20 January 1964
Supreme Court
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PENTAPATI CHINNA VENKANNA & ORS. Vs PENTAPATI BENGARARAJU & ORS.

Case number: Appeal (civil) 690 of 1962


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PETITIONER: PENTAPATI CHINNA VENKANNA & ORS.

       Vs.

RESPONDENT: PENTAPATI BENGARARAJU & ORS.

DATE OF JUDGMENT: 20/01/1964

BENCH: SUBBARAO, K. BENCH: SUBBARAO, K. MUDHOLKAR, J.R.

CITATION:  1964 AIR 1454            1964 SCR  (6) 251

ACT: Code  of Civil Procedure (Act 5 of 1908),  s.  48--Execution Petition--Fresh application--What is-"closed", meaning of.

HEADNOTE: The decree holders filed an application for execution of the decree  being E.P. No. 13/1939.  This  execution  proceeding had to be stayed .as a result of the stay order of the  High Court.  Ultimately the executing court made an order on E.P. 13/1939  to  the  effect that  the  Execution  Petition  was "closed".   On January 21, 1952, the decree holders made  an application for reopening the execution E.P. No. 13/1939 and for  proceeding  with  the  execution  of  the  decree,  The Subordinate  Judge,  (executing  court)  holding  that   the previous execution petition was merely closed" directed  the decree  holders  to file a regular execution  petition.   On October 11, 1952 the decree holders filed E.P. No. 58/53  to continue  further  proceedings  in E.P.  No.  13/1939.   The judgment  debtors filed a counter affidavit pleading,  inter alia  that  the  decree sought to be executed  was  made  on September  22,  1938,  and  that as  E.P.  No.  13/1939  was dismissed  on  December 28, 1948, the  present  application, having  been  filed  more than 12 years  from  the  date  of decree,  was  barred  under  s. 48  of  the  Code  of  Civil Procedure.   On these facts the Subordinate Judge held  that though the decree holders were entitled to continue previous execution  petition, E.P. No. 58/53 was a fresh  application as  it  differed from the original execution  petition.   On appeal, the High Court held that E.P. No. 13/1939 was merely closed   for  statistical  purposes,  and,  therefore,   the execution  petition filed in 1939 was still pending and  the decree holders were entitled to proceed with that  petition. Hence the appeal. The question for consideration is whether E.P. No. 58/53  is a fresh application within the meaning of s. 48 of the Code. Held:     (i) It is true courts have condemned the  practice of executing courts using expressions like "closed", "closed for statistical purposes", struck off" "recorded" etc.,  and they have also pointed out that there is 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  ,in  order  cannot  be  tantamount  to  an  order   of

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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.  It  is not the phraseology used by the Executing Court that really 252 matters, but is 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.  In  the present case the subsequent application ie.  E.P. No.  58/53 is only an application to continue the previous  application i.e. E.P. 13/1939. Biswa  Sonan  Chunder Gossyamy v. Binanda  Chander  Dibingar Adhikar  Gossyamy, (1884) I.L.R. 10 Cal.  416,  Vadlamannati Damodara Rao v. Official Receiver, Kistna, I.L.R. 1946  Mad. 527  and  Moidin Kutty v. Doraiswami, A.I.R. 1952  Mad.  51, referred to. (ii) An  application  made after 12 years from the  date  of decree would be     a  fresh application within the  meaning of s. 48 of the Code of Civil 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 the present case the parties are substantially the  same  in both proceedings, and the decree  holders  are only proceeding against properties included in the  previous application ie.  E.P. No. 13/1939.  It cannot, therefore, be treated  as a fresh application within the meaning of s.  48 of the Code. Bandhu Singh v. Kayastha Trading Bank, (1931) I.L.R. 53 All. 419, Sri Raja D. K. Venkata Lingama Nayanim v. Raja Inuganti Rajagopala  Venkata  Narasimha Rayanim, I.L.R.  [1947]  Mad. 525,    Ippagunta   Lakshminarasinga   Rao   v.    Ippagunta Balasubrahamanyam, A.I.R. 1949 Mad. 251 and Gajanand Sah  v. Dayanand Thakur (1942), I.L.R. 21 Pat. 838. discussed.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 690 of 1962. Appeal  from the judgment and order dated March 5, 1959,  of the  Andhra Pradesh High Court in Appeal against  order  No. 151 of 1955. S. Suryaprakasam and Sardar Bahadur, for the appellants. The respondent did not appear. January  20, 1964.  The Judgment of the Court was  delivered by SUBBA RAO J.-This appeal by certificate raises the  question of  the  applicability  of  s.  48  of  the  Code  of  Civil Procedure, hereinafter called the Code, to the facts of the                             253 The  relevant  facts are as follows: In the  year  1928  one Pentapati Venkataramana filed Original Suit No. 3 of 1928 in the  Court of the Subordinate Judge, Visakhapatnam,  against 29 defendants for accounts of dissolved partnerships and for

