1. This is a judgment-debtor's appeal, arising out of an execution proceeding, against the judgment of the learned District Judge, Berhampur, allowing the decree-holder to proceed against the immovable properties belonging to the appellant as mentioned in E. P. No. 126 of 1952. Respondent 1 obtained the decree in question against the appellant and his son, respondent 2, on 16-4-37 in O. S. No. 330 of 1936, on the file of the Munsif, Berharapur.
After a number of infructuous applications to execute the decree, respondent 1 filed E. P. No. 128 of 1949, on 14-4-49 in which there were more prayers than one, viz., the arrest of the appellant;attachment of the immovable properties, and the sale of moveable and immovables belonging to the appellant. On 8-7-50, the learned District Munsif of Berhampur passed the following order:
'The judgment-debtor is committed to civil prison. E. P. closed.'
The appellant, however, preferred an appeal against the said order of committal to civil prison, and the order was set aside on 30-9-50 f learned District Judge of Berhampur. Previous to this, there were certain claim cases in respect of the judgment-debtor's properties which were the subject-matter of 5 second appeals (Second Appeals Nos. 94 to 98 of 1945) pending in this Court and ultimately the claim cases succeeded by a judgment of this Court dated 26-4-49.
Out of the aforesaid second appeals, Second Appeal No. 97 of 45 related to some of the immovable properties now in dispute. The decree-holder-respondent 1 did not take any steps until 3-7-52 while he filed another application which was numbered as E. P. No. 126 of 1952.
The prayers in E. P. No. 126 of 1952 were to revive or to bring on record E. P. No. 128 of 1949 and to put to sale the properties attached before judgment and also the properties attached under Order 21, Rule 54, Civil P. C., along with certain other new properties, after notice to the judgment-debtor, in case the decree amount is not satisfied, to attach the moveable of the judgment-debtor and to sell the same; and to rateably distribute the assets of the judgment-debtor attached in E. P. No. 26 of 1951 of the Subordinate Judge's Court, Berhampur. The judgment-debtor-appellant's objections were that E. P. No. 128 of 1949 cannot be revived, nor can this execution petition be treated as a continuation of the previous petition, and further averred that the properties, other than those mentioned in the previous execution petition, cannot be sold in E. P. No. 126 of 1952 as this petition is a fresh petition as far as the new properties that are appended to the schedule are concerned, and is hit by Section 48, Civil P. C.
2. The learned Munsif treated the present execution petition as a continuation of E. P. No. 128 of 1949, and rejected the contentions raided by the judgment-debtor. On appeal, the learned District Judge upheld the order of the Munsif and allowed the decree-holder-respondent 1 to proceed with E. P. No. 126 of 52. It is against this order that the present appeal has been filed.
3. Mr. H.G. Panda, learned counsel on behalf of the appellant, contended that E. P. No. 126/52 cannot be held to be in continuation of the previous E. P. No. 128 of 1949, which was closed on 8-7-50. His next contention was that even if the present execution petition is held to be in continuation of the previous execution petition, it will be deemed to be a fresh petition as far as the new items of properties, that is, items 4 to 6 of the schedule are concerned, and the same is hit by Section 48, Civil P. C.
Mr. Panda's first contention is bound to fail, because E. P. No. 128 of 1949, cannot be held to have been disposed of effectively and validly in one of the ways known to the law. There were more than one prayer in the previous execution case; and by ordering the detention of the judgment-debtor-appellant in civil prison, it cannot be said that the petition has been really, effectively and validly disposed of.
In this connection reference may be made to a decision of the Madras High Court reported in Mathuveeranna Chettiar v. Muthuvenkatarama Chettiar, AIR 1951 Mad 711 (A), where the learned Judges while discussing the meaning and import of the word 'closed' said as follows:
'The correct principle has been laid down by the District Munsif, Tiruchirapalli, viz., that if an execution petition is 'struck off', lodged', 'recorded' or 'closed', while yet the reliefs prayed for or some of them remain undisposed of without being covered by final orders either granting or refusing those reliefs, then the petition will continue to be on the file of the Court, despite its being 'struck off', 'lodged', 'recorded' or 'closed'.'
