IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 26TH MARCH 2010 / 5TH CHAITHRA 1932 CRP.NO. 756 OF 2008() --------------------- {IN EP 80/1979 IN OS.67/1957 OF THE IIND ADDITIONAL MUNSIFF'S COURT, NEYYATTINKARA} .................... REVN. PETITIONER(S): ADDITIONAL THIRD DECREE HOLDER -------------------------------------------------------------------- SIVAN PILLAI, SADASIVAN NAIR, M.S.BUNGLOW, PUNNAKKULAM, KOTTUKAL DESOM, KOTTUKAL VILLAGE. BY ADV. SRI.P.B.SURESH KUMAR SRI.LEO GEORGE RESPONDENT(S): JUDGMENT DEBTORS 5,8 TO 13 & 15 TO 27. ----------------------------------------------------- 1. PADMANABHA PILLAI AYYAPPAN PILLAI, AYANIVILA PUTHEN VEEDU, KOTTUKAL, THIRUVANANTHAPURAM-695501. 2. KAMALLAMMA PILLAI RADHAMMA PILLAI, PALLIVILAKATH VEEDU, KOTTUKAL, THIRUVANANTHAPURAM-695501. 3. RADHAMMA PILLAI VALSALA, PALLIVILAKATH VEEDU, KOTTUKAL, THIRUVANANTHAPURAM. 4. VELAYUDHAN NAIR VENU, PALLIVILAKATH VEEDU, KOTTUKAL, THIRUVANANTHAPURAM. 5. VELAYUDHAN NAIR MURALI, PALLIVILAKATH VEEDU, KOTTUKAL, THIRUVANANTHPURAM-695501 6. REDHAMMA PILLAI VANAJAM, PALLIVILAKATH VEEDU, KOTTUKAL, THIRUVANANTHAPURM-695501 CRP.NO. 756 OF 2008() :: 2 :: 7. VELAYUDHAN NAIR MURUGAN, PALLIVILAKATH VEEDU, KOTTUKAL, THIRUVANANTHAPURAM-695501. 8. KOCHAPPI NADAR KRISHNAN NADAR, THANNININNA KUZHIYANVILA PURAYIDOM, CHOWARA, KOTTUKAL VILLAGE, THIRUVANANTHAPURAM-695501 9. RAMAN PILLAI SIVASANKARA PILLAI, PULLARIVILAKATH VEEDU, PANDARAVILA, KOTTUKAL, THIRUVANANTHAPURAM-695501. 10. CHELLAPPAN PILLAI ALIAS RAMAN PILLAI AYYAPPAN PILLAI, PULLARAVILAKATH VEEDU, PANDARAVILA, KOTTUKAL, THIRUVANANTHAPURAM-695501. 11. SIVASANKARA PILLAI MANIKANTAN NAIR, PULLARAVILAKATH VEEDU, PANDARAVILA, KOTTUKAL, THIRUVANANTHAPURAM-695501 12. KALYANI PILLAI KARTHI PILLAI, PULLARAVILAKATH VEEDU, PANDARAVILA, KOTTUKAL, THIRUVANANTHAPURAM-695501 13. RAMAN PILLAI PARAMESWARAN NAIR, PULLARAVILAKATH VEEDU, PANDARAVILA, KOTTUKAL, THIRUVANANTHAPURAM-695501 14. KARTHYAYANI PILLAI KAMALAMMA PILLAI, PULLARAVILAKATH VEEDU, PANDARAVILA, KOTTUKAL, THIRUVANANTHAPURAM-695501 15. KARTHYAYANI PILLAI OMOANA AMMA, PULLARAVILAKATH VEEDU, PANDARAVILA, KOTTUKAL, THIRUVANANTHAPURAM-695501 16. KARTHYAYANI PILLAI KALYANI PILLAI, PULLARAVILAKATH VEEDU,PANDARAVILA, KOTTUKAL, THIRUVANANTHAPURAM-695501 17. JANAKI PILLAI PONNAMMA PILLAI, PULLARAVILAKATH VEEDU, KOTTUKAL VILLAGE, THIRUVANANTHAPURAM-695501 CRP.NO. 756 OF 2008() :: 3 :: 18. M.SEELAMMA, CHARUVILA VEEDU, PULINKUDI, KOTTUKAL VILLAGE, THIRUVANANTHAPURAM-695501 19. SUGANDA, CHERUVILA VEEDU, PULINKUDI, KOTTUKAL VILLAGE, THIRUVANANTHAPURAM-695501 20. DEEPA, CHERUVILA VEEDU, PULINKUDI, KOTTUKAL VILLAGE, THIRUVANANTHAPURAM-695501. R1 TO R7 AND R9 TO R17 ARE DELETED FROM THE PARTY ARRAY AT THE RISK OF THE PETITIONER AS PER ORDER DT. 16.7.2009 ON I.A.NO.1216/09 R8 BY ADV. SRI.R.D.SHENOY, SENIOR ADVOCATE & SRI.S.VINOD BHAT R18 BY ADV.SRI.SREEKANTH S.NAIR R19 BY ADV.SRI.T.KRISHNAN UNNI, SENIOR ADVOCATE & SRI.C.M.MOHAMMED IQUABAL R20 BY ADV.SRI.R.T.PRADEEP THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17/12/2009, THE COURT ON 26/03/2010 PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. -------------------------------------------- C.R.P.NO.756 OF 2008 -------------------------------------------- Dated this the 26th day of March, 2010 O R D E R The assignee decree holder, in a suit for redemption has filed this revision challenging the order of the execution court, (Additional Munsiff's Court, Neyyattinkara), dismissing his execution petition holding that he is not competent to execute the decree. 2. The factual back ground giving rise to the present revision, can be summed up as hereunder: The decree sought to be executed by the assignee decree holder is one passed in O.S.No.67/57 allowing redemption of a mortgage property from the 1st defendant one Ummini Nadar Kochappi Nadar. Suit was filed by two plaintiffs on behalf of a tharwad viz., Punnakulath Tharwad, to redeem a usufructuary mortgage of the year 1095 ME from the 1st defendant on behalf of the tharwad. Suit was decreed by judgment dated 17.3.1959. Execution of that decree was applied C.R.P.NO.756 OF 2008 :: 2 :: for filing a petition on 9.3.1961. That execution petition was dismissed on 1.8.1962 since the mortgagee had obtained grant