1. This is an appeal against an order in execution made by the learned Subordinate Judge of Devakottai. The decree-holder is the appellant. The relevant dates and facts are as follows:
2. On the 3rd of November, 1934, the appellant obtained a decree against defendants 1 and 2 as the legal representatives of the estate of the defendants in the suit.
3. On the 19th of December, 1934, the appellant filed E. P. No. 418 of 1934 in which he asked for the following relief:
By directing the garnishees to pay the amount into Court and in default of such payments to sell the said debts or to appoint a receiver to collect the same and credit the same to the plaintiff in respect of the decree amount with interests and costs.
An interim order for attachment was made and on the 21st of January, 1935, the Court made the following order on the petition:
Rule absolute. Petition is recorded.
The property, the subject of this execution petition was ' an amount in deposit in L. S. T. S. P. Shop at Tinnevelly belonging to the second garnishee standing in the name of the first defendant.'
4. On the nth of February, 1935, the appellant filed E. A. No. 123 of 1935 in E. P. No. 418 of 1934 and he there prayed for the appointment of a receiver to realise the decree amount, interest and costs out of the amount in the hands of the garnishees. The order on E. A. No. 123 of 1935 dated the 10th July, 1935, was, ' may apply after the second defendant's claim is disposed of. Dismissed.' On the 25th of July, 1935, the second defendant filed E. A. No. 527 of 1935 praying the Court to raise the attachment above mentioned on the ground that the monies concerned were not those of the judgment-debtor, but belonged to the second defendant personally. On the 22nd of October, 1936, the learned Subordinate Judge of Dcvakottai allowed the second defendant's application and raised the attachment. On the 7th of December, 1936, the present appellant filed A. A. O. No. 21 of 1937 against the order of the Subordinate Judge. On the 27th of September, 1938, King and Krishnaswami Ayyangar, JJ., dismissed the appeal. On the 25th of November, 1939, the execution petition E. P. No. 72 of 1940, the subject of the appeal before us now, was filed by the decree-holder. It sought to attach some movable properties of the judgment-debtor. The Additional Subordinate Judge has dismissed that application on the ground that it was barred by limitation. Against that order the appellant appeals. He contends that E. P. No. 418 of 1934 has never been disposed of, nor has E. A. No. 527 of 1935. He further contends that A.A.O. No. 21 of 1937 filed on the 7th of December, 1936, was an application to the proper Court to take some step-in-aid of execution within the meaning of Article 182 of the Limitation Act, Sub-clause (5) and that by reason of these circumstances his Execution Petition No. 72 of 1940 was in time. The wording of the order of the 21st of January, 1935, is not clear, because the words ' Rule absolute ' have little meaning in an execution petition. There is no doubt however that the learned Judge intended to say and meant, ' Attachment absolute. The petition is recorded.' The appellant argues that this order dealt only with the attachment, that the word ' recorded ' implies that the alternative remedies sought were left undisposed of. There is of course much to be said for that contention and we will assume that on the nth of February, 1935, when E. A. No. 123 of 1935 was filed, K. P. No. 418 of 1934 was still to be treated as alive, and that E. A. No. 123 of 1935 was a continuation of that execution petition. But it seems to us that that will not assist the appellant. It is unnecessary to consider the numerous authorities of this Court which have from time to time commented on the unsatisfactory nature of such orders in execution matters. There is no doubt now that the meaning of each order has to be considered by itself and a decision come to as to what was the intention and effect of the order. We have little doubt that the order of the 10th July, 1935, finally disposed of E. A. No. 123 of 1935. It must be remembered that an order for the appointment of a receiver is an order made having regard to the relevant facts at the time of the application. The fact that the Court refuses to appoint a receiver on a certain date does not necessarily mean that owing to changed circumstances the Court will not later make the appointment. It seems to us that the Court in using the word ' dismissed ' intended to, and did finally, dispose of E. A. No. 123 of 1935. But the effect of the remark that the appellant might apply after the second defendant's claim is disposed of meant nothing more than that, if after that event, the was advised again to apply for receiver, there was nothing to prevent him doing so. If this is so, we have no doubt that, whatever life there was left in E. P. No. 418 of 1934, was taken away by the order of the 10th July, 1935 Everything had then been disposed of. The attachment had then been made absolute, and the application for the appointment of a receiver had been dismissed. Nor does it seem that the appellant thought otherwise. He never filed another application for a receiver. E. P. No. 72. of 1940, as already stated, concerned the attachment of movable properties and not the property originally sought to be attached. The appellant however put forward in a somewhat ambitions argument that E. A. No. 123 of 1935 should be treated as wholly separate from E. P. No. 418 of 1934 and that E. P. No. 418 of 1934 had never been disposed of and, we presume, never will be disposed of. We think this is an impossible proposition. If E. P. No. 413 of 1934 was not disposed of on the 21st January, 1935, the only possible position is that E. A. No. 123 of 1935 might be treated as a continuation of E. P. No. 418 of 1934. We are therefore unhesitatingly of the view that on the 10th July, 1935) there was no execution petition or application outstanding.