Therefore, where an execution petition is ordered by the Court to be 'closed' for statistical purposes, such order cannot be held to be a final order and a fresh application filed, as a result of the former petition having been closed for statistical purposes, cannot be regarded in law as being a fresh application, but an application to revive or continue the former application. In this view of mine, I am supported by a judgment of Leach C. J., reported in Damodara Rao v. Official Receiver, Kistna, AIR 1946 Mad 170 (B).
4. The next contention of Mr. Panda was that even if the latter application is held to be in continuation of the former application, the new properties added to the schedule in the latter application, after the expiry of 12 years, was hit by Section 48, Civil P. C. There seems to be some force in this argument.
It is admitted that in E. P. No. 128 of 1949, though no specific schedule was given, it was mentioned that the properties of the judgment-debtor attached before judgment and the properties attached under Order 21, Rule 54, Civil P.C., were to be sold for the realisation of the decretal dues, where-as in E. P. No. 126 of 1952 besides the immovable properties under attachment before judgment and under Order 21, Rule 54 covered by items 1, 2 and 3 (survey numbers 643, 621 and 629), three other fresh items of properties (survey numbers 1104, 1102/1 and 1071/2) were added. Therefore, it is clear that so far as the fresh properties are concerned, E. P. No. 126 of 1952 must be held to be a fresh application and is hit by Section 48, Civil P. C. Mr. Panda in support of his contention relied upon a decision reported in Gajanand Sha v. Dayanand Thakur, AIR 1943 Pat 127 (C). In that case, the decree-holder filed an application stating that the sixth property had been wrongly described in the execution petition and accordingly he should be allowed to amend the petition by inserting a new description at a time when the decree had already become time-barred under Section 48, Civil P. C. Fazl Ali J. (as he then was) held that:
'The view which has been generally taken as to the meaning of Order 21, Rule 17 is that it is intended to deal with only formal amendments but for which the application for execution or attachment will not be regarded as complete. For example, under Rule 11, the judgment-debtor is required to state such details as the number of the suit, names of the parties, the date of the decree, etc., in his application, and if upon scrutiny of his application it appears that any of these details is missing in the application, the Court may give an opportunity to the decree-holder to remedy the defect.
Similarly what Order 21, Rule 13 contemplates is that the property which is sought to be attached should be described in such a way in the application for attachment as to show that the property is identifiable. If, therefore, there are found wanting in the description such details as are necessary for the proper identification of the property, the Court has full power to allow the decree-holder to remove the defect by supplying such details.
Rule 17, however, was never intended in my opinion, to enable the decree-holder to ask the Court to delete from his application a property which is fully described and to substitute in place thereof another property with a totally differentdescription. In my opinion, therefore, the present case cannot be said to be covered by Order 21, Rule 17.'
It was further held in that case that:
'Where the decree-holder wishes by means of a subsequent application merely to correct a mis-description of the property mentioned in his application for execution, his application may be. regarded as a continuation of that application; but where he tries to substitute a new property which is quite different from the property against which he wished to proceed in the first instance, his application must be regarded as a fresh application for execution.'
A similar view was taken by the Patna High Court in an earlier decision reported in Ram 'Ranbijaya Prasad Singh v. Kesho Prasad Singh, AIR 1941 Pat 635 (D). Thus, it is quite clear that the decree-holder should not be allowed, after the expiry of the period of limitation, to execute the decree against, the property which was not specified in the application originally presented.
5. Mr. Panda also relied upon a decision of this Court reported in Dolagobinda Sahu v. Chakradhar Mohapatra, ILR (1955) Cut 156: ( (S) AIR 1955 Orissa 94) (E), where it was held that the Court has power, apart from the provisions of Order 21, Civil P. C., to amend an execution petition by addition of fresh properties to the list of properties appended to the original execution petition; provided the petition for amendment is filed before the expiry of the period of 12 years' limitation prescribed by Section 48 of the Code.