of registry in respect of the decree scheduled property from the Special Tahsildar (Kandukrishi Lands). The decree holders challenged the dismissal of the petition filing an appeal, A.S.No.563/62. That appeal was dismissed. Decree holders filed a second appeal as S.A.No.846/63 before this court and that appeal was allowed on 4.7.1967 directing the execution court to execute the decree in accordance with its tenor. The mortgagee immediately thereupon filed a suit as O.S.No.945/67 before the Munsiff's Court, Neyyattinkara, against the decree holders contending that he has acquired title to the property under the provisions of the Land Reforms Act and sought for a declaration of his title over the property. In that suit, an interim injunction was obtained restraining the decree holders from executing the decree for redemption. That injunction application, it is stated, continued till 31.7.1971, the date on which that C.R.P.NO.756 OF 2008 :: 3 :: suit was dismissed. Pending the above suit, the mortgagee passed away and his legal representatives were impleaded as additional plaintiffs. They filed an appeal against the dismissal of that suit as A.S.No.182/71 and, it is stated, an order of injunction obtained in that decree restraining the decree holders from executing the decree allowing redemption of the mortgaged property continued in force till 7.2.1975, the date on which that appeal A.S.No.182/71 was dismissed by the Sub Court, Thiruvananthapuram. The decree holders thereafter filed the present execution petition, E.P.No.80/79 seeking redemption of the mortgaged property. In the execution proceedings, on the application moved by the legal representatives of the mortgagee, an Advocate Commissioner determined the value of improvements and filed a report. The report of the Commissioner was set aside by the execution court. That decision was challenged by the legal representatives of the deceased mortgagee filing a revision, C.R.P.No.2777/84 before this C.R.P.NO.756 OF 2008 :: 4 :: court. Pending that revision petition, the 1st decree holder passed away and his legal representatives were impleaded in the revision petition. That revision petition was dismissed on 14.6.1991. Pursuant to dismissal of that revision, the legal representatives of the 1st decree holder, who had been brought in substituting the decree holder in the revision, assigned their right, title and interest in the decree scheduled property in favour of a third party, the present revision petitioner under two registered assignment deeds. Meanwhile, the 2nd decree holder had also passed away. On the strength of the assignment deeds executed by the legal representatives of the 1st decree holder, the revision petitioner/assignee applied for impleading him as additional decree holder in the pending execution petition permitting him to execute the decree. Notice on that application, it is stated, was given to all parties, including the executants of the assignment deeds and also the judgment debtors. The execution court dismissed the application for impleadment by the assignee C.R.P.NO.756 OF 2008 :: 5 :: by order dated 23.11.1999. That order was challenged by the assignee before this court filing a revision, as C.R.P.NO.2700/99. Setting aside the order, this court directed the execution court to implead the assignee in the execution petition, reserving the right of the judgment debtors to challenge the execution of the decree by the assignee. Pursuant to such orders in revision, the assignee was impleaded as the additional 3rd decree holder in the execution petition. Respondents 8 and 18 to 20 in the present revision, who are the legal representatives of the mortgagee, and thus brought in as additional judgment debtors in the execution petition, raised objections impeaching the competency of the assignee to execute the decree and also the maintainability of the execution petition. The execution court upheld the objections raised on both grounds and dismissed the execution petition under the impugned order. Propriety and correctness of that order is challenged in the revision. C.R.P.NO.756 OF 2008 :: 6 :: 3. I heard the counsel on both sides. 