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K. Muniswamappa Vs. P. Chennakrishnappa - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKarnataka High Court
Decided On
Case NumberEx. Second Appeal No. 62 of 1968
Judge
Reported inAIR1971Kant266; AIR1971Mys266; (1971)1MysLJ481
ActsCode of Civil Procedure (CPC) , 1908 - Sections 48
AppellantK. Muniswamappa
RespondentP. Chennakrishnappa
Appellant AdvocateN.M. Ganapathy, Adv.
Respondent AdvocateB.S. Pranesh Rao, Adv.
DispositionAppeal dismissed
Excerpt:
- workmens compensation act, 1923 [c.a. no. 8/1923]. section 19; [k. ramanna, j] employment injury death of driver due to heart attack while on duty - liability of the insurer - fastening the liability on the insurer/appellant to indemnify the owner of the vehicle nexus between the death of the deceased and the nature of work carried out by him held, considering the nature of work carried out by the deceased who was a driver of heavy vehicle and further as there is no previous history of chest pain or hear attack, the same be related to his nature of work and out of stress and strain for continuously driving the heavy vehicle, he suffered heart attack. as such, the nexus betweens the death of the deceased and the nature of work carried out by him has been clearly established. further,.....m. sadanandaswamy, j.1. the appellant is the judgment-debtor and the respondent is the decree-holder. the respondent obtained a money decree on 17-7-1954 for its. 7,931.25 in o. s. no. 65 of 1954 on the file of the erstwhile subordinate judge's court bangalore, he filed the first execution petition no. 338 of 1954 for recovery of the decretal amount. he prayed for the arrest of the judgment-debtor as well as for attachment of the moveables and immovables and for realisation of the decretal amount by the sale thereof. in the execution petition, the immovable property of the judgment-debtor was attached ana it was brought to sale. the case was posted for sale of the property on 15-9-1955. but the said execution petition was stayed on 2-9-1955 in claim petition no. 328 of 1955 preferred by.....
Judgment:

M. Sadanandaswamy, J.

1. The appellant is the judgment-debtor and the respondent is the decree-holder. The respondent obtained a money decree on 17-7-1954 for Its. 7,931.25 in O. S. No. 65 of 1954 on the file of the erstwhile Subordinate Judge's Court Bangalore, He filed the first execution petition No. 338 of 1954 for recovery of the decretal amount. He prayed for the arrest of the judgment-debtor as well as for attachment of the moveables and immovables and for realisation of the decretal amount by the sale thereof. In the execution petition, the immovable property of the judgment-debtor was attached ana it was brought to sale. The case was posted for sale of the property on 15-9-1955. But the said execution petition was stayed on 2-9-1955 in Claim Petition No. 328 of 1955 preferred by the children of the Judgment-debtor. That claim petition was dismissed on 18-12-1958. The execution petition was ordered to be filed. The decree-holder filed a second execution petition No. 255/56 praying for the arrest of the judgment-debtor and the judgment-debtor was ordered to be arrested. But the judgment-debtor filed an appeal in R. A. 11/57 and obtained an order of stay. Hence, the execution petition was ordered to bo filed. The decree-holder filed the third execation petition. No. 49 of 1957 and sought for sale of the same property which was attached and brought to sale in the first execution petition. The property was ordered to be sold on 17-9-1957. But this sale was stayed by an order of injunction passed on 27-8-1957 In O. S. No. 89/57 on the file of file District Judge, Bangalore. This execution petition was also ordered to be filed on 10-9-1957. That suit was a suit for partition filed by the children of the judgment-debtor. The suit was decreed in favour of the plaintiffs, but it was held that the decree obtained by the present decree-holder was binding on them. The suit was disposed of on 30-11-61. The subsequent proceedings relating to O. S. No. 89/57 are not relevant since there was no order of stay or injunction in respect of the execution of the decree obtained by the decree-holder in the subsequent proceedings. During the pendency of the injunction order in O. S. 89/57, the decree-holder filed the fourth execution petition No. 233/60. The office of the Court noted an objection calling upon the decree-holder to state as to what had become of the Injunction order passed in O. S. No. 39/57. After a few adjournments, on 25-11-1960, in the absence of the decree-holder, the execution petition was dismissed for default But immediately, on the same day, the decree-holder appeared and filed a memo saying that he would not press the execution petition as the order of injunction passed in the suit was still in force. Accordingly, the order dismissing the petition for default was set aside and the execution petition was ordered to be 'closed as desired' with the direction allowing the attachment to subsist. The order of injunction passed in O. S. No. 39/57 was vacated on 80-11-1961. Thereafter, the decree-holder filed the fifth the present execution application No. 1390/66 on 19-12-1966. He prayed for sale of the schedule immovables of the judgment-debtor attached in Execution No. 336/54. Along with the execution application, he filed a memo stating that mere was an order of stay between 2-9-1955 and 18-12-1956 of Execution No. 336/54 that there was an order of injunction passed in Execution No. 49 of 1957 restraining the decree-holder from proceeding with the sale in Exn. No. 49/57 between 31-8-1957 and 30-11-1881 and that there was no bar of limitation. It further stated that the relief sought for is the one that has been sought for in Exn. No. 49/57 and that the present petition is a revival of and or the continuance of Execution No. 49 of 57. The judgment-debtor filed his objections and contended that the execution petition is barred by time, that the decree-holder should have filed a fresh application within time after 80-11-1961, and that the Execution No. 49/57 could not be revived. It was also pleaded that the dismissal of Execution No. 233/60 on 25-11-1960 is also a bar for the revival of Execution No. 49/57. He further contended that the execution petition should have been filed within three years from 30-11-1961 or from 25-11-1960 and that not having been done, it is barred by time. It was stated that the amount claimed is excessive and that the pendency of the application does not save the limitation for the present execution.

