Judgment:
ORDER
S.S. Satheesachandran, J.
1. The revision is directed against the order passed by the Execution Court entertaining an application moved by the decree holder treating that petition as a continuation of a previous E.P., which was earlier dismissed, and ordering delivery of the decree schedule property.
2. The basic facts involved are not in dispute. The 1st respondent obtained a decree in O.S. No. 150/65 on the file of the Munsiff Court, Thiruvananthapuram for a declaration of title and possession over 8 cents of property in Survey No. 365 of Chenganacherry village, Thiruvananthapuram with direction to the defendant to remove at his expense a wooden shed in that property, failing which the decree holder was allowed to get the shed removed through court and obtain delivery of the property. The decree also provided mesne profits at the rate of Rs. 50A from the date of suit till delivery of possession to the decree holder. The decree was put in execution by the 1' respondent/decree holder as E.P. 705/77. He passed away on or about 28.3.1985. His heirs and legal representatives were substituted in the execution petition as additional decree holders 2 to 6 and they are respondents 2 to 6 in the revision. Againsed the decree passed by the trial court, there was first and second appeals, both were dismissed During the pendency of such appeals, there was also stay of executing the decree by orders passed by the respective appellate courts. The second appeal was dismissed on 4.11.1981. Meanwhile, the judgment debtor moved an application before the Land Tribunal claiming the benefits under the Land Reforms Act over the property covered by the decree in which the owner of the property was shown as a different person. The Land Tribunal allowed that application ordering issue of a purchase certificate. The decree holder challenged that proceedings before the Appellate Authority and the purchase certificate ordered was cancelled by that authority. The judgment debtor by that time suffered another decree passed in O.S. No. 274/82. Pursuant to the execution of that decree, a sale certificate in respect of the property covered by the decree in O.S. No. 150/65 as well was issued in favour of that decree holder. The revision petitioner purchased the property in auction. Respondents 1 to 5 fled a second execution petition on or about 11.9.2001. The revision petitioners were impleaded as respondents 16 and 17 in that petition. They filed objections impeaching the maintainability of the execution petition, inter alia, contending that it was barred by limitation. Objections raised by the revision petitioners were rejected by an order dated 6.9.2005 ordering delivery of the property to the decree holders after removing the structures. Against that order, the petitioners moved an appeal as A.S. No. 301/05. The appellate court found die appeal not maintainable by an order dated 5.10.2005 in which the merit of the matter was also considered. The petitioners preferred a second appeal as Ex.S.A. No. 17/05 before this Court. That appeal was disposed of by judgment dated 13.6.2008 holding that the appellate court was not correct in entering into the merit of the matter when the appeal was found not maintainable. The appeal was disposed without prejudice to the rights of the appellant for appropriate relief by way of revision or otherwise, if so advised. Pursuant thereto, the petitioners moved a revision with a petition to condone delay of the period, the first and second appeals were prosecuted seeking exemption for such period under Section 14 of the Limitation Act. This Court by order dated 13.11.08 dismissed the delay petition holding that Section 14 of the Limitation Act has no application, consequently, the revision was also dismissed. Against that order, the petitioners filed S.L.P. before the apex court Leave was granted by the apex court and the appeal preferred against the order was allowed setting aside the order dated 13.11.2008 previously passed in the revision and the matter was remitted to this Court for consideration on merits. Accordingly, the revision has again come up for consideration before mis court.
3. I heard the learned senior counsel Sri. T. Krishnan Unni appearing for the revision petitioners and the learned Counsel Sri. P. Chandrasekhar for respondents 2 to 6/the additional decree holders. The execution petition filed on 11.9.01 after the dismissal of the previous execution petition on 8.7.06 was hopelessly barred by limitation and the court below went wrong in entertaining the second execution petition as an application for revival of the earlier execution petition and ordering delivery of the property, submits the learned Counsel for the petitioners. Reliance placed by the court below in Mary George v. Zacharia Kuriakose 1988 (1) KLT 345 was also attacked by the learned Counsel for the s; petitioners contending that in that case a review sought for by the decree holder was perfectly entertainable as the court had dismissed the previous execution petition by mistake holding that the decree holder had not taken steps for remitting bata fixed though he had already remitted the bata. So must so, it cannot be stated, according to the counsel, that the decision is an authority that if a previous execution petition is not disposed of by ajudicial order, it can be revived at a subsequent stage whatever be the lapse of time after the dismissal of the previous application. The learned Counsel for the petitioners relied on Pentapati China Venkanna and Ors. v. Pentapati Bangararaju and Ors. : AIR 1964 SC 1454, David Varghese v. Madhavan 1986 KLT 922, K.P. Kallani Amma v. M. Narayanikutty Amma 1986 KLT 25 (Page 14) and Rajammal v. State Bank of Mysore 1992 (2) KLT 321 to contend that the second execution petition moved by the decree holders was a fresh application beyond the period of 12 years from the date of the decree and it cannot be treated as a continuation or to revive the previous execution petition, which was dismissed by order dated 8.7.1996. On the other hand, the learned Counsel appearing for the decree holders contended that the dismissal of the previous execution petition E.P. No. 705/77 was not by a judicial order, but only a closing of the petition which should be treated as one passed by the court for statistical purpose. So long as a judicial order as to the satisfaction of the decree executed has not been passed by the court mere dismissal of the execution petition will not debar the right of the decree holder to seek execution of the decree and in that case, according to the counsel, it is only a revival of the previous execution petition and there is no bar of limitation. The learned Counsel for the petitioners placed reliance on Koran Kuriakkose v. Chacko Joseph 1958 KLT 322, Perimal Narayani v. Velayudhan Ramakrishnan 1965 KLT 759, Anandilal and Anr. v. Ram Narain and Ors. : AIR 1984 SC 1383, Mary George v. Zacharia Kuriakose 1988 (1) KLT 345, T.S. Lakshmikutty Amma v. Oommen Ninan 1992 (2) Kar LJ 923 and Deep Chand and Ors. v. Mohan Lal : 2000 (6) SCC 259 to contend that where there was no judicial order evincing application of mind of the court in disposing of an execution petition but only a dismissal for default or ordering closing of the petition, it has to be considered only as ministerial order and such order does not bar the right of the decree holder to move a fresh application for executing the decree. In such cases, according to the teamed counsel for the petitioners, the bar of limitation has no application.