4. Advocate Sri.P.B.Suresh Kumar appearing for the assignee decree holder assailed the order of the court below dismissing the execution petition as patently illegal and unsustainable under law. The learned counsel contended that the finding entered by the court below that the execution petition is barred by limitation, even after accounting the period during which the proceedings of the execution had been interdicted by orders of injunction passed by the court in parallel proceedings initiated by the mortgagee, the 1st defendant and also later by his legal representatives, is erroneous as the court has overlooked the judgment rendered by this court in the second appeal. In Ext.A11 judgment rendered in S.A.No.846/63, this court setting aside the order dismissing the execution petition had directed the execution court to execute the decree. When a specific direction has been given by this court in the second appeal to execute the decree setting aside the dismissal of C.R.P.NO.756 OF 2008 :: 7 :: the execution petition, it is urged by the learned counsel, it is a command to the court below to take back the execution petition on file and dispose it in accordance with law. So long as the execution court failed to comply with that direction, it cannot be contended for a moment, according to the counsel, that the execution petition taken from the decree is barred by limitation. The application subsequently moved by the decree holders in which the assignee, after the assignment applied for and got himself impleaded, at the most, according to the counsel, is a continuation of the previous execution petition or revival of the execution petition, with a new number, and so much so, the bar of limitation canvassed by the contesting judgment debtors, the legal representatives of the mortgagee, is unworthy of any merit. The learned counsel also attacked the finding entered by the execution court on the competency of the assignee decree holder to execute the decree. Since the decree had been passed in favour of a tharwad after obtaining assignment deeds C.R.P.NO.756 OF 2008 :: 8 :: from one of the decree holders, a member of the tharwad, the assignee decree holder was incompetent to execute the decree, it is submitted by the counsel, was the view taken by the court below, to hold that he was not competent to execute the decree. Other than adverting to the objections canvassed by the contesting judgment debtors that after the commencement of the Joint Family Abolition Act, 1975 and on disruption of the tharwad, without a suit for partition being filed by the members of the tharwad, the decree at the instance of the assignee, who got assignment of the rights from one of the decree holders, was not executable, the execution court, according to the counsel, has not adverted to the merit of the objection, nor considered the question of law applicable thereof in concluding that the assignee decree holder was incompetent to execute the decree. The learned counsel submitted that equity of redemption, not of the whole but even a moiety over the mortgaged property is sufficient for redemption, and the assignee C.R.P.NO.756 OF 2008 :: 9 :: decree holder after getting assignment of a decree from the legal heirs of one among the decree holders is fully competent to redeem the mortgaged property in execution and the rights inter se between the mortgagors, the members of the tharwad, is not the concern, nor could it be raised by the mortgagee to resist the execution of the decree or competence of the assignee decree holder to execute the decree. Impugned order passed by the court below dismissing the execution petition in any view of the matter is liable to be set aside with direction to restore the execution petition and dispose it in accordance with law, is the submission of the counsel. 