6. Reliance was also placed upon a decision reported in Venkata Lingama Nayanim Bahadur Varu v. Rajagopala Venkata Narasimha Rayanim Bahadur Varu, AIR 1947 Mad 216 (P). In that case Patanjali Sastri J., (as he then was) while dealing with Section 48. Civil P. C. held that:
'It seems to me that, under such a schedule, every application requiring the Court to proceed against a particular property is a substantive application for execution and an application for attachment and sale' or for sale without attachment of the property, B where a previous similar application in respect of property A has succeeded or failed or is still pending, is a fresh application for execution and cannot be treated as one for amending and continuing the prior application, although the prayer in the later application may be worded in that manner.
Where no question of limitation arises, it is, of course, immaterial how the subsequent application is regarded, but when it is made beyond the period of limitation, its real character assumes importance and must be determined, paying more regard to the substance of the matter than to the form or the words used.'
Sulaiman J., appears to have taken a similar view in a case reported in Bandhu Singh v. K. T. Bank, Ltd., Gorakhpur, AIR 1931 All 134 (G).
7. Mr. K.K. Bose, learned counsel for the decree-holder-respondent on the other hand contended that his previous petition (E. P. No. 128 of 1949) was not a regular petition under Order 21, Rule 17 and it was incumbent upon the Court to call upon the decree-holder to amend the petition then and there or allow him such time within which he was to rectify the defect; and the Court having failed in its duty, the decree-holder must now be allowed to amend his petition in E. P. No. 126 of 1952. Order 21, Rule 17(1), Civil P. C., which prescribes the procedure on receiving an application for execution of a decree is in the following terms:
'On receiving an application for the execution of a decree as provided by Rule 11, Sub-rule (2), the Court shall ascertain whether such of the requirements of Rules 11 to 14, as may be applicable to the case, have been complied with; and, if theyhave not been complied with, the Court may reject the application, or may allow the defect to be remedied then and there or within a time to be fixed by it.'
Mr. Bose relied upon the Patna amendment of the above rule which was subsequently adopted by this Court and is in the following terms:
'The Court shall allow the defect to be remedied then and there or within a time to be fixed by it, and, if the decree-holder fails to remedy the defect within such time, the Court may reject the application.'
Mr. Bose in support of his above contention relied upon a decision of the Supreme Court reported in Jugal Kishore v. Raw Cotton Co. Ltd., (S) AIR 1955 SC 376 (H). That was eventually a case under Order 21, Rule 16 which deals with applications for execution by transferee-decree-holder.
But while dealing with the said application their Lordships observed that the executing Court after receipt of the execution petition should have scrutinised the application as required by Order 21, Rule 17(1) and if it had found that the requirements of Rules 11 to 14, as may be applicable, were not complied with the Court should have rejected the application or allowed the defect to be remedied then and there or within a time to be fixed by the Court. Therefore, if the conditions as laid down in Rules 11 to 14 of Order 21 are complied with, an application cannot be said to be defective under Order 21, Rule 17, Civil P. C., and once it is held not to be defective, the Court has no further duty.
Mr. Bose further relied upon a decision reported in Mahomedbhai Samsuddin v. M. A. Dawoodbhai & Co., AIR 1938 Bom 405 (I). That was a case in which an application for execution by attachment of property was filed by the decree-holder. In the execution petition, the particulars of property to be sold were not mentioned at all. It was held that under Order 21, Rule 17, the Court or its officer must ascertain that an execution application complies with all the necessary requirements.
It is, however, open to the Court at any time to allow an amendment in a proper case in order to cure any defect in such petition for execution. Even apart from this power under Order 21, Rule 17(1) the Court can in its general power allow such amendment; and in the present case, I have already mentioned that the properties under attachment before judgment and the properties under attachment under Order 21, Rule 54, Civil P. C., were mentioned in the original execution petition. But no schedule was appended thereupon as the disputed properties were the subject-matter of the claim cases, in Second Appeals Nos. 94 to 98 of 1945 of this Court.