5. This brings us to the alternative contention of the appellant. He argues that A. A. O. No. 21 of 1937 was an application to the proper Court to take a step-in-aid of execution of the decree. We are of opinion that this contention is entirely contrary to the authorities. It is unnecessary to refer to many of them. In Kuppuswami Chettiar v. Rajagopala Aiyar (1921) 48 M.L.J. 303 : I.L.R. Mad. 4. it was held by Ayling and Venkatasubba Rao, JJ., that a statement filed by a decree-holder objecting to the judgement-debtor's application to enter up satisfaction of the decree is not a step-in-aid of execution, especially when no application for execution was then pending. Ayling, J., negatives the argument that any application, which would facilitate execution or prevent an obstacle being raised to execution, should be treated as coming within the words of the Article. He stresses that what is required is an application to take some step to advance an execution proceeding. The learned Judges express dissent from a decision of the Bombay High Court in Laxmiram Lallubhai v. Balashanker Veniram I.L.R.(1914) 39 Bom. 20 in which it was held that an appeal against an order adjudging the judgment-debtor an insolvent was a step-in-aid of execution, a view which they consider was an undue extension of Article 182. In Krishna Pattar v. Seetharama Pattar : AIR1926Mad1178 , Phillips and Madhavan Nair, JJ., held that the filing of a statement by a decree-holder objecting to the judgment-debtor's application to record satisfaction of the decree is not a step-in-aid of execution of the decree; and they cite with approval the observations of Ayling, J., in the above case. The learned Judges agreed with the trial Judge in holding that a decree-holder did not, in filing his objection statement, ask the Court to take any step-in-aid of execution, and they refer with apparent approval to the fact that Ayling and Venkatasubba Rao, JJ., had dissented from the view of the Bombay High Court in Laxmiram Lallubhai v. Balashankar Veniram I.L.R. (1914) 39 Bom. 20. In Ramasami v. Veeranna : (1927)53MLJ766 , Madhavan Nair and Curgenven, JJ., held that an application by a decree-holder for extension of time to file an encumbrance certificate was not a step-in-aid of execution. They stress, and it is of importance in the present appeal, that the application should be ' one asking the Court to take some step in furtherance of the execution of the decree.' In Veerappa Setti v. Munisami Achari (1934) 69 M.L.J. 19 : I.L.R Mad. 301 Beasley, C.J., and King, J., held that a batta application under Order 16, rule I asking the Court to summon witnesses for the purpose of showing that the judgment-debtors' objection that the decree had been satisfied was untrue was an application to take a step-in-aid of execution when the decree-holder had applied for the transfer of the decree to another Court for execution, which application was contested by the judgment-debtors. This decision, it will be seen, was based on the facts showing that, in an execution application before the Court, another application was filed asking the Court to do something, namely to summon witnesses. The learned Judges discuss Krishna Pattar v. Seetharama Pattar : AIR1926Mad1178 and point out that in that case all that had been done was that a statement had been filed by the decree-holder objecting to the judgment-debtor's application to record satisfaction, but no application had been made to the Court by the decree-holder, for example, to summon witnesses, and they cite with evident approval the observations of Phillips and Madhavan Nair, JJ.,
Two things are essential. There must be an application and that application must ask the Court to take a step-in-aid of execution. . . . The bare fart that a party took some steps would not be enough.
In our view, the decision in Veerappa Setti v. Munisami Achari (1934) 69 M.L.J. 19 : I.L.R. Mad.301 is entirely in accord with the trend of authorities of this High Court. In Govindas Rajaramdasv. Ganapat-doss Narottamdas I.L.R.(1923) 47 Bom. 783 Macleod, C.J. and Crump, J., have held explicitly that an appeal from an order passed in execution of a decree is not tantamount to a step-in-aid of execution within the meaning of Article 182. The learned Judges remark in a short judgment,
It certainly cannot be said that an appeal to the High Court against an order in a darkhastis an application in accordance with law to the proper Court for execution. The High Court is not a Court whose duty it is to execute decrees passed by the lower Court.