4. The first and foremost question emerging for consideration is what was the order passed by the court while dismissing the previous application E.P. No. 705/77 when it was dismissed on 8.7.1996. Both aides do not have any dispute that the order was to the effect 'No representation. No steps taken. Execution petition dismissed.' Whether the above order amounted to a closing of the execution petition which can be termed as a ministerial order or a judicial order is the question to be considered for resolving the controversy presented in fie proceedings. In this context, it is appropriate to take note of the law laid down by the apex court in Pentapati China Venkanna and Ors. v. Pentapati Bangararaju and Ors. : AIR 1964 SC 1454 after critical analysis of all the judicial pronouncements till then expressing conflicting views as to whether a second execution petition is entertainable 12 years from the dale of the decree after dismissal of a previous application for executing the decree. The apex court has held thus:
An application made after 12 years from the date of the decree would be a fresh application within the meaning of Section 48 of the Code of CMI Procedure, if the previous application was finally disposed of. It would also be a fresh application if it asked for a relief against parties or properties different from those proceeded against in the previous execution petition or asked for a relief substantially different from that asked for in the earlier petition.
In examining the question whether the dismissal of the previous application was intended to finally dispose the application or for statistical purpose or ministerial order the apex court has farther held as follows:
It is not the phraseology used by the executing court that really matters, but it 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 Vie court.
5. So much so, the order passed in the previous execution petition has to be examined, not as interpreted or desired by the rival sides, but with reference to the question whether by passing such order the court intended to finally terminate the execution proceedings or not. In this connection, the observations made by His Lordship Justice K.T. Thomas, as His Lordship then was, in George v. Zacharia Kuriakose 1988 (1) KLT 345, which has been relied by the court below to hold that the dismissal of the previous execution petition was not by a judicial order, and further pressed into service before me as well by the learned Counsel for the decree holder to sustain the impugned order, assumes much significance His Lordship in the above decision has observed thus:
It is axiomatic that an execution petition must be deemed to be pending so long as no final order disposing it of judicially has been passed thereon. The answer to the question whether an execution petition has been finally disposed of or not depends upon the facts and circumstances of the particular case. If the dismissal of the previous execution petition was due to decree holder's ' default, the principle of revival has no application. Though the converse is not the whole gannet of law on the point, the party whose execution petition happened to be dismissed for default can inform the court that there was no laches on his part or that he was not at fault. If the court is satisfied of the decree holder's stand on that score, there is nothing wrong in treating the previous petition, as pending.
6. Essentially, the answer to the question whether the previous execution petition has been finally disposed of or not by the order passed by the court depends on the facts and circumstances of the particular case and if the dismissal was on account of the default of the decree holder the principle of revival has no application. I have already adverted to the order passed by the court dismissing the previous application which is indicative that it was dismissed for non taking of steps by the decree holder, The decree holder has no case that the default attributed by him under the order as to a non taking of steps which resulted in the dismissal order of the court was not correct Further more, it is an undisputed fact that whatever proceeding pending in relation to the challenge raised against the execution of the decree covered by the execution petition was no longer pending as on the date of dismissal of that execution petition on 8.7.1996. The last revision petition having a bearing over the executability of the decree had been dismissed by order dated 2.3.1995. It was 14 months thereafter the execution petition No. 705/77 was dismissed and on that date there was no stay or injunction interdicting the execution of the decree. Not only that there was no representation from the decree holder on the date of hearing of the execution petition which was also noticed by the court with me default of non-taking of steps, and consequently, the execution petition was dismissed. The order was that there was no representation and no steps taken, remain uncontroverted, which in unmistakable terms lead only to the irresistible conclusion that there was default on the part of the decree holder and that resulted in the dismissal of the execution petition. When that be so, it is a clean case of dismissal of the previous execution petition was due to decree holder's default, and the principle of revival has no application. The principle laid down in David Varghese v. Madhavan 1986 KLT 922 and K.P. Kalliani Amma v. M. Narayanikutty Amma 1986 KLT 25 (Page 14) apply with full force to the facts of the case and the decree holder's submission that the dismissal of the previous execution petition was not by a judicial order but only a ministerial order has no merit at all.