2. The executing court overruled the objections and ordered that the execution shall proceed. The lower appellate court confirmed the order of the executing court and dismissed the appeal filed by the judgment-debtor. The judgment-debtor has now filed the present second appeal.

3. It is urged on behalf of the appellant first, that the present execution petition having been filed beyond 12 years, under Section 48 of the Civil Procedure Code, it is barred by time, . Secondly, that the lower appellate court was in error in deducting the period of 5 years 6 months and 5 days being the total period of time covered by the stay order and the order of injunction while calculating the period of time, on the basis that the Limitation Act, 1963 applied to the facts of the case. Thirdly, it was contended that since according to the case of the decree-holder the first execution petition filed by him is still pending and has not been disposed of, since the present execution petition has been filed on 13-12-1G66, by virtue of Section 31(b) of the Limitation Act 1963, it is the Indian Limitation Act, 1908, which applies to the facts of the case. Fourthly, it was contended that the first execution petition could not be revived unless the present execution petition was filed within three years from the date of vacation of the order of stay or the date of the dissolution of the injunction order. Fifthly, it was contended that the first and third execution petitions Could not be revived in view of the fact that the 4th execution petition had been dismissed. Sixthly, it was contended that the order of injunction in O. S. No. 39/57 restrained the decree-holder from bringing the Immovable properties to sale and that it did not prevent the decree-holder from pursuing the other remedies open to him and that the other remedies apart from the one to which the injunction order related were barred. It was next contended that the present execution petition' having been filed beyond three years from 30-11-1961 it is barred by limitation.

4. The main points to be considered in this appeal are:

(1) Whether the first execution petition No. 336/5-1 can be said to be still pending on the date the 5th execution petition No, 1390/66 was filed i.e., on 19-12-66? and

(2) Whether the 5th execution application No. 1390/66 i.e., the present execution application is barred by limitation?