5. Per contra, the learned senior counsel Sri.R.D.Shenoy who appeared for the 8th respondent vehemently urged that no interference with the order passed by the execution court dismissing the execution petition in exercise of revisional jurisdiction is called for in the present case. Learned counsel submitted that the assignee decree holder was purchasing a litigation, and in C.R.P.NO.756 OF 2008 :: 10 :: fact, even as on the date of filing of the 2nd execution petition by the decree holders, the execution of the decree was barred by limitation. So much so, by the assignment made in favour of the revision petitioner by the legal representatives of one of the two decree holders, both of whom together had filed the execution petition, the assignee decree holder has not obtained any right under law to execute the decree or claim any right over the property covered by the decree. Inviting my attention to E.P.No.80/79, the learned senior counsel contended that there is not even a whisper that the said petition had been filed as one in continuation of the previous execution petition, or that the decree holders are entitled to the exemption for the period in which the operation of the execution of the decree was prevented by orders of stay/injunction obtained by the judgment debtors claiming any exemption under Section 15 of the Limitation Act. When that be so, it is contended by the counsel, the subsequent application has to be treated only as a fresh C.R.P.NO.756 OF 2008 :: 11 :: application. The learned counsel vehemently contended that the question whether the present execution petition is one for revival of the previous execution petition has to be looked into with reference to the statements made in the 2nd execution petition. At any rate, the learned counsel urged that the assignee had no case that the 2nd application was a revival of the previous application. The question whether the period for execution has been extended by virtue of the applicability of the exemption under Section 15 of the Act, according to the counsel, has necessarily to be pleaded and proved by the persons seeking such exemption and when there is failure to do so, such exemption cannot be inferred in his favour on the incomplete circumstances canvassed. Pointing out that the Limitation Act is a piece of adjective or procedural law and not of substantive law, relying on A.S.K.Krishnappa Chettiar v. S.V.Somiah {AIR 1964 SC 227) it is contended that where the necessary inputs to claim exemption under Section 15 of the Limitation Act has not C.R.P.NO.756 OF 2008 :: 12 :: been made it cannot be permitted to be canvassed to get over the bar of limitation. Placing reliance on the observations made in Chhattar Singh & another v. Kamal Singh and others {AIR 1927 Allahabad 16}, the learned counsel contended that whether an application is in substance a fresh one or an attempt to revive a former one is a question of fact to be decided with reference to the circumstances present in the case. When there is no case in the subsequently filed execution petition that it has been filed as a petition to revive the former petition and no claim of exemption under Section 15 of the Limitation Act is canvassed in the execution petition, according to the counsel, the assignee decree holder/the revision petitioner cannot contend that the 2nd execution petition should be treated as a petition to revive the former execution petition. Lastly impeaching the competency of the assignee decree holder to execute the decree which had been obtained by two members of a tharwad in a representative capacity for redemption of a C.R.P.NO.756 OF 2008 :: 13 :: tharwad property outstanding on mortgage, it is contended by the counsel, that the assignee decree holder/revision petitioner cannot represent the members of the tharwad, and so much so, the court below was fully justified in holding so, and dismissing the execution petition. The findings entered by the execution court that the assignee decree holder was incompetent to execute the decree and the execution petition itself was barred by limitation, according to the counsel, are unassailable, and so much so, the revision is only to be dismissed. 