1. This appeal arises in execution proceedings and is from an order of the learned Subordinate Judge of Dindigul confirming the dismissal of an execution application by the learned District Munsiff of Palni. The facts leading up to this appeal are the following.
2. The decree-holder who is the appellant before this Court obtained a decree in O.S. No. 1417 of 1928 on the file of the District Munsiff's Court, Udumalpet, for about Rs. 2,500 on the 30th July, 1929, against one Ayyathurai Mudaliar. The judgment-debtor died subsequent to this decree and an execution application E.P. No. 404 of 1931 was filed on the 16th July, 1931, for attachment and sale of an item of property, R.S. No. 1194/2 and two other items. No question arises in this appeal as regards the two other items and the only question is with, reference to the relief prayed for in respect of item R.S. No. 1194/2. Attachment of the property was ordered and a claim was filed by two persons, namely, Sornammal and her husband one Muthusami Mudaliar, both of whom had been impleaded as the third and fourth defendants in the suit. Their claim was on the footing that the property was not liable to be proceeded against in execution as the property of Ayyathurai and they were entitled to an interest in the property in their own right. The property originally belonged to one Sethurama Mudaliar who by a deed dated 30th September, 1883, Ex. P-1, gifted the northern portion of the property paimash 315 of the extent of 17-1/2 kulis to Meenakshiammal, one of his sisters. By another deed, Ex. P.-2 dated the 1st October, 1883, he gifted the southern portion of the property of the total extent of 20-1/2 kulis to another sister Thangathammal. Meenakshiammal died in 1919 and on the 3rd August, 1928, her sons Muthusami and Ayyathurai, and Thangathammal, the donee under Ex. P-2 executed a deed of settlement Ex. P-3. According to the construction placed upon this deed by the High Court in proceedings instituted, the result of this settlement was that the income of the property became available for payment to the creditors of Ayyathurai, the judgment-debtor, and a charge was properly created under the terms of the document on the income. It was also held that notwithstanding the death of Ayyathurai, the charge subsisted so long as the debt remained unsatisfied. Rukmani however was not a party to this document Ex. P-3 so that prima facie as against her interest in the property no charge would be created in respect of the income. The claimants contended on the construction of the document Ex. P-3 that on the death of Ayyathurai there was no attachable interest at all belonging to the judgment-debtor. This contention was upheld by the learned District Munsiff who held that the death put an end to the rights of the creditors but at the same time allowed the claim only in so far as the interest of the claimants were concerned as Rukmani was not a party to the proceeding. An appeal was taken therefrom and the learned Subordinate Judge confirmed the order of the learned District Munsiff. In a further appeal, the High Court held that the income stood charged for payment of the debts notwithstanding the death of Ayyathurai. However, before the learned Judge who dealt with the matter in C.M. S.A. No. 81 of 1934, the contention put forward on behalf of the appellant-decree-holder was apparently stated to be the right to attach an un-divided moiety and on that footing the learned Judge in his judgment stated that the income of the undivided moiety would be available for the creditor. But Clause 2 of the decretal order passed on the footing of the judgment stated as follows:
That the appellant herein (plaintiff) be at liberty to proceed in execution against the income of the said item No. 1 and not against the corpus.
The execution application No. 404 of 1931 was dismissed. Subsequently the decree-holder filed E.P. No. 227 of 1940 for the appointment of a receiver to take possession of the southern portion of item No. (the land called Nadu Kanna land 9 acres 40 cents) and the prayer in the application was as follows:
It is therefore prayed that the Court may be pleased to pass an order in consonance with the order of the High Court in A.A.A.O. No. 81 of 1934 directing the following, viz.
That the sura mentioned in this petition may be collected and paid by means of appointment of a receiver, who may be authorised (a) to take possession of the properties shown In the list filed along with this under Section 51, Order 21, Rule 11 and Order 40, Rule 1, Civil Procedure Code, order in which the suit decree has a charge and if there are (Crops) standing thereon to sell them and (A) to manage the suit properties for the benefit of the plaintiff till the suit decree is satisfied, by leasing them and collecting the lease amounts by maintaining the accounts relating to receipts and expenses and by furnishing the accounts to Court and depositing the sums in Court then and there.
