Chandrasekhara Ayyar, J.
1. The question in this Civil Miscellaneous Appeal preferred by the decree-holder is whether the execution petition can be treated as a continuation of a priorexecutionpetition,E.P.No.26ofi935,whichwasclosedon 5th November, 1936. The present petition was filed on,14th December, 1942, that is, more than six years after the order on the previous execution petition. The learned District Judge held against the appellant and gave two reasons for his conclusion. One is that the prior execution petition must really be deemed to have been dismissed though the order stated that it was ' closed,' because no schedule of immovable property was furnished, as it ought to have been under Order 21, Rule 13, and the real intention of the decree-holder was not to proceed with the attachment of the immovable properties which he wanted but only to secure rateable distribution of the assets that had been realised in execution of a decree obtained against the same judgment-debtors in another suit by a different creditor. The second reason given' was that the present petition cannot be regarded as a continuation of the previous ?u C) ,-' r, 26 of I935> inasmuch as the reliefs now wanted are not the same as the reliefs then sought.
2. What is the meaning to be attached to the order ' closed ' made on the prior execution petition is the first question that arises for consideration. We cannot enter into the psychology of the decree-holder and find out whether he was serious when he wanted attachment of immovables or asked for that prayer only for the purpose of securing a rateable distribution of the assets that had been realised. Nor is there any support for the argument addressed by Mr. Ramanarasu that as the appellant was satisfied with the rateables that he got, he abandoned the other prayer and invited the Court to dismiss the petition. Had there been any such invitation, one yould have expected the Court to dismiss the petition instead, ot using the word ' closed,' which is generally associated in our minds with an intention to remove the execution petition from the file for statistical purposes but not to terminate it finally. In this connection, it should be remembered that even orders of dismissal have been construed to mean orders made for ftatistical purposes only Of course, everything depends upon the facts of each case. There is no hard and fast rule of interpretation. ' Closed ' may mean dismissed and ' dismissed ' may mean only closed. We have to look at the fracts for finding out what was exactly meant.
3. In this connection it is pointed out that the omission to furnish the schedule, which was probably due to the fact that the schedule was available in the execution petition (E.P. No. 172 of 1932) of the other creditor which was also being adjourned from time to time pending the holding of sales and their confirmation and which resulted in the realisation of assets, a portion of which came to the benefit of thisdecree-holder did not authorise the Court to dismiss the petition because of the change in Clause (1) of Order 21, Rule 17 brought about in Madras, which contemplates such a dismissal only after time is granted to the decree-holder to remedy the defects pointed out by the Court and there is failure on his part to comply with the requisition. We cannot assume that the Court was not aware of this change and closed the petition with the idea that it should stand dismissed. On the other hand it is but right to presume that the change in Clause (1) was within the knowledge of the Court and that it made an order consistent with what was proper. It is true, as Mr. Ramanarasu pointed out, that even with such a provision nothing prevented the Court from dismissing the application if the decree-holder asked the Court to do so, or if the Court felt that it should take such a step though itwas not in strict accordance with law. But with nothing before us to prove that such was the intention when the Court made the previous order, we shall have to interpret it consistently with the powers vested in the Court. The decisign in Sankaran Nair v. Ambu : (1925)49MLJ699 referred to by the learned Judge was under trfe rule as it stood originally before the Madras change. I am not prepared to hold therefore with the lower Court that the prior execution petition was either rejected or dismissed when the order was made that it should stand closed.
4. Now we come to the second ground, namely, that the reliefs in the two petitions are different. In E.P. No. 26 of 1935 the reliefs sought were the attachment and sale of the unmovable properties belonging to the three defendants in the suit and a rateable distribution of the assets realised by the sale of the properties in O.S. No. 5 of 1931, E.P. No. 172 of 1932. In the present petition after stating that execution should proceed against the family property belonging to defendants 3 and 4 (who are the sons of the first defendant), the mode of assistance sought from the Court is set out in these terms: and Janaki Ammal were made parties to the suit, being the first, second, third and fourth defendants respectively,. Muthuswami died during the pendency of the action, also without issue. There were eleven other defendants who were made parties as alienees of properties which had formed part of the estate.
