1. The question raised in this second appeal is whether the execution of the decree for money, dated the 2nd December 1874, in Original Suit No. 560 of 1873 on the file of the District Munsifs Court of Ellore, is barred by limitation under Section 230, Civil Procedure Code, or under Article 178 or 179 of the 2nd schedule to the Indian Limitation Act of 1877. The immediate application from which this appeal has arisen is execution petition No. 2828 of 1898, dated 11th October 1898, on the file of the District Munsifs Court of Gudi-vada, to which Court the decree was ultimately sent for execution by the District Munsif of Ellore, about the beginning of 1897.
2. The chief question for consideration is whether this petition is to be treated as a fresh application or as one in continuance of execution petition of the 2nd December 1886 presented to the District Munsifs Court of Bezwada, praying that the last-mentioned application (of 1886) may now be finally disposed of by sale of the landed property mentioned in the schedule thereto, which had been attached in 1887 in pursuance of that application.
3. In so far as there is a prayer for attachment and sale of the judgment-debtor's moveable and other immoveable properties, the petition can be treated only as a fresh application, but in so far as it prays for sale of property already attached, as aforesaid, it should be treated only as a continuation of the execution petition of the 2nd December 1886, if the latter has not yet been legally disposed of and is still pending. Both the Courts below held that the petition of 1886 is still pending notwithstanding that the same was struck off the file by the District Munsif of Bezwada on the 31st December 1887 and that the present application of October 1898 is not barred by Section 230, Code of Civil Procedure, inasmuch as the judgment-debtors by their misconduct amounting to fraud prevented the execution of the decree. The latter finding cannot be upheld inasmuch as it is founded upon no legal evidence, not to say that the averments made in the petition, even if true, do not show that the execution of the decree was prevented by fraud or force on the part of the judgment-debtors. No doubt they had recourse to all possible legal means for obstructing the effectual execution of the decree hitherto, and there may be reason to suspect that they also instigated the suits which were brought by some of their relations claiming as their own the lands which had been attached in 1887 in execution of the decree. But there is no legal evidence on record that the execution of the decree was at any time prevented by the judgment-debtors' fraud. So much therefore of the present application as prays for the attachment and sale of the defendants' moveable property and other immoveable property should be rejected as barred by the limitation of 12 years prescribed by Section 230, Civil Procedure Code, if not also by Article 179 of the Limitation Act, and the order appealed against should be varied to this extent.
4. The execution petition presented on the 2nd December 1886 was presented just within 12 years from the date of the decree, and it prayed for both attachment and sale of the landed property specified in the schedule thereto and, as already stated, the attachment was duly made in 1887 and in certain execution proceedings between the present litigants, which were commenced in the Bezwada District Munsif's Court in September 1890 and which eventually came up to the High Court in second appeal, it was decided, on the 20th September 1893, that the execution petition of December 1886. was not barred by limitation in September 1890 and was then legally pending, notwithstanding that it had been struck off the file on the 31st December 1887. It also appears that long after the expiration of the appeal time an appeal was preferred against the order of the District Munsif of Bezwada, dated 31st December 1887, striking the petition off the file and the said order was reversed on appeal, and the appellate decision was confirmed by the High Court on the 21st September 1893. The attachment, which had been made in 1887, had never been withdrawn under Section 275, Civil Procedure Code, and the decree not having been satisfied and the decree-holder, the respondent, not having by laches or otherwise abandoned the attachment-which under law operates as a charge upon the property attached in favour of the attaching creditor in respect of the decree-debt-the attachment was legally subsisting in October 1898 when the decree-holder applied to the Court for sale of the property under attachment.