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the recovery of amounts due to him.  On March 30, 1932,  the suit  was  dismissed by the learned Subordinate  Judge.   On appeal, the High Court of Madras set aside the decree of the Subordinate  Judge and passed a joint and several decree  in favour  of the plaintiffs and defendants 24 to 27 for a  sum of Rs. 54,350 with interest thereon.  On February 15,  1939, the decree-holders filed an application for execution of the decree,   being  E.P.  No.  13  of  1939,  and  prayed   for realization of the decretal amount by attachment and sale of 31  items  of properties described by them in  the  schedule (Ex.   B-4) annexed thereto.  The judgmentdebtors  filed  an objection  to the attachment of some of the said items,  but that was dismissed.  Against the order of dismissal of their objection, the judgment-debtors filed an appeal to the  High Court, being C.M.A. No. 26 of 1944.  Pending the disposal of the  C.M.A., the High Court granted an interim stay of  E.P. 13  of 1939.  Later, the appeal was dismissed on  April  26, 1945.   After the dismissal of the appeal, when the  decree- holders sought to proceed with the execution, the  judgment- debtors  filed  another application being E.A.  No.  575  of 1945,  alleging  that the decree has been adjusted  and  for recording   satisfaction  of  the  decree.   But  the   said application  was  dismissed  on  December  12,  1945.    The judgment-debtors went up on appeal to the High Court against the said order of dismissal and obtained an interim stay  of E.P.  13  of  1939.  On September 9, 1947,  the  High  Court allowed the appeal and remanded the case to the trial  court for  ascertaining  whether there was an  adjustment  of  the decree  as pleaded by the judgment-debtors.  On remand,  the executing court again dismissed the application filed by the judgment-debtors.   Against  the aid  order,  the  judgment- debtors  again preferred an appeal, being C.M.A. No. 127  of 1948,  in the High Court of Madras and obtained  an  interim stay of the execution.  The interim order was made  absolute on  November 24, 1948.  As the execution of the  decree  was stayed by the High Court, the executing court made an  order on  E.P.  13  of 1939 to the effect that  the  petition  was "closed".  On July 31, 1951, the 254 High  Court  dismissed C.M.A. 127 of 1948.  On  January  21, 1952, the decree-holders made an application being E.A.  No. 142  of  1952,  in E.P. 13 of 1939 for  reopening  the  said execution petition and for proceeding with the execution  of the decree.  The learned Subordinate Judge, holding that the previous  execution petition was merely  "closed",  directed the decree-holders to file a regular execution petition.  On October  11, 1952, the decree-holders filed E.P. No.  58  of 1953  to continue further proceedings in E.P. 13 of 1939  as per the order made in E.A. No. 142 of 1952 passed on October 4,  1952.  In that petition the decree-holders  prayed  that the properties mentioned in the draft proclamation filed  in E.P. No. 13 of 1.939 and brought to sale may be sold for  he realization  of the money due to the decree-holders and  the proceeds applied for the discharge of the decree-debt.   The judgment-debtors  filed a counter-affidavit pleading,  inter alia,  that  the decree sought to be executed  was  made  on September  22,  1938, and that as E.P. No. 13  of  1939  was dismissed  on  December 28, 1948, the  present  application, having  been filed more than 12 years from the date  of  the decree,  was  barred under s. 48 of the Code.   The  learned Subordinate  Judge held that though the decree-holders  were entitled  to continue the previous execution petition,  E.P. 58 of 1953 was a fresh application, as in form as well as in details  it materially differed from the original  execution petition.  On appeal, a division Bench of the Andhra Pradesh

