordinate Judge, Coimbatore.
2. The Section Officer, V.R.Section, High Court, Madras.