6. The learned Senior Counsel Sri.Krishnanunni, who appeared for 19th respondent supporting the impugned order dismissing the execution petition contended that the execution of the decree at the instance of the assignee decree holder was not allowable in view of non-compliance of the first proviso to Rule 16 of Order XXI of the Code. No notice of the transfer of the decree by assignment was given to the transferor and judgment debtor and the objections were not heard on the C.R.P.NO.756 OF 2008 :: 14 :: execution of the decree on assignment, according to the counsel. Supporting the conclusion formed by the court below that the execution petition was barred by limitation and the assignee decree holder/revision petitioner was incompetent to execute the decree, the learned counsel relied on the aforesaid circumstance also to contend that the execution proceedings at the instance of the assignee, which was taken without complying with the mandate under the above Rule, was incompetent, and no interference with the order of dismissal of that execution petition in the given facts of the case is called for. 7. Advocate Sri.R.T.Pradeep, who appeared for the 20th respondent submitted that in view of the subsequent events of conferment of title over the property on the above respondents, under the tenancy laws recognising their right and interest over the decree scheduled property, the decree has become inexecutable and in that view of the matter also, the dismissal of the execution petition does not warrant any interference. C.R.P.NO.756 OF 2008 :: 15 :: 8. The learned counsel for the revision petitioner resisted the challenge canvassed that there was no notice under Rule 16 of Order XXI of the Code on the assignment of the decree contending that the impleadment of the assignee decree holder was made with notice to all the parties, the transferor and also the judgment debtors. It is further contended by the counsel that even if any patta had been issued in favour of the 20th respondent as contended by her counsel, it would not affect the execution of the decree passed by the court in redeeming the property. That patta cannot be given any merit as held by this court in Ext.A11 judgment previously setting aside dismissal of the execution petition which too was on the ground that a patta as Kandukrishi was issued in favour of the judgment debtors by the Special Tahsildar (Kandukrishi Lands). 9. I have considered the rival submissions made by the counsel on both sides, with reference to the order challenged in the revision. The execution court has C.R.P.NO.756 OF 2008 :: 16 :: dismissed the execution petition on two grounds: (i) it is barred by limitation and (ii) the assignee decree holder, a stranger to the tharwad, was incompetent to execute the decree, which had been obtained by the decree holders as representatives of a tharwad. In the contextual facts presented in the case, the correctness of the decision of the court holding that the execution petition is barred by limitation require to be examined. Admittedly the previous execution petition, was dismissed on 9.3.1961 in view of the order passed by the Special Tahsildar (Kandukrishi Lands) directing grant of registry over the decree scheduled property in favour of the judgment debtor. This court in Ext.A11 judgment rendered in the second appeal arising from the order dismissing the execution petition reversed that dismissal directing the execution court to execute the decree ' in accordance with its tenor'. The direction issued by this court in Ext.A11 judgment reads thus: C.R.P.NO.756 OF 2008 :: 17 :: “The Second Appeal is, therefore, allowed, the orders of the courts below are set aside and the objection petition E.A.9310/61 is dismissed. The executing court will proceed with the execution of the decree in accordance with its tenor. I direct the parties to bear the respective costs in these proceedings. No leave.” 10. Indisputably, the direction given by this court in Ext.A11 judgment mandated the execution court to restore the execution petition already dismissed for default and proceed with the execution of the decree and complete such proceedings in accordance with law. That was not done. Needless to state that an act or omission of the court should not cause prejudice or injury to any of the parties involved in the lis. The maxim “actus curiae neminem gravabit” no doubt was applicable in the given facts of the case enabling the decree holders to canvass that the application moved by them E.P.No.80/79, which was filed within 12 years from the date of Ext.A11 C.R.P.NO.756 OF 2008 :: 18 :: judgment rendered by this court when there was omission on the part of the court to restore the previous execution petition should be treated