The petitioners herein are the judgment debtors 52 to 55 in E.P.No.118/2010 in O.S.No.82/1960 as well as the petitioners in E.A.No.356/2011 filed therein. The above E.P. was filed in O.S.No.82/1960, which was decreed on 13-9-1965 and confirmed by this Court in appeal on 21-12-1971. But, the present E.P. was filed on 4-2-2010. According to the petitioners, the present E.P. is barred under Article 136 of the Limitation Act. On the above premise, they filed E.A.No.356/2011 in the above E.P., challenging the maintainability of the E.P.
2. But the decree holders contented that in the year 1974 itself E.P. was filed as E.P.No.238/1974 and the same was pending when E.P.No.118/2010 was filed. After perusing the records, the court below arrived at a finding that on a perusal of the records it is seen that E.P.No.238/74 was dismissed as withdrawn only for statistical purpose. Since the E.P. was dismissed on statistical purpose only, the court below relied on Ittoop Philip Vs. Appukutta Menon (1995(1) KLT 381) and Venkanna Vs. Bangara Raju (AIR 1964 SC 1454), which laid down a proposition that if the earlier E.P. was dismissed on statistical purpose, fresh E.P. can be treated as the continuation of the earlier E.P. Consequently, it was found that the E.P. is not barred by limitation. The legality and propriety of this order are under challenge in this Original Petition.
3. The learned counsel for the petitioners advanced arguments challenging the findings by which the court below found that the present E.P is the continuation of the former E.P which was dismissed on statistical purpose only. The learned counsel further contends that the present judgment debtors are not parties in the earlier E.P and in so far as they are concerned, the present E.P is a fresh E.P. The learned counsel further cited the decision relied on in Mohanachandran v. Bhavani Amma (2010 (4) KLT 127) and drew my attention to paragraph 7 of the said judgment, to fortify his argument that the fresh E.P against fresh party cannot be treated as a continuation of the earlier E.P., which was dismissed on statistical purpose.
4. Per contra, the learned counsel for the respondents submits that, though, the earlier E.P No. 238 of 1974 was closed on 11/09/1975, pursuant to allowing an application for amendment of the E.P on 23/09/1975 itself, the decree holder filed fresh E.P No.249/1975 against 44 judgment debtors including the predecessor in interest of the present petitioners. Though, the said E.P was dismissed as not pressed on 11/02/2010, before that, on 04/02/2010 itself, the present E.P 118/2010 was filed against the present petitioners as legal heirs of the deceased 41st judgment debtor in EP No.249/75. The earlier E.P was not pressed on the sole reason that the fresh E.P had been filed against the legal heirs of the 41st judgment debtor in the earlier E.P. Therefore, the present E.P cannot be deemed as fresh E.P and it can be treated as the continuation of the earlier E.P No.249 of 1975.
5. Heard both sides. The short question that arises for consideration in this petition is, whether there is any illegality or impropriety in the findings by which the court below found that the present E.P is not barred by limitation ?
6. Going by the records, it is seen that, the first E.P.
238 of 1974 was filed on 13/09/1974. Admittedly, the first E.P was within the period of limitation. Thereafter, that E.P was dismissed as closed on 11/09/1975 pursuant to the order passed in E.A No.660 of 1975 allowing amendment in the E.P. Needless to say, the dismissal of the said E.P was not on merits; but for statistical purpose alone and also for filing amended E.P pursuant to the order passed in E.A 660 of 1975. Thereafter, on 26/09/1975, the decree holder filed E.P No.249 of 1975 for execution of decree against judgment debtors 49 in numbers. In that E.P., the petitioners' predecessors in interest from whom the present petitioners claiming title and possession over the property was arrayed as 41st judgment debtor. But, later, that E.P was dismissed as not pressed on 11/02/2010. It is pertinent to note that, before the dismissal of that E.P on 04/02/2010, the judgment debtors had filed the present E.P 118 of 2010 against the present petitioners as the legal heirs of the 41st judgment debtor in the former E.P No.249 of 1975. Going by the sequences of events, in my view, the present E.P is the continuation of the former E.P No.249 of 1975, though, the petitioners are not parties in the earlier E.P No.249 of 1975. The present petitioners are the legal heirs of 41st judgment debtor and they are claiming title and possession as successor in the interest of the 41st judgment debtor. Put it differently, by filing the fresh E.P against them, they stepped into the shoes of the 41st judgment debtor in E.P No.249 of 1975 only. Therefore, the present E.P cannot be treated as a fresh E.P and it is the continuation of the former E.P only.
7. The learned counsel for the petitioners drew my attention to 7th paragraph of the decision relied on Mohanachandran's case (supra). In the above decision, I find that the question whether the fresh E.P against successor in interest of the deceased judgment debtor in the earlier E.P can be treated as a fresh E.P, is not considered. There, a fresh E.P substituting a fresh item of property was the question in controversy and found that as far as the fresh item of property is concerned, the fresh E.P cannot be treated as continuation of the earlier E.P. Thus, I find that, facts of the instance case is distinguishable from the facts involved in the above decision. Therefore, this decision will not render any help or aid to the point canvased by the petitioners.
8. In the light of the above discussion, I find that the present E.P is maintainable as the continuation of the earlier E.P and there is no illegality or impropriety in the impugned order under challenge.
Hence, this original petition is dismissed.
Stu K.HARILAL, JUDGE.
//True copy// P.A to Judge