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High  Court took a different view and held that E.P.  13  of 1939 was merely closed for statistical purposes and,  there- fore, the execution petition filed in 1939 was still pending and  the decree-holders were entitled to proceed  with  that petition.   The  High Court further observed that  the  said position  was not contested by learned counsel for the  res- pondents.  We understand this observation only to mean  that learned  counsel appearing for the respondents  therein  did not contest the position that if the execution petition  was not dismissed but was only closed for statistical  purposes, the  decree-holders  were  entitled  to  proceed  with  that petition.   The High Court remanded the case to the  learned Subordinate  Judge  for  disposal  according  to  law  after considering  the other contentions of the  judgment-debtors. Hence the appeal.                             255 Mr.  Suryaprakasam,  learned  counsel  for  the  appellants, raised before us the following two points: (1) The  previous execution petition was dismissed and, therefore, it was  not pending  at  the  time of filing of E.P. 58  of  1953,  and, therefore,   the  later  execution  petition  was  a   fresh application within the meaning of s. 48 of the Code; and (2) even  if  the  previous  application  was  only  closed  for statistical purposes, and the decree-holders could apply for reviving those proceedings, E.P. No. 58 of 1953 was a  fresh execution  petition because the parties and  the  properties proceeded  against were different and the relief  asked  for was also different. Before  we  consider the question raised, it would  be  con- venient at the outset to look at the material provisions of s.   48 of the Code.  It reads:               "(1) Where an application to execute a  decree               not being a decree granting an injunction  has               been  made, no order for the execution of  the               same  decree  shall  be made  upon  any  fresh               application Presented after the expiration  of               twelve years from--               (a)  the  date  of the  decree  sought  to  be               executed."               This  section corresponds to paras 3 and 4  of               s. 230 of the               Code  of  1882.   The  relevant  part  of  the               section read:               "Where an application to execute a decree  for               the  payment  of money or  delivery  of  other               property has been made under this section  and               granted, no subsequent application to  execute               the  same  decree shall be granted  after  the               expiration  of  twelve years from any  of  the               following dates: A  comparison  of  the said two provisions  shows  that  the phrase "fresh application" has been substituted for  "subse- quent  application".   This amendment  became  necessary  in order to make it clear that the application mentioned in  s. 48 of the Code is a fresh substantive application and not an application to revive or continue a substantive  application already pending on the file of the court. 256 The  question,  therefore, is whether E.P. 58 of 1953  is  a fresh  application within the meaning of s. 48 of the  Code. The  answer to this question mainly turns upon the  question whether the previous application i.e., E.P. 13 of 1939,  was finally disposed of by the executing court.  From the narra- tion of facts given by us earlier it is clear that the  said execution  petition was "closed" for  statistical  purposes.