Notice of this application was served on defendants 2 to 4 and on their behalf their learned advocate would appear to have made the endorsement dated the 17th July, 1940, that he had no objection to the prayer asked for in the execution application. One Mr. S. Krishnamurthi Iyer, a member of the Bar, was appointed receiver in the first instance and as he prayed that he might be relieved from the receivership, one Mr. Arunachala Goundar, a member of the Bar, was appointed receiver on the 6th August, 1940. The receiver furnished security as required by the Court and filed a security bond which was accepted on the 21st August, 1940. The decree-holder paid batta for delivery of the properties mentioned in the execution application to the receiver. The properties were not delivered to the receiver as one Lakshmanan Chettiar obstructed delivery. On the 29th August, 1940, an application, E.A. No. 300 of 1940, was filed for removal of obstruction and that application and the execution petition came on for hearing together on various dates. On the 5th March, 1941, the application for removal of obstruction was heard and it was dismissed. The dismissal would appear to be on the ground that according to the judgment passed in C.M. S.A. No. 81 of 1934 by the High Court the decree-holder was only entitled to ask for the income of an undivided moiety being realised and that in consequence the application for a receiver to take physical possession of the property and realise the rents and profits therefrom was incompetent. Following the dismissal of E.A. No. 300 of 1940, the E.P. No. 227 of 1940 was ' dismissed ' by order dated the 6th March, 1941. An appeal from the order refusing to remove the obstruction was taken to the learned Sub-ordinate Judge of Dindigul who dismissed the appeal and a further appeal to the High Court would appear to have been thrown out even at the statge of admission.
3. On the 24th June, 1943, the decree-holder filed the execution application from which the present proceedings have arisen, E.A. No. 132 of 1943. The petition was for the revival and continuance of E.P. No. 227 of 1940 by granting the relief of the appointment of a receiver and asked for in it for the purpose and with the powers stated in the said affidavit. In paragraph 13 of the affidavit in support of the application, the decree-holder stated as follows:
The charge on the income has been recognized by the High Court and it has to be enforced lor the satisfaction of the said decree. Now that a receiver cannot take up possession of any definite extent or claim joint possession of 9 acres 40 cents of the undivided half share, the income alone of the property has to be reached for the* satisfaction of my decree. A receiver has to be appointed at least for the purpose of calling upon the said Lakshmanan Chettiar to pay up the half share of the produce in respect of the entire land (exclusive of the extent released to Nataraja Othuvar), in his possession and take necessary proceedings against him and file a suit, if necessary, for the porpose of realising the income either of the undivided half of S. No. 1194/2 or of the specific plot of 9 acres 40 cents charged with the payment of the said decree should the said Lakshmanan Chettiar decline to pay the said income.
The learned District Munsiff held that this application was incompetent and barred under the provisions of Section 48 of the Civil Procedure Code, and that the previous application E.P. No. 227 of 1940 could not be considered as pending or in any sense capable of being revived. He further observed that steps should have been taken to amend the order of the High Court in C.M. S.A. No. 81 of 1944 to make it read that the decree-holder was entitled to a charge not over the income of an undivided half share in S. No. 1194/2 but over the income of a specific portion of the survey field, viz., an extent of 13 acres 40 cents lying to the south of the Wart Vaikkal mentioned in Ex. P-2. Actually the property which passed under Ex. P-2, was the southern half which equated with reference to the total area was obviously roughly put down as a half before the High Court. In the counter affidavit filed by Muthuswami Mudaliar in E.A. No. 132 of 1943, he stated in paragraph 2 as follows:
The northern portion is owned and possessed by Rukmani Ammal, grandaughter of Meenakshi Ammal and by several others in separate portions. Of the southern block, 9 acres 40 cents were owned by the said Lakshmanan Chettiar who has since parted away with his interest to a stranger and the rest of the extent is owned by the said Nataraja Othuvar.
It is quite clear that the southern portion was the one over which title passed under Ex. P-2 in favour of the settlee and it is not surprising that defendants 2 to 4 themselves assented to the appointment of a receiver before the learned District Munsiff. In fact, save as against Rukmani the decreeholder would prima facie be entitled to realise the income from the entire property. It must be noted, and it has been so found, that the obstructor Lakshmanan Chettiar had no right whatsoever in the property' as the purchase by him at a Court sale was lis pendens and so against him the decree-holder appellant is entitled to enforce all rights which he could as against his judgment-debcor Ayyathurai. The result of the decision of the High Court on the construction of Ex. P-3 was that the corpus was not available to the creditor. This by no means negatives the right of the decreeholder to secure the rents and profits either by asking for a receiver taking physical possession of the property and letting it out; or collecting the rents and profits thereof from the tenants. The learned District Munsiff having disposed of E.A. No. 300 of 1940 purported to ' dismiss ' the execution petition also and this has been taken as a final decision come to on that execution petition, dismissing it on the merits and holding that the decree-holder was not entitled to the relief prayed for. The learned District Munsiff also held that the decreeholder must be deemed to have abandoned the particular relief now sought for by him and that therefore E.P. No. 227 of 1940 could not be revived. No case of abandonment has been argued before me and I fail to see how any question of abandonment arises. The learned Subordinate Judge in appeal upheld the trial Court's order and dismissed the appeal.
