Case: Pentapati Chinna Venkanna &amp; Ors Vs. Pentapati Bengararaju &amp; Ors

2. 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 amount 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 files 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 judgment-debtors 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 December12, 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 said 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 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 1939 and brought to sale may be sold for the 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 High Court took a different view and held that E.P. 13 of 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. The High Court further observed that the said position was not contested by learned counsel for the respondents. 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.

Reasoning: From the narration 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 and it was contended that under theCode 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 Col. 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 execution 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 statistical purposes. In the circumstances we must proceed on the assumption that the Execution Petition 13 of 1939 was only closed for statisticalthat the order was made by reason of the decree-holders default within the meaning of O. XXI, R. 57 of the Code, we find it difficult to attribute something to the court which it never intended to do. 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 also pointed out that there was no provision in theCode of Civil Procedure for making such orders: see Biswa Sonan Chunder Gossamy v. Binanda Chunder Dibingar Adhikar, ILR 10 Cal 416   at p. 422; V. Damodara Rao v. Official Receiver, Kistna, ILR (1946) Mad 527 : (AIR 1946 Mad 170  ); Moidin Kutty v. Doraiswami, AIR 1952 Mad 51  . It is not necessary to express our opinion on the question whether such procedure is sanctioned by theCode 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 "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 proceedings 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 thea 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, E. A. No. 143 of 1952, and that was dismissed and, therefore, nothing turns upon it. The result is, therefore, in substance under both the execution petitions the decree-holders seek to proceed against the same parties and against the same properties.8. The law on the subject is well settled. In Bandhu Singh v. Kayastha Trading Bank, Ltd., ILR 53 All 419: (AIR 1931 All 134) 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.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 theCode 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.10. In this case, as we have pointed out, the parties are substantially the same in both the proceedings, and the decree-holders are only proceeding 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.11. 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 be well within its rights in proceeding on the basis of the earlier execution petition even without a new petition.