5. It is urged on behalf of the appellant that the application of 1886 cannot be treated as still pending, that even if it be still pending it cannot serve the decree-holder any purpose and that no valid order for sale can be passed thereon and lastly, that the attachment ceased ipso facto when about the end of 1896 the Bezwada District Munsif certified to the District Munsif of Ellore the non-satisfaction of the decree in consequence of the former having ceased to have jurisdiction over the village in which the attached property is situate, which village was about April 1892 annexed to the jurisdiction of the newly established District Munsif's Court of Gudivada. The High Court decision of the 20th September 1893, above referred to it is argued, cannot operate as res judicata between the parties, firstly, because it dismissed the application made by the appellants and, 2ndly, because one of the grounds for dismissing the application was that it was not competent to a judgment-debtor to ask in execution proceedings for a declaration that the execution was barred by limitation, though it was dismissed also on another ground, that the application of 1886 was still pending and that, therefore, the execution of the decree was not barred by limitation; and further, it is argued, that even if it does operate as res judicata, it operates only as an adjudication that in September 1890 the execution petition of 1886 was still pending and that the execution of the decree was not then barred by limitation.
6. The dismissal of a suit or of an application in execution proceedings will operate as res judicata when such dismissal is consequent upon an adjudication of the right litigated between the parties. The fact that the dismissal of the appellant's application was consequent not only upon the adjudication of the right litigated but also upon the ground that in execution proceeding's, he cannot seek for relief by way of declaration as in a regular suit, cannot entitle the parties to re-open in further execution proceedings the question of right thus adjudicated upon. The appellants' pleader has failed to show, when, subsequent to September 1890, the application of 1886 ceased to be pending and how it can be barred by the law of limitation now, if it was not1 barred in September 1890 and the same be still pending. Even assuming that the decision of the High Court in September 1893 cannot operate as res judicata, it seems clear that the application of 1886 has not yet been legally disposed of and is still pending. It has repeatedly been held that an order merely striking a petition off the file is legally inoperative as a disposal of the petition, and in this case even such an order was set aside on appeal as mentioned above.
7. The application of 1886 was complied with so far as the prayer for attachment of the land was concerned, but compliance with the player for sale was put off in consequence of suits brought by certain claimants for releasing the land from attachment. In an execution application under Section 235, Civil Procedure Code, there need be no prayer for sale in addition to the prayer for attachment and under Section 284, Civil Procedure Code, the Court may order that any property under attachment or such portion thereof as may be sufficient to satisfy the decree shall be sold.
8. The question as to whether in the absence of a prayer-for sale in the application presented under Section 235, Civil Procedure Code, a distinct subsequent application for sale is necessary under law Ambica Pershad Singh v. Surdhar Lal I.L.E. 10 C. 851 and whether such application will be governed by Article 178 of the Limitation Act need not be considered in this case as the application of 1886 itself contains the prayer for sale, and the present application of 1898, so far as it applies for sale of the property already under attachment is only by way of reminder to the Court to dispose of the prayer for sale contained in the application of 1886.
9. An attachment which has been validly made by a Court and which, as already stated, creates a real charge in favour of the attaching creditor, cannot cease merely because the land attached is transferred from the jurisdiction of the Court which attached it to that of another Court or because the Court to which the decree was sent for execution certifies that it is unable to complete the execution of the decree. By dreason of Section 244, Civil Procedure Code, such charge can be enforced only by execution proceedings and not by a separate suit, and it therefore necessarily follows that there must be a Court competent to enforce the charge in execution proceedings. The Bezwada Court, to which the decree was sent for execution by the Ellore Court, held that it could not enforce the charge by sale of the attached property, as subsequent to the attachment it ceased to have jurisdiction over such property and the District Munsif of Gudivada, to whom an application was made by the decree-holder to bring the property to sale, rightly or wrongly declined to comply with the application on the ground that the decree was not sent to his Court for execution. The decree-holder thereupon moved the District Munsif of Bezwada to certify non-satisfaction to the Ellore Court and then moved the Ellore Court to send the decree for execution to the Gudivada District Munsif's Court. The Ellore Court under Section 224, Civil Procedure Code, sent to the Gudivada Court copy of the decree to be executed as well as the certificate mentioned in 224(b) and copies of orders relating to the execution of the decree mentioned in 224(c), Civil Procedure Code.
10. There is no pretence whatever in this case that the decree-holder abandoned by laches or otherwise, his application of 1886 or the attachment made in pursuance thereof. The decree-holder made numerous applications to different Courts, and at every step the judgment-debtors by various technical objections hitherto successfully frustrated his attempts to realise the fruits of the decree and of the attachment thereunder.