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As  the High Court stayed the execution pending  the  appeal filed  by the judgment-debtors, the decree-holders were  not in  a position to proceed with the execution petition,  and, therefore,  it was closed.  Some argument was raised on  the question whether the said execution petition was closed  for statistical purposes or was dismissed that it was  contended that  under the Code of Civil Procedure there was  no  power conferred  upon a court to close execution  proceedings  for statistical  purposes,  and that even if such an  order  was made,  it  must  be deemed to be  an  order  dismissing  the execution  petition.   The actual order dated  December  28, 1948 has not been placed before us.  But in E.P. 58 of  1953 in  co]. 6 thereof it is mentioned that E.P. No. 13 of  1939 was  closed on December 28, 1948.  In the  counter-affidavit filed by one of the judgment-debtors it is stated that  E.P. 13 of 1939 was dismissed on December 28, 1948 and not merely closed.  After the disposal of the appeal by the High  Court and  before the filing of E.P. No. 58 of 1953,  the  decree- holders filed E.A. No. 142 of 1952 for reopening E.P. No. 13 of  1939.   On that petition the learned  Subordinate  Judge made the following order:               "The   previous   E.P.  was   merely   closed.               Petitioner  may file a regular E.P.  on  which               proceedings  will continue from the  stage  at               which they were left in E.P. 13 of 1939." This  order discloses that the previous  execution  petition was only closed.  The Subordinate Judge must have presumably looked  into the previous record.  The  learned  Subordinate Judge  proceeded  on the assumption that the  previous  exe- cution petition was pending, though he dismissed the present execution petition on another ground.  This factual position was not contested even in the High Court, for the High Court stated that the previous application was merely closed for                             257 statistical purposes.  In the circumstances we must  proceed on the assumption that the Execution Petition 13 of 1939 was only closed for statistical purposes. Learned counsel for the appellants contends that the Code of Civil  Procedure does not sanction the passing of  an  order closing  an execution petition for statistical purposes  and that  practice has been condemned by courts.  Under 0.  XXI, r.  17(1)  of the Code, the Court may  reject  an  execution application  if the requirements of rules 11 to 14 have  not been  complied with.  Under r. 23 thereof, if the  judgment- debtor  does  not  appear  or does not  show  cause  to  the satisfaction  of  the  court why the decree  should  not  be executed,  the court shall order the decree to be  executed, and where such person offers any objection to the  execution of  the decree, the Court shall consider such objection  and make  such  orders as it thinks fit.  Under r.  57  thereof, "Where  any  property has been attached in  execution  of  a decree  but  by reason of the  decree-holder’s  default  the Court is unable to proceed further with the application  for execution,  it shall either dismiss the application  or  for any  sufficient reason adjourn the proceedings to  a  future date.........  Relying  upon these provisions it  is  argued that though the power of the court to make an order under 0. XXI,  r. 23 (2) is wide and it can make any order it  thinks fit,  it  can  only  make one or other  of  the  two  orders mentioned  in  r.  57 when it could  not  proceed  with  the execution because of the default of the decree-holder. It is said that in this case the decree-holders could not  proceed with the execution in view of the stay order of the    High Court and, therefore, the executing court could have  either dismissed the application or adjourned the proceedings to  a

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future  date  and it has no jurisdiction to  pass  an  order closing  the  execution  for statistical  purposes.   It  is further   said  that  an  order  closing   proceedings   for statistical purposes is not an order of adjournment, for  an order of adjournment implies that the application is on  the file, whereas the object of closing is to take it out of the file,  though  temporarily, and, therefore,  the  order,  in effect  and substance, is one of dismissal.   Assuming  that the order was made by reason of the decree-holder’s  default within the meaning of 0. XXI, r. 57 of the Code, we find  it difficult to attribute something to the court which it never intended to 34 -159 3--C. 17 258 do.  It is true courts have condemned the practice  of  exe- cuting  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:  see  Biswa Sonan  Chunder Gossyamy v. Binanda Chunder Dibingar  Adhikar Gossyamy(1);  Vadlamannati  Damodara  Rao  v.  The  Official Receiver,  Kistna(2); Moidin Kutty v. Doraiswami(3).  It  is not necessary to express our opinion on the question whether such procedure is sanctioned by the Code of Civil  Procedure or  not; 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 is  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 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 proceeding were pending on the  file  of the  court.  We have no hesitation, therefore,  in  agreeing with  the High Court that E.P. 13 of 1939 is pending on  the file of the executing court and that the present application is only an application to continue the same. Even so, it is contended that E.P. No. 58 of 1953 is a fresh application.  Learned counsel compared the recitals in  E.P. 13 of 1939 and E.P. 58 of 1953 and pointed out that all  the respondents  in  the  former  execution  petition  are   not respondents  in the present execution petition;  that  legal representatives  of some of the defendnts are added  to  the present execution petition; that the decree-holders did not (1) (1884) I.L.R. 10 Cal.  422.   (2) I.L.R. 1946 Mad. 527. (3) A.I.R. 1952 Mad. 51 . 259 seek  to  proceed against all the properties  against  which they sought to proceed in the former execution petition; and that  one  of  the reliefs, namely,  to  attach  the  amount deposited  in  court,  asked for in  the  present  execution petition  is a completely new one and that,  therefore,  the present   execution  petition  is,  both  in  form  and   in particulars,  completely a different one.  But a  comparison of  the two execution petitions shows that the  parties  are the  same:  the new parties added in the  present  execution