7. The judicial pronouncements canvassed by the decree holder in the given facts of the case have no applicability and lend no assistance to show that the execution petition moved by them as E.P. No. 472A)7 on 11.1.2001 was only a revival petition to take back E.P. No. 705/77, and it was still pending on the file of the court despite its dismissal on 8.7.1996. In Koran Kuriakkose v. Chacko Joseph 1958 KLT 322, the previous execution petition filed without process fee was rejected the very next day for nonocuring the defect, but, without giving any posting or notice to the decree holder for payment of the process fee. In that context, it was held that the dismissal of that application was not a judicial disposal and the application must be deemed to be pending. Similarly, in Perumal Narayani v. Velayudhan Ramakrishnan 1965 KLT 759, the dismissal of the execution petition was for nonpayment of process fee which was ordered by the court on a day apparently in Chambers and not in open court without an order posting the case. The dismissal of the execution petition was, therefore, treated as a ministerial disposal as the decree holder was not really guilty for nonpayment of process fee of which he was not given notice. The facts given in the above two reported cases have no connection or parallel with the present case. In T.S. Lakshmikutty Amma v. Oommen Ninan 1992 (2) KLJ 923, the question involved was whether the decree holder was entitled to claim execution of the time during which the judgment debtor claimed the relief under the Debt Relief Act, by filing a petition under that, Act with the provisions thereof making the payment irrecoverable for certain period under the provisions of Section 14 of the Limitation Act. He was found entitled to such an exclusion under the provisions under Section 14 of the Limitation Act was the view taken by this Court in the above decision. That decision also has no application to the present case, In Rajammat v. State Bank of Mysore 1992 (2) KLT 321, the facts would disclose that the decree holder moved an application to amend the execution petition which was fried within time, to claim interest for the entire principal amount which was omitted when the execution petition was presented. The decree was one for recovery of money with interest by sale of immovable properties and this Court taking notice that no new relief was asked other than what was already stated in the execution petition held that the amendment application cannot be considered as a fresh application for consideration. That decision also has no application to the present case. In Deep Chand and Ors. v. Mohan Lal : 2000 (6) SCC 259, relied by the learned Counsel for the decree holders related to execution of a decree passed in a suit for specific performance which provided that the decree for possession of land become enforcible only after the execution of the sale deed by the judgment debtor. The decree was challenged in appeal by the judgment debtor and it was dismissed the judgment debtors to pay the sum fixed to the decree holder, and if the sum fixed was paid to the decree holder, then the suit would stand dismissed. The judgment debtor committed default in making instalments and, finally, the sale deed was executed by him much later. In that case, where the decree provided for the enforceability of the decree for possession only after execution of the sale deed; it was held that the execution petition moved, within the period after such execution of the deed but not from the date of the decree was within time. The learned Counsel for the decree holder has placed emphasis on the observations made in that decision to contend that a rational approach to be taken in the execution of the decrees and an execution petition should not be dismissed unless it is established, beyond doubt, that it is barred by limitation. The observations of the apex court in the decision relied by the counsel read thus:
The purpose of execution proceeding is to enable the decree holder to obtain the fruits of his decree. In case where the language of the decree is capable of two interpretations, one of which assists the decree holder to obtain the fruits of the decree and the other prevents him from taking the benefits of the decree, the interpretation which assists the decree holder should be accepted. The execution of the decree should not be made futile on mere technicalities which does not, however, mean that where a decree is incapable of being executed under any provision of law it should, in all cases, be executed notwithstanding such bar or prohibition. A rational approach is necessitated keeping in view the prolonged factum of litigation resulting in the passing of a decree in favour of a litigant. The policy of taw is to give a fair and liberal and not a technical construction enabling the decree holder to reap the fruits of his decree. As a general rule the executing court should not find ways to dismiss the execution application as barred by time unless it is established, beyond doubt, that such an application was beyond limitation.
I am afraid that the decision also does not lend any assistance to the decree holder which was made in relation to the interpreting of the language of a decree when it is capable giving more than one interpretation, one assisting the decree holder to reap the fruits of the decree and the other preventing him from taking the benefits of the decree. In such a case, the apex court has held the court should lean in favour of tie decree holder and accept the interpretation which is favourable to him. In that context, it has been observed that the court should not find ways to dismiss the execution petition as barred unless it Is established beyond doubt that the application is barred by limitation.
8. In a case where the facts presented clearly demonstrate that the execution petition presented after the dismissal of the previous execution petition years back that too on' the basis of a judicial order consequent to the default of the decree holder in prosecuting the petition, is barred by time, the indubitable conclusion has to be formed that the second.
Reversing the order of the court below, impugned in the revision, and ordering the rejection of E.P. No. 472/01 in O.S. No. 150/65 as barred by limitation, the revision is allowed directing both sides to suffer their costs.