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
section 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 section 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 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 54350 with interest thereon
On February 15 1939 the decree holders filed an application for execution of the decree being EP 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 exhibit 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 CMA No 26 of 1944
Pending the disposal of the CMA the High Court granted an interim stay of EP 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 EA 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 EP 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 CMA 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 EP 13 of 1939 to the effect that the petition was closed
On July 31 1951 the 254 High Court dismissed CMA 127 of 1948
On January 21 1952 the decree holders made an application being EA No 142 of 1952 in EP 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 EP No 58 of 1953 to continue further proceedings in EP 13 of 1939 as per the order made in EA 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 EP No 13 of 1939 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 EP 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 section 48 of the Code
The learned Subordinate Judge held that though the decree holders were entitled to continue the previous execution petition EP 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 High Court took a different view and held that EP 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 EP 58 of 1953 and therefore the later execution petition was a fresh application within the meaning of section 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 EP 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 section 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 section 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 section 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 EP 58 of 1953 is a fresh application within the meaning of section 48 of the Code
The answer to this question mainly turns upon the question whether the previous application ie EP 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
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 EP 58 of 1953 in co
6 thereof it is mentioned that EP 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 EP 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 EP No 58 of 1953 the decree holders filed EA No 142 of 1952 for reopening EP No 13 of 1939
On that petition the learned Subordinate Judge made the following order The previous EP was merely closed
Petitioner may file a regular EP on which proceedings will continue from the stage at which they were left in EP 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 171 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 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 vs Binanda Chunder Dibingar Adhikar Gossyamy1 Vadlamannati Damodara Rao vs The Official Receiver Kistna2 Moidin Kutty vs Doraiswami3
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 EP 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 EP No 58 of 1953 is a fresh application
Learned counsel compared the recitals in EP 13 of 1939 and EP 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 Cal
3 AIR 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 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 EA 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 vs Kayastha Trading Bank1 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 section 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 vs Raja Inuganti Rajagopala Venkata Narasimha Rayanim2
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 vs Ippagunta 1 All 419
2 ILR 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 section 48 of the Code
In Gajanand Sah vs Dayanand Thakur2 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 section 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 section 48 of the Code
It is only an application to continue EP No 13 of 1939 which is pending on the file of the executing court
That apart the decree holders filed EA No 142 of 1952 in EP 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 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
1A1R Appeal dismissed
21942 1LR 21 Pat


Summary:
The decree holders filed an application for execution of the decree being EP No 131939
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 EP 131939 to the effect that the Execution Petition was closed
On January 21 1952 the decree holders made an application for reopening the execution EP No 131939 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 EP No 5853 to continue further proceedings in EP No 131939
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 EP No 131939 was dismissed on December 28 1948 the present application having been filed more than 12 years from the date of decree was barred under section 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 EP No 5853 was a fresh application as it differed from the original execution petition
On appeal the High Court held that EP No 131939 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 EP No 5853 is a fresh application within the meaning of section 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 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
EP No 5853 is only an application to continue the previous application ie EP 131939
Biswa Sonan Chunder Gossyamy vs Binanda Chander Dibingar Adhikar Gossyamy Cal
416 Vadlamannati Damodara Rao vs Official Receiver Kistna ILR 1946 Mad 527 and Moidin Kutty vs Doraiswami AIR 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 section 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
EP No 131939
It cannot therefore be treated as a fresh application within the meaning of section 48 of the Code
Bandhu Singh vs Kayastha Trading Bank All 419 Sri Raja D K Venkata Lingama Nayanim vs Raja Inuganti Rajagopala Venkata Narasimha Rayanim ILR 1947 Mad
525 Ippagunta Lakshminarasinga Rao vs Ippagunta Balasubrahamanyam and Gajanand Sah vs Dayanand Thakur Pat
discussed