5. In : [1964]6SCR251 it has been held that the application referred to in Section 48 of the Code of Civil Procedure is a fresh and substantive application and not an application to revive or continue a substantive application already pending on the file of the Court. It has also held that an execution application made after 12 years from the date of the decree will be a fresh application within Section 48 of the Code of Civil Procedure if the previous application wag finally disposed of, or if it relates to the parties or properties different from those proceeded against in the previous execution petition. In that case, a money decree had been obtained on 22-9-1938. Execution No. 13/39 was filed on 15-2-1939. The decree-holder had prayed for the realisation of the decretal amount by attachment and sale of the immovable properties. The judgment-debtors filed objections which were overruled. Against the order of dismissal, the judgment-debtors appealed to the High Court. In the appeal, an interim stay of Execution Petition No. 13/39 was granted and the appeal was dismissed on 26-4-1945. Thereafter, the decree-holder sought to proceed with the execution, but the judgment-debtors filed fresh objections which were also dismissed. Against this order of dismissal, the judgment-debtors again appealed to the High Court and obtained an order of interim stay. The appellate Court allowed the appeal and remanded the case. Again the executing court dismissed the application of the judgment-debtors and against that order the judgment-debtors appealed and obtained an interim stay of the execution in the appeal. The interim stay order was made absolute on 24-11-1948. As the execution of the decree had been stayed, the executing court made an order in Exn. 13/39 to the effect that the petition was 'closed'. After the dismissal of the appeal filed by the Judgment-debtor, the decree-holders made an application on 25-1-1952 in Exn. Petition No. 13/39, namely, E. A. 142/52 for reopening the execution petition and proceeding with the execution of the decree. The Court directed the decree-holders to file a regular execution petition which was filed on 11-10-1952, namely E. P. No. 58/53, to continue the proceedings in Ext. Petn. No. 13/39. In that petition, the decree-holders prayed that the properties mentioned in the draft proclamation filed in Execution Petition No. 13/39 and brought to sale may be sold for the realisation of the decree in their favour. The judgment-debtors filed objections to the effect that the decree had been passed on 22-9-1938 and since the Execution Petition No. 13/39 was dismissed on 28-12-1948, the present application having been filed more than 12 years from the date of the decree has been barred by Section 48 of the Code of Civil Procedure.

6. The two points raised in the appeal before the Supreme Court were:

(1) The previous execution petition having been dismissed, it was not pending at the time of the filing of Ext. Petn. 13/39 and therefore the later application was ft fresh application under Section 48, Civil Procedural Code.

(2) Even if the previous application was 'closed' for statistical purposes, and the decree-holders could apply for reviving those proceedings, Exn. Petn. 13/39 was a fresh execution because the properties proceeded against are different and the relief asked for was also different.

It was held that the passing of orders by the executing court using the expressions like 'closed for statistical purposes', 'struck off', 'recorded' etc., cannot tantamount to an order of dismissal, for the intention of the court in making such an order is for statistical purposes, and that it was not intended to finally dispose of the application which was kept pending. It was also observed that 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, and 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. Since on the date of the order of the executing Court, namely, 28-12-1948, the order was passed on account of the fact that the appellate court had stayed execution of the decree, it was held that Exn. Petn. No. 13/39 was still pending on the file of the executing court and that the present application is only an application to revive the same. It was contended on behalf of the judgment-debtors in that case that Exn. Petn. No. 58/53 is a fresh application. It was held that 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. Applying that test, it was held that it was not a fresh application.

7. In the present case, the first execution Petition No. 336/54 was ordered to be 'filed' since the execution had been stay-ed on 2-9-1955 and the stay operated till 18-12-1956. Execution Petition No. 255/56 was ordered to be 'filed' since the execution was staved in R, A. 11 of 1957. The third execution petition was ordered to be 'filed' by virtue of the order of injunction passed in O. S. No. 39/57 which was in operation till 30-11-1961. The fourth execution Petition No. 233 of 1960 was filed on 6-9-1960 and the order passed on 25-11-1960 was to the effect that it was 'closed as desired'. During the pendency of this execution petition, the order of injunction was operative. Hence, the intention of the executing court while passing these orders on the first four execution petitions was only to consign the papers to the file for statistical purposes and none of these orders can be construed to have been a judicial order.

