V.R. Newaskar, J.
1. Facts giving rise to this second appeal are as follows:
2. A decree for money was obtained by the appellants against the respondents on 30-9-1930. This decree was put into execution from time to time. Last execution petition was filed on 14-12-1946. By this petition the decree-holders prayed for attachment of the moveables belonging to judgment-debtors for the realisation of their dues. The judgment-debtors raised an objection on the basis of Section 48 of Civil Procedure Code that since more than 12 years bad elapsed since the passing of the decree no fresh order for execution could nave been passed. The executing court held on 24-1950 that since the execution of decree had been stayed by lawful order the petition, for execution was not barred under Section 48 C. P. C.
At this stage the executing court asked the decree-holders to disclose what relief did they want and fixed the case for further orders on 25-10-50. On that day the decree-holder submitted a petition that the fields belonging to judgment-debtors, mentioned in the petition and in respect of which documents called 'Certificates Khatejat' had been filed, might be attached as according to him by their sale his dues could be realised. Thereupon the court passed an order for attachment of those fields on the same day. In pursuance of this order attachment was made and later the execution proceeding was transferred to the Collector for effecting the sale of those holdings on a petition submitted on behalf of the decree-holders on 13-2-1951.
The Collector returned back the proceedings holding that the land in question could not be sold being less than 15 acres due to the provisions of Section 71(2) of the Madhya Bharat Land Revenue and Tenancy Act. The petitioners thereupon submitted an application on 21-2-1952 that they wanted to continue the same execution proceedings. Both the courts below were of the opinion that it was an attempt to have a fresh application for execution in the garb of an application for continuation. They therefore held tho execution to bo incompetent and barred under Section 48 C. P. C.
3. This second appeal is directed against that order.
4. At an earlier stage of this appeal my learned brother Shrivastava J., heard the appeal and held that the execution petition was not barred under Section 43 C. P. C. since the prayer was for continuing the same execution petition which was not barred by twelve year's rule in Section 48 C. P. C. The decision reported in Shrikisandas v. Sitaram, AIR 1952 Nag 123, sought to be relied upon on behalf of the respondent was distinguished on the ground that in that case an altogether new relief, not previously prayed for, was sought though in the course of the same execution petition.
In the present case according to him what the decree-holders asked for was the initial relief of attachment of moveables. The relief remained as it was and no amendment of the petition was asked for or granted so as to abandon that relief. He therefore allowed the appeal by holding that the execution petition could not have been dismissed. The orders of the court below were set aside and the case sent back to the court of first instance for further proceedings. However it was later discovered that the guardian for one of the minor respondent was not heard. Consequently the learned Judge set aside the decree and posted the case for rehearing.
5. The same now is placed before me for hearing.
6. It is clear that in the original execution petition the decree-holder prayed for the assistance of the court by attaching moveable properties of the judgment-debtors. During the pendency of that application, after determining the question regarding bur of execution by reason of Section 48 C. P. C. the court asked him in what manner he needed assistance of the court for realisation of his dues. At that stage he submitted an application that the fields belonging to judgment-debtor might be attached. This was done and the proceedings were transferred for sale to the Collectorate. On report from there that the fields were not saleable the decree-holder sought to continue the proceedings and this time he wants the assistance of the court in securing attachment of the moveables belonging to judgment-debtor.
Question for consideration is whether the act of decree-holder in asking for attachment of the fields, involved an abandonment of relief originally asked for in the absence of any definite prayer to that effect or any order permitting alteration of relief. While it is contended on behalf of the decree-holder that the prayer made for attachment of the fields was only an additional assistance sought for and granted but that did not involve abandonment of his original prayer for attachment of the moveables, it was urged on behalf of judgment-debtor that the circumstances ought to give rise to the only reasonable inference that the decree-holder did not want attachment of moveable, abandoned it and asked for attachment of the fields.
7. Now it is beyond controversy that in case the appellant had abandoned his initial relief and then wanted to ask for it again that would be a fresh prayer and it would be unavailable to him by reason of Section 48 C. P. C. as by 21-2-1952 when he prayed for that kind of assistance again more than 12 years had elapsed even making allowance for the period for which the execution of decrees against agriculturists had been suspended under the orders of the Gwalior Ruler.
8. There is nothing in the pleadings or on the face of any order of the executing court in writing to suggest that the decree-holder when he sought attachment of the fields he did so after abandoning the initial relief and the only question is whether such an inference can be drawn from the surrounding circumstances.
9. Now the surrounding circumstances viz., the prayer for attachment of the fields as more effective way of securing realisation of the decretal amount is consistent both with abandonment ot the initial relief as being unsuitable and with having the second relief merely as an additional one.
10. Now abandonment is a unilateral act and depends upon volition of a party entitled to a right or relief and having regard to common course of human conduct a person is presumed not to give up his possible advantageous position unless he is compelled either by law or force of circumstances to do so. There is no specific provision in the Civil Procedure Code which compels a decree-holder to ask for another kind of assistance only after abandoning the first. Nor does it appear that the executing court while permitting transfer had put the decree-holder to his election. In face of these circumstances natural presumption would be that the decree-holder wanted the attachment only as an additional assistance without intending to give up his initial prayer if that kind of assistance becomes fruitless. There is nothing on record to displace that presumption. The result therefore is that we ought under the circumstances hold that the decree-holder had not given up his initial right particularly in view of the fact that the objection regarding Section 48 C. P. C. had been raised and he had narrowly escaped its adverse effect upon his claim to execution.
11. I would therefore hold agreeing with the earlier expression of opinion though to a certain extent ex parte by my brother Shrivastava J., that the execution petition in this case is not barred by Section 48 C. P. C. and the decree-holders are entitled to execute the decree by resorting to the mode which he had initially asked for namely attachment of moveables.
12. Mrs. Gandhey for the minor legal representative of judgment-debtor Onkar contended that since as against the legal representatives the decree-holders can ask for attachment of moveables belonging to Onkar an application stating what properties belong to Onkar would be a fresh application. Now as regards the moveable property in the possession of a judgment-debtor no list is necessary as will appear from Order 21 Rule 12 and the decision of Bose J., in Nathmal v. Balkrishna, AIR 1941. Nag 152 (155). It appears from the decision in Ramji Das v. Mahomed Laiq, AIR 1953 All 461 (463) which reverses an earlier decision of the same High Court in Mohd. Liaq v. Ramji, AIR 1952 All 618, that inasmuch as no list would be necessary in case the debtor had died before the decree by reason of Order 21 Rule 12 there is no reason why it should be needed where he dies afterwards.
The position of the legal representative is the same. Rut even assuming that a list in the latter can be necessary that would not affect the question regarding bar of Section 48 C. P. C. If the execution petition is within time with reference to Section 48 C. P. C., the fact that judgment-debtor died during its pendency and the execution has to be continued against the legal representatives and for doing so certain further details are to be provided for will not have the effect of treating such further acts of decree-holder in aid of his execution as tantamount to fresh application for execution.
13. The appeal is therefore allowed. Theorders passed by the courts below dismissing theexecution petition covered by those orders asbarred by time is set aside and the case is sentback to the court of first instance for execution ofthe decree by resorting to the mode asked for inthe initial execution petition dated 14-12-1946 No.294 of 1949. The appellant is entitled to his costsof this court as well as those of the court belowfrom the respondents who shall bear their owncosts.