11. The appellants' pleader argues that the application of 1886 cannot serve any useful purpose to the respondent because it was presented to the Bezwada Munsif's Court, not by the original decree-holder Papamma Row, but by one Venkatramayya Appa Row as the transferee-plaintiff and also, because the present application was presented by Papamma Row herself, and further the appellants are not the judgment-debtors but the sons and representatives of the judgment-debtor against whom the decree was sought to be executed by the application of 1886. It is not contended that the application of 1886 was barred by limitation nor that the decree was not validly sent by the Ellore Munsif's Court to the Bezwada Munsif s Court for execution, after it had once been sent without any result to the District Munsif's Court of Masulipatam.
12. Under Section 232, Civil Procedure Code, the assignee of a decree should apply for its execution to the Court which passed the decree and under Section 234, paragraph (1) if a judgment-debtor dies before the decree has been fully executed, the decree-holder may apply to the Court which passed it to execute the same against the legal representatives of the deceased judgment-debtor. Under Section 248, if the enforcement of the decree be applied for against the legal representative of the judgment-debtor, the Court executing the decree is enjoined to issue a notice to the legal representative to show cause why the decree should not be executed against him and under Section 234, paragraph (2) the extent of the liability of the legal representative is to be determined by the Court executing the decree. Under Section 244, a question as to who is the representative of a party to the suit for the purposes of the execution of the decree is to be determined by the Court executing the decree.
13. It is contended, on behalf of the appellant, that the application of 1886 made by the transferee-plaintiff to the Munsif of Bezwada to whose Court the decree was sent for execution is bad in law inasmuch as under Section 232 it ought to have been made to the Ellore Court. This point was not taken in either of the lower Courts nor in the memorandum of second appeal nor at any previous stage in the execution proceedings. Assuming that it is the Court which passed the decree and not the Court to which it is sent for execution that should permit the assignee of a decree-holder to execute the decree, there is nothing to show that such permission was not given by the District Munsif of Ellore either when the execution of the decree was pending in his Court or subsequent thereto, after having given to the parties concerned the notice prescribed by the Section. The application of 1898 to the District Munsif of Gudivada was made by Papamtna Bow herself, and no objection has ever been made that it was not competent for her to make the said application to that Court. If there was anything in such objections, the same ought to have been taken in the lower Courts so as to afford the respondents an opportunity to show that the requisite formalities have been complied with. In Sarod Prasad v. Lahshmipati Singh 14 M.I.A. 529 their Lordships of the Judicial Committee of the Privy Council, iii overruling , an objection which was taken in the original Court itself and persisted in throughout, that a copy of the decree was not transmitted to the Court to which it was sent for execution and that consequently the attachment and sale made by such Court in execution of the decree ought to be annulled, observed as follows (at page 541]:
Assuming that, if no copy of the decree was sent, the attachment made at Dinajpore would be without valid authority, which their Lordships do not find it necessary to determine it lies on the defendant to prove that it was not transmitted. The Judge at Dinajpore acted on the certificate by attaching the lands and afterwards sold under that attachment. The maxim, therefore, omnia praesumuntur rite esse acta must prevail until the contrary is shown. It certainly is not shown by the document of the 19th March 1864, for it is there stated that 'certificates &c.;' were sent; nor by the memorandum of attachment which refers to the rookabara 'and other papers' having arrived. On the contrary, it may be presumed from them that all necessary documents were transmitted. It is said that it must be inferred from the order which preceded the document of the 19th March that it was not intended to send the copy of the decree to Dinajpore. This perhaps may be inferred from that document taken alone, but it would not be safe to act on such an inference to annul the attachment and sale, especially, when it is consistent with the language of the subsequent documents, that the copy was sent with the other papers on the 19th March or at all events, before the attachment was made.