8. The parties to the first Execution Petition No. 336/54 as well as to the present execution petition are the same. The reliefs claimed in the present execution petition are the same including that for realisation of the decree by selling the immovable properties which have been attached in the first execution petition and had once been brought to sale in the first execution petition. The present execution petition has been, as clarified in the memo, filed as a revival or a continuation of the previous execution petition. Hence, it has to be held that the present execution petition is only to continue the previous execution petition and not a fresh application. Though it is filed after the expiry of 12 years from the date of the decree, it is not barred under Section 48, Civil Procedure Code. It must therefore be held that the first Execution Petition No. 336/54 has not been disposed of and is still pending.

9. The next question to be considered is whether the present application is barred under the Limitation Act. It has been held in ILR 36 Mad 553, Subba Chariar v. Muthuveeran Pillai, that where an application is made to continue proceedings in a pending execution the right to apply accrues from day to day and will not be barred until three years have elapsed after the proceedings have ceased to be pending. In that case, the order in the previous execution was the dismissal for non-prosecution of the execution petition since the decree-holder failed to produce the draft proclamation. This decision was referred to with approval by the Supreme Court in S. K. Sahgal v. Kishore Khanna, AIR 1959 SC 809 wherein it has been held that a right to continue the proceeding which is pending is a right that irises from day to day and no question of bar of limitation with regard to the enforcement of such a right arises. In : AIR1940All151 , Bhan Datta v. Tulsa Kuer, the execution was stayed by an order in the original suit. On receipt of the stay order, the executing court ordered that the papers be filed and consigned to the Record room. After the disposal of the suit, the decree-holder applied for execution of the decree. It was contended on behalf of the judgment-debtors that the execution petition was barred by time, having been filed beyond three years from the date of the final disposal of the suit in which the stay order had been passed. The question whether Article 181 of Schedule I of the Limitation Act applied to such a case was referred to the Full Bench. It was contended on behalf of the decree-holders that the application for execution should be regarded merely as a step taken by the decree-holders to inform the executing court that the bar to the execution proceedings had been removed and that it should not be regarded as either a fresh application for execution or an application to revive execution proceedings. It was held that when the stay order has ceased to operate it is not incumbent on the decree-holder to make an application to set the execution proceedings in motion, but it is the duty of the executing court to proceed further with the execution and that it was unnecessary for the decree-holders to have moved the court in the matter at all. No doubt, the decree-holders might have brought the fact that the stay order ceased to operate to the notice of the executing court by means of an application, but there is no statutory provision by which it was incumbent upon them to make an application, and if therefore, they did make an application, it would not be governed by the provisions of the Limitation Act. The court considered the circumstances that may arise if no application is filed to set the suspended proceedings in motion, namely, that the proceedings may be indefinitely delayed. This contingency, their Lordships observed, can he avoided if the execution court refuses to stay proceedings sine die. It was held that Article 181 of the Limitation Act does not apply to an application to continue the execution proceedings which have been stayed earlier, and that the execution application was not time-barred.

10. In AIR 1926 Mad 453, Pattannayya v. Paltayya, an order of temporary injunction was passed preventing the delivery of the property in execution proceedings. Subsequently, the temporary injunction order ceased to he in force since the suit in which the said order was issued was dismissed. An execution application was filed beyond three years from the date of the dismissal of the suit. The question was whether the subsequent execution application was barred by time. The order passed by the Executing Court in the earlier execution proceedings on the receipt of the injunction was to the effect that another item of property was delivered to the petitioner and that the petition was recorded. It was held that if the executing court orders that the petition be lodged or recorded or be struck off, such an order is not sanctioned by the Court, it only amounts to this namely, that the petition is adjourned sine die, and that therefore the earlier execution petition was still on the record of the executing court and that the subsequent execution petition is not a further application for execution nor is it an application to revive the earlier execution petition, and no application is required to revive the execution proceeding which is pending. It was also held that it is an incorrect use of the language to revive a petition which has not been dismissed and that an application to revive it would be necessary only where the earlier application had been improperly dismissed. It also held that an application to revive would not be necessary where the dismissal is not on the merits or for the default of the decree-holder but for statistical purposes or on account of obstruction which would take time to remove. It was further held that when a court treats the matter as pending, the party should not suffer by reason of the defaults of the court or by an action of the court not sanctioned by law. It was therefore held that the original execution application was still pending, that there was no bar to its being proceeded with and that Article 181 of the Limitation Act did not apply to the facts of the case.

