Ram Reddy vs Garla Jankavva

Taqi Bilgrami, J.—This second execution appeal arises out of proceedings consequent upon an application of the judgment-debtor under O. 21, R. 2, C. P. C., during the course of execution of a decree for possession on the allegation that an adjustment of the decree had taken place outside the Court. The execution petition was dismissed for default on 25th Farwardi, 1357 Fasli, without any decision being arrived at on the judgment-debtor''s application, and when on 6th Khurdad, 1358 Fasli, a fresh execution petition was filed the appellant-judgment-debtor again wanted certification under O. 21, R. 2, C.P.C. The Munsiff of Karimnagar rejected this application for revival and holding that the fresh petition under O. 21, R. 2, was time-barred, rejected the judgment-debtor''s contention regarding adjustment. The decision was confirmed on appeal by the District and Sessions Judge of Karimnagar and the judgment-debtor has come to this Court by way of second appeal.

In our opinion, if the application filed by the appellant during the first execution case was within time, & it is not denied that it was, there was no reason why it should be considered time-barred when the second execution petition was filed. It is difficult to conceive that the certification application, though filed in course of the execution proceedings, would stand dismissed by implication, if the execution petition is dismissed for default or otherwise. The contrary view would result in placing the judgment-debtor who seeks certification at the mercy of the decree-holder who may bring about a dismissal of a petition under O. 21, R. 2, C.P.C. at his will. In -- ''Nirmal Neeliyya v. Mungal Vishwanatham,'' 35 Deccan L.R. 933 (A), it was held that the dismissal of an execution petition did not automatically operate as a dismissal of an application for adjustment under O. 21, R. 2. We respectfully agree with that view. The fresh application for certification was in effect an application for revival of the earlier application for certification which was still undecided and the Court below was wrong in refusing to entertain the plea of adjustment.

We allow the appeal, set aside the decision of the Courts below and direct that the application for certification dated 28th Mehir, 1354 Fasli, be revived and disposed of according to law. The costs of this appeal will abide the result.