Subba Rao, J.
1. This appeal by certificate raises the question of the applicability of s.48 of the Code of Civil Procedure, hereinafter called the Code, to the facts ofthe case.
2. The relevant facts are as follows : In the year 1928 one PentapatiVenkataramana filed Original Suit No. 3 of 1928 in the Court of the SubordinateJudge, Visakhapatnam, against 29 defendants for accounts of dissolvedpartnerships and for the recovery of amounts due to him. On March 30, 1932, thesuit was dismissed by the learned Subordinate Judge. On appeal, the High Courtof Madras set aside the decree of the Subordinate Judge and passed a joint andseveral decree in favour of the plaintiffs and defendants 24 to 27 for a sum ofRs. 54,350 with interest thereon. On February 15, 1939, the decree-holdersfiled 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 31items of properties described by them in the schedule (Ex. B-4) annexedthereto. The judgment-debtors filed an objection to the attachment of some ofthe said items, but that was dismissed. Against the order of dismissal of theirobjection, 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 aninterim 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 toproceed with the execution, the judgment-debtors filed another applicationbeing E.A. No. 575 of 1945, alleging that the decree has been adjusted and forrecording satisfaction of the decree. But the said application was dismissed onDecember 12, 1945. The judgment-debtors went up on appeal to the High Court againstthe said order of dismissal and obtained an interim stay of E.P. 13 of 1939. OnSeptember 9, 1947, the High Court allowed the appeal and remanded the case tothe trial court for ascertaining whether there was an adjustment of the decreeas pleaded by the judgment-debtors. On remand, the executing court againdismissed the application filed by the judgment-debtors. Against the saidorder, the judgment-debtors again preferred an appeal being C.M.A. No. 127 of1948, in the High Court of Madras and obtained an interim stay of theexecution. The interim order was made absolute on November 24, 1948. As theexecution of the decree was stayed by the High Court, the executing court madean 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, inE.P. 13 of 1939 for reopening the said execution petition and for proceedingwith the execution of the decree. The learned Subordinate Judge, holding thatthe previous execution petition was merely 'closed', directed thedecree-holders to file a regular execution petition. On October 11, 1952, thedecree-holders filed E.P. No. 58 of 1953 to continue further proceedings inE.P. 13 of 1939 as per the order made in E.A. No. 142 of 1952 passed on October4, 1952. In that petition the decree-holders prayed that the propertiesmentioned in the draft proclamation filed in E.P. No. 13 of 1939 and brought tosale may be sold for the realization of the money due to the decree-holders andthe proceeds applied for the discharge of the decree-debt. The judgment-debtorsfiled a counter-affidavit pleading, inter alia, that the decree sought to beexecuted was made on September 22, 1938, and that as E.P. No 13 of 1939 wasdismissed on December 28, 1948, the present application, having been filed morethan 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 entitledto continue the previous execution petition, E.P. 58 of 1953 was freshapplication, as in form as well as in details it materially differed from theoriginal execution petition. On appeal, a division Bench of the Andhra PradeshHigh Court took a different view and held that E.P. 13 on 1939 was merelyclosed for statistical purposes and, therefore, the execution petition filed in1939 was still pending and the decree-holders were entitled to proceed withthat petition. The High Court further observed that the said position was notcontested by learned counsel for the respondents. We understand thisobservation only to mean that learned counsel appearing for the respondentstherein did not contest the position that if the execution petition was notdismissed but was only closed for statistical purposes, the decree-holders wereentitled to proceed with that petition. The High Court remanded the case to thelearned Subordinate Judge for disposal according to law after considering theother contentions of the judgment-debtors. Hence the appeal.
3. Mr. Suryaprakasam, learned counsel for the appellants, raised before usthe following two points : (1) The previous execution petition was dismissedand, therefore, it was not pending at the time of filing of E.P. 58 of 1953,and, therefore, the later execution petition was a fresh application within themeaning of s. 48 of the Code; and (2) even if the previous application was onlyclosed for statistical purposes, and the decree-holders could apply forreviving those proceedings, E.P. No. 58 of 1953 was a fresh execution petitionbecause the parties and the properties proceeded against were different and therelief asked for was also different.
Before we consider the question raised, it would be convenient at the outsetto look at the material provisions of s. 48 of the Code. It reads :
'(1) Where an application toexecute a decree not being a decree granting an injunction has been made, noorder for the execution of the same decree shall be made upon any freshapplication presented after the expiration of twelve years from -
(a) the date of the decreesought to be executed.' This section corresponds to paras 3 and 4 of s.230 of the Code of 1882. The relevant part of the section read :
'Which an application toexecute a decree for the payment of money or delivery of other property hasbeen made under this section and granted, no subsequent application to executethe same decree shall be granted after the expiration of twelve years from anyof the following dates :...............'.