11. In AIR 1934 Pat 532 Banarsi Prarad v. Kirtyanand, it was held that an application for execution is a continuation of the previous execution application, where the previous application could not be proceeded with on account of a bar having been placed by the allowing of a claim, and once the bar is removed that execution can proceed and the fresh application is nothing more than an application to revive the proceeding which had to be stopped, and that there was no bar under Section 48, Civil Procedure Code. In : AIR1953Mad213 , Subbiah v. Venkanna, on receipt of the stay order, the executing court passed the order that the petition was 'struck off'. Subsequently, the decree-holder filed a fresh application to revive the original execution petition which had been struck off. It was contended that Article 181 of the Limitation Act applied and that it was necessary for the decree-holder to file an application to revive the original execution petition which had been struck off and such an application must be filed within three years from the date on which the impediment to continue the original execution petition has been removed. It was held that the order saying that the petition was struck off could not be treated as a dismissal on merits and the order should be treated purely as a ministerial or an administrative direction to keep the petition on the file of the current cases and that the execution petition is deemed to have been alive all the time and what the decree-holder presumably did when he filed the subsequent execution application was to request the court to take up the petition and to proceed with further execution, and that Article 181 of the Limitation Act will have no application to such a case. Hence, it has to be held that Article 181 of the Limitation Act does not apply since the present execution application must be considered as one only to continue the first Execution Petition No. 336/54 which has not been disposed of but is still pending in the executing Court

12. The appellant relied on the decision in AIR 1926 Pat 62, Bibi Hajo v. Har Sahay Lal.. In that case, there was an order of injunction to stay the sale in the execution proceedings till the disposal of the Appeal by the appellate court. The Executing Court passed an order in these terms: 'Let the case be dismissed at present'. The subsequent execution petition was instituted more than three years from the date when the injunction restraining the execution came to an end. It was contended on behalf of the decree-holders that the earlier execution was not finally dismissed and was still pending and that there is no limitation for an application to proceed with the case in which it was suspended. But it was held that the effect of the order in the earlier execution petition referred to above was to dismiss the execution case then pending with an intimation that an application for renewal might be made if and when the obstacle should be removed and that it was for the parties to move the court for re-instatement if so advised. It was further held that the, application by the decree-holder was necessary to put the law in motion and that even if the present application is treated to be one in continuation of the previous application, there must be some limitation for such a proceeding and that assuming Article 182 does not apply, then Article 181 must apply. The Court followed the earlier decision of the same Court wherein it was held that there must be some limitation to the continuation of the execution proceedings and the limitation would appear to be imposed by Article 181. It is seen that the order in the earlier execution petition was treated as one of dismissal subject to the condition that an application for renewal may be made if and when the obstacle to execution was removed and that it was for the parties to move the court for re-instatement and that it was necessary for the decree-holder to put an application to put the law again in motion. It was held that even if the subsequent application is treated to be one in continuation of the previous application, there must be some limitation for such a proceeding. It has not been held that the previous execution petition is not pending or that it has been finally disposed of. But even on the assumption that the previous execution petition is still pending, their Lordships held that there must be some limitation for such a proceeding and that Article 181 of the Limitation Act therefore applied. This reasoning is contrary to the principle laid down in the decision of the Supreme Court in AIR 1959 SC 809, wherein it has been held that the application for execution made in a pending execution proceeding must be treated as an application to continue the pending proceeding and that no question of any bar of limitation arises with regard to the enforcement of the right of the decree-holder to do so. Therefore, this decision must be held to be no longer good law.