In view of the above authorities we are of opinion that neither the affidavit filed by the respondent in E. A. No. 527 of 1935 on the 31st July, 1935, nor the appeal filed by him on the 7th December, 1936, can, in any possible view, be held to be applications in accordance with law to the proper Court to take some step-in-aid of execution of the decree. There has been no application to a proper Court and no Court has been asked to do anything to aid execution.
6. We will notice two further arguments put forward by the appellants. He argued that there had been an appeal (that is, his own appeal) which should be the starting point of limitation under Article 182 (2) and he relied on the decision of King and Krishnaswami Ayyangar, JJ., Sriramachandra Rao v. Venkateswara Rao : AIR1939Mad157 . We do not consider this decision assists the appellant. In that case the plaintiff obtained an ex parte decree against the defendant. There was an application to the Court to set aside the ex parte decree. It was dismissed and against the order of dismissal there was an appeal to the High Court. The learned Judges held that an appeal against an order refusing to set aside an ex parte decree was an appeal within the meaning of Article 182 (2) and they considered that the appeal should be an appeal which was likely to affect the decree sought to be executed. We do not consider that we can extend the meaning further so as to include all appeals in execution matters as well as appeals against the decree in the suit and the trend of authorities to which we have already referred to is against this contention. It is not suggested that the time occupied in resisting an application by a third party or the judgment-debtor likely to prejudice not the decree but its execution could furnish a new starting point, but we are asked to say that an appeal from an order made on such an application would do so. In support of his argument that under Article 182 (2) of the Limitation Act there has been an appeal and that the starting point in this case should be the date of the dismissal, namely, the 27th of September, 1938, the appellant has strongly relied on certain observations of the Judicial Committee. He cites the case of Nagendranath De v. Sureshchandra De . their Lordships observe:
There is, in their Lordships' opinion, no warrant for reading into the words quoted any qualification either as to the character of the appeal or as to the parties to it; the words mean just what they say. The fixation of periods of limitation must always be to some extent arbitrary, and may frequently result in hardship, But in construing such provisions, equitable considerations are out of place, and the strict grammatical meaning of the words is, their Lordships think, the only safe guide. It is at least an intelligible rule that, so long as there is any question sub judice between any of the parties, those affected shall not be compelled to pursue the so often thorny path of execution, which, if the final result is against them, may lead to no advantage.
We have however no doubt that the Judicial Committee referred to an appeal which affected the execution of the decree or order in the form sought in the subsequent execution petition. On the facts before us the appeal, A.A. O. No. 21 of 1937, had no relation whatever to E.P.No. 72 of 1940. At no time was this execution petition in any way delayed or liable to be affected by the appeal which was concerned with a wholly different matter. As their Lordships point out, it is unjust that a party should be compelled to pursue ' the thorny path of execution,' when the result of the pending appeal might cause it to be infructuous. But in A. A. O. No. 21 of 1937 the only question for decision was whether execution could be levied against property A. In this execution petition execution is sought to be levied against property B and the two proceedings have nothing whatever in common. For these reasons we do not think there is anything in Article 182 (2) which assists the appellant.
7. Finally we will refer to a decision of the Judicial Committee, Maharaj Bahadur Sing v. A. H. Forbes (1929) 57 M.L.J. 184 which assists us if it is relevant to consider whether E. P. No. 72 of 1940 could be held to be a continuation of any previous application in execution. When considering whether an execution petition could be regarded as a continuation of an earlier petition, their Lordships observe at page 189,
Their Lordships have no doubt that the applications of 22 and January, 1915, 19th March, 1917 and 23rd November, 1918, were essentially different in character from the application of 9th May, 1908 and they are inclined to the view that the decree-holders had abandoned the application of 9th May, 1908, which proceeded on the footing that their decree created a charge on the tenure, but in any event they are clearly of opinion that the combined effect of these previous applications marks such substantial departure from the original application of 9th May, : 1908, as to make it impossible to hold that the application of 2nd December, 1922 was a continuation of the application of 9th May, 1908.
So, in the appeal before us, the petition on the facts was, as in the case before their Lordships, essentially different in character from any previous application and we take the view in this case that the decree-holder had abandoned his previous application and in any event, the application E. P. No. 72 of 1940 marks such a substantial departure from the previous application that it is impossible to hold that it was a continuation of it.
8. For the reasons which we have given this appeal must be dismissed with costs.