A comparison of the said twoprovisions shows that the phrase 'fresh application' has beensubstituted for 'subsequent application'. This amendment becamenecessary in order to make it clear that the application mentioned in s. 48 ofthe Code is a fresh substantive application and not an application to revive orcontinue a substantive application already pending on the file of the court.
The question, therefore, iswhether E.P. 58 of 1953 is a fresh application within the meaning of s. 48 ofthe Code. The answer to this question mainly turns upon the question whetherthe previous application i.e., E.P. 13 of 1939, was finally disposed of by theexecuting court. From the narration of facts given by us earlier it is clearthat the said execution petition was 'closed' for statisticalpurposes. As the High Court stayed the execution pending the appeared filed bythe judgment-debtors, the decree-holders were not in a position to proceed withthe execution petition, and, therefore, it was closed. Some argument was raisedon the question whether the said execution petition was closed for statisticalpurposes or was dismissed that it was contended that under the Code of CivilProcedure there was no power conferred upon a court to close executionproceedings 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 actualorder dated December 28, 1948 has not been placed before us. But in E.P. 58 of1953 in clause 6 thereof it is mentioned that E.P. No. 13 of 1939 was closed onDecember 28, 1948. In the counter-affidavit filed by of the judgment-debtors itis stated that E.P. 13 of 1939 was dismissed on December 28, 1948 and notmerely closed. After the disposal of the appeal by the High Court and beforethe filing of E.P. No. 58 of 1953, the decree-holders filing E.A. No. 142 of1952 for reopening E.P. No. 13 of 19 On that petition the learned SubordinateJudge made the following order :
'The previous E.P. wasmerely closed. Petitioner may file a regular on which proceedings will continuefrom 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. Thelearned Subordinate Judge proceeded on the assumption that the previousexecution petition was pending, though he dismissed the present executionpetition on another ground. This factual position was not contested even in theHigh Court, for the High Court stated that the previous application was merelyclosed for statistical purposes. In the circumstances we must proceed on theassumption that the Execution Petition 13 of 1939 was only closed for statisticalpurposes.
4. Learned counsel for the appellants contends that the Code of CivilProcedure does not sanction the passing of an order closing an executionpetition for statistical purposes and that practice has been condemned bycourts. Under O. XXI. r. 17(1) of the Code, the Court may reject an executionapplication 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 showcause 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 offersany objection to the execution of the decree, the Court shall consider suchobjection and make such orders as it thinks fit. Under r. 57 thereof,'Where any property has been attached in execution of a decree but byreason of the decree-holder's default the Court is unable to proceed furtherwith the application for execution, it shall either dismiss the application orfor any sufficient reason adjourn the proceedings to a future date.....'.Relying upon these provisions it is argued that though the power of the courtto make an order under O. XXI, r. 23(2) is wide and it can make any order itthinks fit, it can only make one or other of the two orders mentioned in r. 57when it could not proceed with the execution because of the default of thedecree-holder. It is said that in this case the decree-holders could notproceed with the execution in view of the stay order of the High Court and,therefore, the executing court could have either dismissed the application oradjourned the proceedings to a future date and it has no jurisdiction to passan order closing the execution for statistical purposes. It is further saidthat an order closing proceedings for statistical purposes is not an order ofadjournment, for an order of adjournment implies that the application is on thefile, whereas the object of closing is to take it out of the file, thoughtemporarily, and, therefore, the order, in effect and substance, is one ofdismissal. Assuming that the order was made by reason of the decree-holder'sdefault within the meaning of O. XXI, r. 57 of the Code, we find it difficultto attribute something to the court which it never intended to do. It is truecourts have condemned the practice of executing courts using expressions like'closed', 'closed for statistical purposes', 'struckoff', 'recorded' etc., and they also pointed out that there wasno provision in the Code of Civil Procedure for making such orders : see BiswaSonan Chunder Gossyamy v. Binanda Chunder Dibingar Adhikar Gossyamy I.L.R. (1884) Cal. 416; Vadlamannati Damodara Rao v. The Official Receiver,Kistna I.L.R. 1946 Mad. 527; Moidin Kutty v. Doraiswami : AIR1952Mad51 . It is not necessary to express our opinion on the question whether suchprocedure is sanctioned by the Code of Civil Procedure or not; but assumingthat the court has no such power, the passing of such an order cannottantamount to an order of dismissal, for the intention of the court in makingan order 'closed' for statistical purposes is manifest. It isintended not to finally dispose of the application, but to keep it pending.Whether the order was without jurisdiction or whether it was valid, the legalposition 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 bepending on the file of the Court. That apart, it is not the phraseology used bythe executing court that really matters, but it is really the substance of theorder that is material. Whatever terminology may be used, it is for the courtto ascertain, having regard to the circumstances under which the said order wasmade, whether the court intended to finally terminate the executionproceedings. If it did not intend to do so, it must be held that the executionproceedings 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 onthe file of the executing court and that the present application is only anapplication to continue the same.