Hence the previous execution petition cannot be said to be defective under Order 21, Rule 17(1) and as such the above case does not support the contention advanced by Mr. Bose. Mr. Bose next referred to a case reported in Divakaran Nambudiripad v. Brahmadathan Nambudiripad, AIR 1945 Mad 241 (J), where, while taking a similar view, Mockett J., held that:
'There is no option or discretion in the Court with regard to ascertaining whether the requirements of Rules 11 to 14 have been complied with. Where the effect of an execution petition is that the petition is, apart from the moveable properties, aimed at the immovable properties also belonging to the judgment-debtors, but the same is defective in view of the fact that particulars such as are required by Rule 13 are not given it is the duty of the Court to return the petition for amendment to the petitioner after giving suitable time to enable the defects to be remedied. If no such action is taken by the Court, an amendment can be allowed under Order 21, Rule 17 even after lapse of twelve years from the date of decree.'
A similar view has been taken by the Patna High Court in a case reported in Bed Narain Singh v. Bhuneshwari Kuer, AIR 1942 Pat 295 (K).
8. Mr. Bose then urged that he had filed an application under Section 48(2)(a), Civil P. C. in this Court. Section 48(2)(a) lays down that nothing in that section shall be deemed to preclude the Court from ordering the execution of a decree upon an application presented after the expiration of the said term of 12 years where the judgment-debtor has, by fraud or force, prevented the execution of the decree at sometime within 12 years immediately before the date of the application, or to limit or otherwise affect the operation of Article 183 of Schedule 1, Limitation Act, 1908.
There is nothing on record to show that the decree-holder was prevented from executing his decree by fraud or force employed by the judgment-debtor at sometime within the period of 12 years immediately before the date of application, and therefore the application is bound to fail.
9. Reliance was placed upon a Pull Bench decision of the Hyderabad High Court in Venkappa v. Lakshmikant Rao. (S) AIR 1956 Hyd 7 (L). It was held in that case that where the execution petition is a fresh petition and not one in continuation of or by way of revival of a previous petition, it would be barred by Section 48, Civil P. C.
Their Lordships relying upon a decision of the Judicial Committee reported in Oudh Commercial Bank Ltd., Fyzabad v. Bind Basni Kuer, AIR 1939 PC 80 (M) held that it is a well-established principle that a 'fresh application' which is substituted for the words 'subsequent application' occurring in the old section is a substantive application for execution, and not merely ancillary or incidental to a previous application and the Court must be guided by the substance of the application and not by its form.
Mr. Bose last of all relied upon a decision of the Bombay High Court reported in Hanamappa Shiddappa v. Ningappa Rangappa, AIR 1948 Bom 116 (N), where it has been held that the Court had a reasonable discretion to accept the amendment. The decree-holder was not shown to have been guilty of any lack of- diligence in prosecuting his execution and it will be altogether unfair to him to refuse his amendment in view of the circumstances of the case.
I do not see how this case can be of any assistance to Mr. Bose, when we find that the decree-holder has not taken any steps in between 30-9-1950, the date on which the District Judge of Berhampur set aside the committal of the judgment-debtor to civil prison and 3-7-1952, when the decree-holder filed the present execution case (E. P. No. 126 of 1952).
10. We would, therefore, hold that decree-holder-respondent 1 can proceed against such properties as have been mentioned in E. P. No. 128 of 1949, that is, the immovable properties under attachment before judgment and the properties attached under Order 21, Rule 54, Civil P. C., covered by items 1 to 3 in E. P. No. 126 of 1952. But he cannot be allowed to proceed against the properties which were, for the first time, appended to E. P. No. 126 of 1952, that is, items Nos. 4, 5 and 6 as mentioned earlier.
11. We would, accordingly, dismiss the appeal with the above modification and direct the decree-holder to proceed only against the properties of the judgment-debtor as mentioned in item numbers 1, 2 and 3 of E. P. No. 126 of 1952. In the circumstances there will be no order for costs.
12. I agree.