13. Sri Ganapathi, the learned counsel for the appellant, next relied on the decision in : [1950]1SCR852 , Yeshwant v. Walchand. In that case, the earlier execution petition was dismissed on 9-9-1940 for non-prosecution. The subsequent application was filed after the lapse of 12 years from the date of the final decree and after three years from the date of the final order in the previous execution application. One or the grounds urged by the decree-holder was that the judgment-debtor prevented the execution of the decree against the 'Prabhat newspaper by suppressing the ownership of the same and that therefore a fresh starting point of limitation springs up in favour of the decree-holder from the date of the discovery of the fraud. It was held that fraud was committed by the judgment-debtor and that the decree-holder escaped the bar of 12 years' period as provided under Section 48, Civil Procedure Code and that it gave a fresh starting point of limitation from the date of fraud during which he can execute a decree. But it was held that the decree-holder had not established fraud within the meaning of Section 18 of the Limitation Act and had not alleged and proved that by means of fraud, the judgment-debtor bad prevented the decree-holder from the knowledge of his right to execute the decree. On that ground, it was held that the execution application was not saved under Section 18 of the Limitation Act. It was observed that in the case of the fraud of the judgment-debtor, provision is made in Section 48 (2) for enlarging the 12 years period prescribed under Section 48 and for defeating the plea of bar of limitation under the Limitation Act in the case of fraud of the judgment-debtor, provision is found in Section 18, Limitation Act, and if the particular case of fraud set up and proved is not covered by those words, there is no protection against the same in the Limitation Act The contention of the decree-holder that because of the fraud he not merely got a fresh starting point for computing the 12 years' period prescribed in Section 48(2), Civil Procedure Code but is also entitled to an extension Of the time under the Limitation Act was also negatived. The terms of the order in the previous execution application dated 9-9-1940 have not been set out in the judgment. It was not one of the contentions of the decree-holder in that case that the previous execution petition was pending on the date of the subsequent execution application in spite of the order of dismissal in the earlier execution petition and the decision has proceeded on the basis that the previous execution petition was finally disposed of and dismissed on 9-9-1940. If the previous execution petition was no longer pending, the subsequent execution petition was a fresh application and no question of continuing' the earlier execution proceeding arose, Hence, this decision also does not help the appellant.

14. The appellant next relied on the decision in AIR 1931 Oudh 351, Ganesh Lal v. Imtiaz Ali. The execution application ID that case was made more than 12 years after the date of the decree. It was contended on behalf of the decree-holder that the bar of Section 48, Civil Procedure Code did not apply since the execution of the decree was stayed for a period of 9 months and two days under an order of a competent court and that the said period should be excluded under Section 15(1) of the Limitation Act. It was held that Section 48 of the Code of Civil Procedure is not controlled by Section 15(1) of the Limitation Act, 1908 to deduct the period during which the execution had been stayed. In this case also, the Court has proceeded on the assumption that the subsequent execution application is a fresh application and no question of reviving or continuing of a pending earlier execution application arose. In the present case, it is contended on behalf of the appellant that the decree-holder is not entitled to deduct the total period during which the execution was stayed and subsequently restrained by an order of injunction and the total period of 5 years 6 months and 5 days cannot be deducted under Section 15(1) of the Limitation Act, 1908. But as has been held above, the first execution petition is still pending on the date of the filing of the present 5th execution petition and hence no question of limitation arises.