5. By his will Velayudha Naicker appointed his son-in-law Nagalingam Pillai, his brother Murugesam Pillai and three others, Davoo Pillai, Kesava Pillai and Muthuswami Naicker as his executors. He also nominated his daughters, Papathi Ammal and Janaki Ammal, as trustees of his will. Probate was granted by this Court on the 31st August, 1910, to three of the executors, namely, Nagalingam Pillai, Murugesam Pillai and Muthuswami Naicker. At the time of the testator's death all his sons were minors, but the two elder sons were married. He described his eldest son as a drunkard, a gambler and a shameless creature; and it is apparent that he feared that his other sons might develop similar bad habits, as all they were to receive under the will were small monthly allowances, and these subject to good behaviour.
6. In the course of his directions the testator said :
My principal object is that my grandsons, that is, the sons of my son, should get my estate equally divided when they become of age until which time the estate must be managed by executors who must be our relations and also who must always be five in number if possible.
7. In the penultimate paragraph of the will he said:
My present four sons have nothing to do with my estate and if they incur debt, they are only responsible for the same as the estate is my self-acquisition.
8. It is now common ground that these provisions are to be read as a bequest of the residue of his estate to all sons of his sons in equal shares.
9. The testator left to his daughter Papathi Ammal Rs. 6,000 to enable her to buy a suitable residence. After making certain minor provisions the testator directed that the surplus income of the estate should be invested pending the division of the residue of the estate among his grandsons. No grandson had been born to him at the time of his death, and only two have been born since, the second defendant and the plaintiff. The second defendant was born in the month of May 1921 and the plaintiff on the 20th November, 1921. The possibility of the birth of further grandsons cannot, however, be ruled out during the lifetime of Aru-mugam.
10. On the 14th February, 1921, that is, before any grandson had been born the testator's sons and his surviving daughters, Papathi Ammal and Janaki Ammal decided to ignore the will and executed a deed partitioning the estate among themselves. The testator's widow was a party to the agreement, which provided for her maintenance. The executors also acquiesced in the arrangement.
11. There were three main lines of defence, namely : (1) that the will contained no devise or bequest in favour of the grandsons; (2) that as there were no grandsons born at the time of the death of the testator, the Hindu Transfers and Bequests (City of Madras) Act, 1921, did not apply; and (3) that the properties referred to in the will were not the self-acquired assets of the testator, but belonged to the joint family. The learned Judge held that the will should be interpreted as a bequest of the residue of the estate to grandsons who might be born, that by reason of the Hindu Transfers and Bequests (City of Madras) Act, 1921, a bequest to Unborn grandsons might be made and that the properties did not belong to the family, but to the testator in his own right. As we have already indicated, it is now accepted that the will must be read as leaving to the testator's grandsons the residue of his estate. The finding that the properties belonged to the testator is also accepted this Court is, however, called upon to consider and decide the question of the application of the Hindu Transfers and Bequests (City of Madras) Act, 1921, and, if it is of the opinion that the bequest in favour of unborn grandsons is valid, whether the suit is premature, as the possibility of further grandsons being born cannot be ruled out. The latter question was not raised in the pleadings and was not taken in the course of the arguments in the Court below. It was raised by this Court and it has here been fully argued. We consider that this is an important question and, different to the extent they are different, the present execution petition cannot be treated as a continuation of the old one. There are bound to be some differences owing to the sales that have been effected already. The sold items cannot be proceeded against again; but the question is whether the noji-sold items now sought to be attached and sold were comprised in the prior execution petition or rather were intended to be comprised. I use the word ' intended 'as we have to refer to E.P. No. 172 of 1932 and not merely to E.P. No. 26 of 1935.
12. I hold, differing from the lower Court, that the present execution petition is not barred and direct that it be restored to file and proceeded with' according to law and in the light of the foregoing observations against such properties only as the lower Court is able to find were sought to be proceeded against by way of attachment, and sale in the previous Execution Petition No. 26 of 1935 read with E.P. No. 172 of 1932. There will be no order as to costs.