14. As regards the other objection, that the application of 1886, even assuming it to be a valid one, could not be continued in the Gudivada Munsif's Court against the representatives of the judgment-debtor, the matter stands thus:-The judgment-debtor himself was alive in December 1886 when the application of 1886 was presented for the execution of the decree against him by attachment and sale of the lands in question, and he appears to have died some time in 1887 after the attachment was made. The appellants as the sons and legal representatives of the deceased judgment-debtor presented petition No. 1542 of 1890 to the District Munsif of Bezwada praying that the decree in question may be declared to have been barred by limitation and to be not executable and inoperative, Paparnma Row being joined as respondent to the petition. The contention raised in this petition was, as said above, carried up to the High Court and finally decided against them in September 1893. The appellants appear also to have been joined as the representatives of the deceased judgment-debtor in the suits brought by certain claimants apparently at the instigation of the appellants to release the property from attachment on the ground that it was not the property of the judgment-debtor, and numerous applications subsequently made by Papamma Row for the execution of the decree were successfully opposed on technical grounds by the appellants as legal representatives of the judgment-debtor. It is as such representatives that the appellants had any locus standi to oppose the various applications for execution of the decree against them, and the High Court's decision of the 20th September 1893, that the decree was not barred by limitation, and that the application of 1886 was still pending, necessarily implies that the decree was at that time enforceable against the appellants. The appellants themselves having intervened of their own accord both in the District Munsif's Court of Bezwada and that of Gudivada when execution of the decree was pending in those Courts, respectively, as representatives of the deceased judgment-debtor, they are estopped from contending that an order ought to have been obtained by the respondent from the District Munsif's Court of Ellore allowing execution against them as the representatives of the deceased judgment-debtor. In Sham Lal Pal v. Modhu Indan Sircar I.L.R. 22 C. 558 it was held that the power of the Court executing a decree to order execution under Section 249 against the legal representatives of a judgment-debtor is not cut down by the provisions of Section 234, C.P.C. and that the Court to which, the decree has been transferred for execution has full jurisdiction to proceed against the legal representative. It was also held in that case that the omission to apply under Section 234, C.P.C. to the Court which passed the decree, assuming that such application was a necessary preliminary to proceedings being taken against the legal representative in the Court to which the decree has been sent for execution, is only an irregularity within the meaning of Section 578, C.P.C. which did not affect the merits of the case. It is unnecessary to consider how far this decision is in conformity with the provisions of the Code and whether the distinction pointed out in Amar Chandra Banerjee v. Guru Presumad Muharjee I.L.R. 27 C. 488 between the case of an application by the transferee, plaintiff and that of an application against the representatives of a deceased judgment-debtor is well founded or not. Whatever may be the right construction of Section 234, C.P.C., when it is applied to the execution of a decree sent by the Court which passed it to another Court for execution, it is by no means clear that it will be applicable to the enforcing of an order for execution, copy of which has been transmitted under Section 224(c) to the Court to which a decree is sent for execution. Under Section 224(c) the Court sending a decree for execution has to send not only a copy of the decree, but also copies of orders passed for the execution of the decree, whether such orders were passed by itself or by another Court to which the decree had formerly been sent for execution and under Sections 225 and 226, C.P.C. copies of such orders are filed in the Court to which the decree is sent for execution, and the orders are to be executed by such Court. In the present case the order passed on the application of 1886, granting execution of the decree by attachment of the lands in question, was duly sent by the Ellore Court to the Gudivada Court, and the duty is cast on the latter to give effect to the order granting execution by attachment. Attachment is only a preliminary step for sale of the property attached or for the appointment of a receiver. The order granting the application for execution of the decree by attachment is really carried out only by selling the property and applying the sale proceeds towards the payment of the amount decreed and if, as held in Groves v. Administrator-General of Madras I.L.R. 22 M. 119 there could be no valid sale if the judgment-debtor died after attachment and before sale, unless his legal representatives are brought on the record so as to give them an opportunity of preventing the sale by payment of the amount decreed, the Court to which the decree is sent for execution along with the order for execution can enforce the order against the legal representatives of the judgment-debtor. In the above view no question of limitation arises under Article 178 or 179 of the Limitation Act of 1877.
15. The second appeal therefore substantially fails and is dismissed with costs subject to the variation already pointed out in the order appealed against.
16. I concur,