5. Even so, it is contended that E.P. No. 58 of 1953 is a fresh application.Learned counsel compared the recitals in E.P. 13 of 1939 and E.P. 58 of 1953and pointed out that all the respondents in the former execution petition arenot respondents in the present execution petition; that legal representativesof some of the defendants are added to the present execution petition; that thedecree-holders did not seek to proceed against all the properties against whichthey sought to proceed in the former execution petition, and that one of thereliefs, namely, to attach the amount deposited in court, asked for in thepresent execution petition is a completely new one and that, therefore, thepresent execution petition is, both in form and in particulars, completely adifferent one. But a comparison of the two execution petitions shows that theparties are the same : the new parties added in the present execution petition areeither the legal representatives of the deceased parties or the representativeof a party who has become insolvent. In the present execution petition thedecree-holders are not proceeding against any property against which they didnot seek to proceed in the earlier proceeding; they only omitted some of theproperties. The decree-holders cannot be compelled to proceed against all theproperties against which at one time they sought to proceed. The relief by wayof attachment of the amount deposited in court had been asked for by thedecree-holders by a separate petition, namely, E.A. No. 143 of 1962, and thatwas dismissed and, therefore, nothing turns upon it. The result is, therefore,in substance under both the execution petitions the decree-holders seek toproceed against the same parties and against the same properties.
6. The law on the subject is well-settled. In Bandhu Singh v. KayasthaTrading Bank I.L.R. (1931) All. 419, where a decree-holder included newitems of property for attachment in an application for execution of his decreefiled 12 years after the date of the decree, it was held that the applicationto attach fresh property was a fresh application within the meaning of s. 48 ofthe Code and, therefore, having been made more than 12 years after the date ofthe decree, could not be entertained. In Sri Raja D. K. Venkata Lingama Nayanimv. Raja Inuganti Rajagopala Venkata Narasimha Rayanim I.L.R. 1947 Mad. 525where an application was made for amending a pending execution petition with aview to attach another property not included in the pending application, thecourt held that the application for amendment could not be allowed, as it wasmade beyond the period of 12 years from the date of the decree. In IppaguntaLakshminarasinga Rao v. Ippagunta Balasubrahmanyam A.I.R. 1949 Mad. 251,where the execution petition filed beyond 12 years of the decree asked for anew relief not asked for in the earlier execution petition, it was held thatthe subsequent application, having been filed beyond 12 years, was hit by s. 48of the Code. In Gajanand Sah v. Dayanand Thakur I.L.R. (1942) Pat. 838,the decree-holder was not allowed to substitute a new property different fromthe one against which he wished to proceed in the earlier application on theground that 12 years had expired from the date of the passing of the decree.
7. The result of the decisions may be summarized thus. An application madeafter 12 years from the date of the decree would be a fresh application withinthe meaning of s. 48 of the Code of Civil Procedure, if the previousapplication was finally disposed of. It would also be a fresh application if itasked for a relief against parties or properties different from those proceededagainst in the previous execution petition or asked for a relief substantiallydifferent from that asked for in the earlier petition.
8. In this case, as we have pointed out, the parties are substantially thesame in both the proceedings, and the decree-holders are only proceedingagainst properties included in the previous application. It cannot, therefore,be treated as a fresh application within the meaning of s. 48 of the Code. Itis only an application to continue E.P. No. 13 of 1939 which is pending on thefile of the executing court.
9. That apart, the decree-holders filed E.A. No. 142 of 1952 in E.P. No. 13of 1939 expressly asking for the reopening of the said execution petition andfor proceeding with it. As we have held that the earlier execution petition isstill pending on the file of the court, the executing court will be well withinits rights in proceeding on the basis of the earlier execution petition evenwithout a new petition.
10. In the result, we hold that the order of the High Court is right. Theappeal fails and is dismissed. There will be no order as to costs.
11. Appeal dismissed.