as a revival petition. In fact, in the facts and circumstances of the case, the subsequent execution petition, E.P.No.80/79 moved by the decree holders has to be treated only as a revival petition of the previous execution petition reminding the court to proceed with the execution already applied for under the previous petition complying with the mandate under Ext.A11 judgment. Be that as it may, I notice, the challenge on the question of limitation, in the present case, has not even got any academic value. When E.P.No.80/79 was moved, it is seen that the execution over the decree proceeded with no challenge as barred by limitation and in fact on the claim raised by one of the judgment debtors that he has tenancy right over the decree scheduled property, a reference was made to the Land Tribunal. That reference was answered in the negative by the Tribunal. If the decree was barred by C.R.P.NO.756 OF 2008 :: 19 :: limitation and if at all any challenge was raised thereto by any of the judgment debtors, no reference could have been made to the Tribunal to determine the claim of tenancy claimed by one among the judgment debtors viz., the 15th judgment debtor. Even assuming that plea of limitation was canvassed by any of the judgment debtors, evidently, it was not pressed into service at that stage of the execution proceedings. After receipt of the records from the Land Tribunal, it is seen from the proceedings paper, compensation for the value of improvements claimed by the judgment debtors was assessed by deputing an Advocate Commissioner on the commission application moved by them. The decree holder had also applied for assessment of damages through the very same commissioner. The report of the Commissioner was objected to by the decree holders. After enquiry in which the Commissioner was examined as well, the court set aside that report and appointed a fresh Commission for assessment of the value of improvements and quantum of C.R.P.NO.756 OF 2008 :: 20 :: damages. That order was challenged by the 15th judgment debtor by filing a revision C.R.P.NO.2700/84. The revision was dismissed by this court by judgment dated 14.6.1991 holding that for a proper adjudication of value of improvements, it is essential that damages too has to be ascertained. After all those proceedings in the execution petition, six years later, after the disposal of the revision by this court, the present revision petitioner applied for revival of the execution proceedings impleading him as an additional decree holder on the basis of the assignment of the decree by the legal representatives of the 1st decree holder, who had previously filed the execution petition. Evidently, after the revision C.R.P.NO.2700/84 was disposed by this court, the execution court did not take any steps to proceed with the execution. So much so, in his application, E.A.No.440/97, producing the certified copy of the order passed in the above revision by this court and also the sale deed under which the assignment in his favour was made, the assignee decree C.R.P.NO.756 OF 2008 :: 21 :: holder/revision petitioner requested for revival of the execution proceedings impleading him as additional decree holder filing a petition under Order XXII Rule 10 and Order XXI Rule 16 and Section 146 and 151 of the Code. Leaving aside the question whether under the assignment made he is competent to proceed with the execution petition or not in the given facts of the case, it is crystal clear that the plea of limitation canvassed by the judgment debtors, whatever be the ground thereof, to resist the execution could not at all have been entertained by the execution court. If at all, the plea of limitation was available in the execution of the decree, when E.P.No.80/79 was filed by the decree holder, it should have been raised at the appropriate time and the decision of the court invited by the judgment debtors. No such objection was canvassed and the court was not called upon to examine that question as well. The Apex Court in P.K.Vijayan v. Kamalakshi Amma {AIR 1994 SC 2145} has held that a party, who has failed to raise a C.R.P.NO.756 OF 2008 :: 22 :: challenge at the appropriate stage, in a proceeding or suit, cannot be permitted to