15. The appellant next relied on the decision reported in (1971) 1 Mys LI 4 = (AIR 1971 Mys 113), State Bank of Mysore v- Ramu. In that case, the previous execution petition was dismissed for non-payment of process fee for attachment. The subsequent execution petition was filed beyond 12 years from the date of the decree. The executing court had given four adjournments to the decree-holder to pay the necessary fee and oh the date of the order, the counsel for the decree-holder was present, 'but did not move the court to grant time arid made no attempts to revive the execution petition. Therefore, it was held that the order dismissing the earlier execution petition became final, that it was a proper judicial order which the executing court was competent to make and that thereby the execution proceedings stood validly terminated. In view of that finding, the subsequent execution petition was a fresh execution application which was held to be barred under Section 48, Civil Procedure Code. Since the earlier execution petition had been finally and properly dismissed by a judicial order, it could not be revived by the later execution petition. It is also not a case in which the earlier execution petition was pending on the date of the later execution petition. The appellant next relied on the decision in AIR 1951 Trav Co 179, Mohammathu Ummal v. Mohammad Ummal, In that case, the first execution petition was not judicially disposed of, but. the second execution petition was dismissed for default by a judicial order. It was held that the first execution petition cannot be deemed to be pending and that it cannot be revived by the third execution application. Since the second execution petition was dismissed by a judicial order the third execution petition was held to be a fresh execution petition. Hence, this also is not a case in which the earlier execution petition was pending on the date of the subsequent execution application. The next case relied on is AIR 1946 Mad 67, Ambujammal v. Singararmmal. In that case, the earlier execution petition filed in 1937 was dismissed as it was not pressed. It was held that this order was a final order. Hence, the subsequent execution petition filed in 1941 could not be treated as revival or continuance of the earlier execution petition which had been concluded by the order of dismissal. Hence, this case also does not apply to the facts of the present case. The next case relied on by the appellant is AIR 1964 Mys 211, Muniamma v. Bhaktavammal. In that case, the first execution petition was dismissed by the executing court on 16th August, 1955. The subsequent execution petition was presented on August 16 1958. It was contended by the judgment-debtor that since the original judgment-debtor was dead on July 23 1955, the execution application presented by the respondent should have been presented on or before July 1958 and not thereafter. It was contended on behalf of the judgment-debtors that the order made by the executing court on the earlier execution application on August 16, 1955 was a nullity as there was no valid pending proceeding after the death of the judgment-debtor in which that order could have been made. That Contention was negatived. It was observed that if the decree-holder intimates the executing court that since the judgment-debtor is dead, the execution application may be dismissed so that he might present another application and the court dismisses it on that submission, the order of dismissal made by the executing court is a final order falling under Article 182 (5) of the Limitation Act affording to the decree-holder a fresh starting point of limitation from its date. On the basis of this observation it was contended that the order passed on the 4th execution petition, Exn. Petn. No. 233/60, in this case to the effect that the petition is closed as desired by the decree-holder, amounts to a final order and that therefore, the 5th execution application should have been filed within three years as provided under Article 182 (5) of the Limitation Act. The request of the decree-holder in that case was construed as an undertaking to present a fresh application and as a request to dismiss the execution petition on August 16, 1955. Under these circumstances, the order of August 16, 1955 was construed as a final order disposing of the earlier execution petition. But in the present case, the circumstances under which the order dated 25-11-1960 was passed in the. 4th execution petition, No. 233/60, are entirely different as set out already. Hence, the order dated 25-11-1960 cannot be construed as a final or a judicial order terminating the execution proceeding.

16. The next case relied on by the appellant is the one in : AIR1933Mad325 , Bayya Naiko v. Desetti Kurpa. In that case, the execution proceeding was stayed. The order passed in the execution proceeding stated as follows:

'No final order received from District Court. Appeal intimation received. Await final orders by 5th May. Meanwhile sent up material papers for purposes of appeal.' This order was passed on 16-4-1923. The appeal in which the order had been passed was disposed of on 21-11-1924. The subsequent execution petition was filed on 8-4-1927 to continue the previous execution petition. It was held that the subsequent petition was not a fresh execution application, since no final orders had been passed on the execution petition. Applying the earlier decision of the same court, it was held that the decree-holder had three years from 21-11-1924 to apply for revival of the execution petition. It was further observed as follows:-- 'It was argued that there is no such provision in the Code to revive a petition. If that is so, it would appear that the decree-holder is in a better position as regards limitation, for, in that case the execution petition automatically revives and as the petitioner had been given no date by the Court on which to appear, it would not seem that it could either be dismissed, nor would there be any period of limitation whatsoever running against him. ....'