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petition  are  either  the  legal  representatives  of   the deceased  parties or the representative of a party  who  has become  insolvent.   In the present execution  petition  the decree-holders  are  not  proceeding  against  any  property against  which they did not seek to proceed in  the  earlier proceeding;  they only omitted some of the properties.   The decree-holders  cannot be compelled to proceed  against  all the  properties  against which at one time  they  sought  to proceed.   The  relief by way of attachment  of  the  amount deposited in court had been asked for by the  decree-holders by  a separate petition, namely, E.A. No. 143 of  1962,  and that  was dismissed and, therefore, nothing turns  upon  it. The  result  is,  therefore, in substance  tinder  both  the execution  petitions  the  decree-holders  seek  to  proceed against the same parties and against the same properties. The law on the subject is well-settled.  In Bandhu Singh  v. Kayastha Trading Bank(1), where a decree-holder included new items  of  property  for attachment in  an  application  for execution of his decree filed 12 years after the date of the decree,  it  was held that the application to  attach  fresh property was a fresh application within the meaning of s. 48 of  the Code and, therefore, having been made more  than  12 years   after  the  date  of  the  decree,  could   not   be entertained.  In Sri Raja D. K. Venkata Lingama  Nayanim  v. Raja Inuganti Rajagopala Venkata Narasimha Rayanim(2). where an  application  was made for amending a  pending  execution petition with a view to attach another property not included in  the  pending  application,  the  court  held  that   the application  for amendment could not be allowed, as  it  was made  beyond  the period of 12 years from the  date  of  the decree.  In Ippagunta Lakshminarasinga Rao v. Ippagunta (1) (1931) I.L.R. 53 All. 419. (2) I.L.R. 1947 Mad. 525 260 Balasubrahmanyam  (1),  where the execution  petition  filed beyond  12  years of the decree asked for a new  relief  not asked  for  in the earlier execution petition, it  was  held that the subsequent application, having been filed beyond 12 years,  was  hit by s. 48 of the Code.  In Gajanand  Sah  v. Dayanand  Thakur(2),  the decree-holder was not  allowed  to substitute  a  new property different from the  one  against which he wished to proceed in the earlier application on the ground  that  12  years had expired from  the  date  of  the passing of the decree. The  result  of the decisions may be  summarized  thus.   An application made after 12 years from the date of the  decree would be a fresh application within the meaning of s. 48  of the Code of Civil 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  this case, as we have pointed out, the parties are  sub- stantially the same in both the proceedings, and the decree- holders are only proceedings against properties included  in the previous application.  It cannot, therefore, be  treated as  a fresh application within the meaning of s. 48 of,  the Code.  It is only an application to continue E.P. No. 13 of 1939 which is pending on the file of the executing court. That apart, the decree-holders filed E.A. No. 142 of 1952 in E.P.  No. 13 of 1939 expressly asking for the  reopening  of the said execution petition and for proceeding with it.   As we  have held that the earlier execution petition  is  still pending  on the file of the court, the executing court  will

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be well within its rights in proceeding on the basis of  the earlier execution petition even without a new petition. In  the result, we hold that the order of the High Court  is right.  The appeal fails and is dismissed.  There Will be no order as to costs. (1)A.1.R. 1949 Mad, 251.)  Appeal dismissed. (2)(1942) 1.L.R. 21 Pat. 838. 261