The subsequent execution application had been filed within three years and the same was in time even if Article 81 of the Limitation Act applied. The observations referred to above make it clear that if the previous execution application is considered to be still pending, there would be no question of limitation applicable to the subsequent application. It was no doubt held that the period of limitation for the revival of the earlier execution petition was three years following the decision in AIR 1945 Mad 785. The decision proceeds on the basis that the earlier execution petition is pending and that the subsequent application is only an application to revive the earlier execution proceeding. The decision in so far as it holds that the subsequent application must have been filed within three years from the date of the order of the earlier execution application, is contrary to the view of the Supreme Court in AIR 1959 SC 809, and must he held to be no longer good law.

17. Since the execution petition No. 233/60 has been held to be still pending on the date the 5th execution petition was filed, no question of limitation arises in view or the decision of the Supreme Court in AIR 1959 SC 809. Hence, the question whether the Limitation Act, 1908 or the Limitation Act, 1963 applies does not arise.

18. It was next urged on behalf of the appellant that in the present execution petition No. 1390/66 the prayer is for the relief of realisation of the decretal amount by sale of the immovable properties as well as the other reliefs prayed for in the first execution petition, namely Ext. No. 338/54. It is contended that in the subsequent Execution Petition No. 255 of 1956 the prayer was only for arrest of the judgment-debtor and that therefore, the decree-holder cannot ask for the reliefs which were omitted in the second execution petition. It is stated by Sri Pranesh Rao, the learned counsel for the decree-holder-respondent, that the second execution petition was filed during the period when the execution petition had been stayed i.e., between 2-9-1955 and 18-12-1956. The second execution petition is numbered as 255/56, but there is no material on record to show definitely that it was filed during that period. It has been held by the Supreme Court in : [1964]6SCR251 , Venkanna v. Bangararaju, that merely because in the subsequent execution petition, the decree-holder omitted to ask for relief against some of the properties, did not render the subsequent execution petition a fresh execution petition. The tests kid down in that case to decide whether the subsequent execution petition is a fresh one, are these:

(1) the subsequent execution petition will be a fresh execution petition if the previous application was finally disposed of.

(2) It would be a fresh application if it asked for a relief against parties or properties different from those proceeded against in the previous execution petition;

(3) It would be a fresh application if ft asked for a relief substantially different from that asked for in the earlier petition. The relief asked for in the second execution petition was one of the reliefs asked for in the first execution petition. Merely because the other relief asked for in the first execution petition was not prayed for in the second execution petition, it cannot be held that the second execution petition is a fresh execution petition. The same answer holds good in regard to the contention of the appellant in respect of the 4th execution petition Ext. No. 233/60. Moreover, the relief with regard to the sale of Immovable properties could not be asked for in the 4th execution petition since the order of injunction was in operation during the pendency of that execution petition in respect of that relief.

19. It was next contended that since in the 4th execution petition the relief asked for was not pressed, the remedies open to the decree-holder other than the realisation by tine sale of immovable properties are barred. As observed above, the present execution petition cannot be regarded as a fresh execution petition in view of the fact that the reliefs claimed in this petition are the same as in the original execution petition, namely, Execution No. 336/54, applying the tests laid down by the Supreme Court, Hence, the contention is also to be negatived.

20. It was next urged that the present execution petition ought to have been filed within three years from the date the injunction order ceased to operate, namely, 30-11-1961, and that it is barred by time having been filed beyond that period. I have already held that the first execution petition is still pending and that the present execution petition seeks to continue the already pending execution petition and that no question of limitation arises for an application as the present execution application No. 1390/66. Hence, this contention also has to fail.

21. This appeal, therefore, fails and is dismissed with costs.


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