4. Mr. Viswanatha Sastri appearing for the appellant contends that E.P. No. 227 of 1940 had not been finally disposed of and is capable of being revived. The prayer for the appointment of a receiver to take possession of the property specified was coupled with a prayer that he should also be enabled to manage the properties for the benefit of the plaintiff till the decree was satisfied by leasing them and collecting the lease amounts. A receiver was appointed and there is nothing on record to show that he was discharged. As I stated there was no reason why the receiver should not have been there and then authorised to take steps for obtaining possession of the property in independent proceedings or in any case to collect the rents and profits, or damages for use and occupation, from the person in possession who had no.higher rights than the judgment-debtor. No reasons were given for the dis-missal of E.P. No.227 of 1940. In a case like this where I am satisfied that the decree-holder was entitled to the assistance of the executing Court to realise the rents and profits of the property forming the subject-matter of the application, the question arises 'What is the construction to be placed on order in E.P. No. 227 of 1940?' Mr. Viswanatha Sastri has referred to certain authorities in support of his contention that the execution petition should in circumstances like this, be considered pending and be dealt with by the executing Court.
5. In Sundaramma v. Abdul Khadar (1932) 64 M.L.J. 664 : I.L.R. 56 Mad. 490, an execution application was dismissed for non-payment of batta, but in dealing with the question which arose for decision, there are certain observations which are relevant. At page 502 Sundaram Chetti, J., observed as follows:
The principle of law deducible from a long course of decisions seems to be that an application for execution which has been finally and properly dismissed cannot be revived.
At page 503 is to be found the following passage:
Where an execution petition can be deemed to have been not finally disposed of and can be treated as still pending in the eye of law, the subsequent execution application may be treated as. one for the continuance of the former one. Where the former execution application was dismissed finally, but for some reason (not due to any default or neglect on the part of the applicant) which subsequently turned out to be untenable, the later execution application would be deemed to be one for a revival of the former one.
In passing I may observe that I am not prepared to say that there was any default or neglect on the part of the decreeholder in this case.
6. Mr. V. Ramaswami Iyer, appearing for the respondents contends that whether the order of dismissal made in E.P. No. 227 of 1940 was or was not justified, is not a matter which can be considered in this appeal. He argues that the only question is whether the execution petition was terminated finally. If it was, whatever may be the reason, it ought to be considered as not capable of being revived by the present application. He also contended that the application now made for revival is for a different relief from the one asked for in the previous application and even on that footing the previous petition cannot ve revived. He referred me to the decision in Suryanarayana Pandarathar v. Gurunada Pillai (1897) 8 M.L.J. 25 : 21 Mad. 257, in which an execution application was dismissed, the applicant being relegated to a suit to establish his right. He did not file a suit but put in a fresh aplication for execution which was also dismissed. He thereafter filed a suit, obtained a decree in his favour and then filed an execution application praying for the revival of the previous application. It was held that the application was barred by limitation. This is clearly a case where an earlier execution application was dismised expressly referrring the applicant to a regular suit. Obviously reasons were given for the dismissal and I am of the view that this decision does not apply to the present case. I may refer to the recent decision in C.M.A. No. 115 of 1946(1947) 2 M.L.J. Short motes, p. 35 to which I was a party sitting with the learned Chief Justice. In that case an application by a decree-holder was made for possession of two items of properties purchased by him. Obstruction was raised with reference to delivery of one item of property and an application for the removal of obstruction was made. The application for removal of obstruction was dismissed as the obstructor claimed a right of residence during her lifetime. The decreeholder was directed to establish his right by a separate suit. Delivery of the other item was given and the application for delivery was ' recorded.' The Court held that it was the duty of the executing Court to direct such possession as could have been given to the decree-holder purchaser. Even though he was not entitled to actual possession he was entitled to symbolical possession and the application for delivery of possession was held pending and capable of being revived. In my view in the present case there was, and could be, no objection on the admitted facts for the receiver appointed to realise the rents and profits from the person in occupation or to take proceedings against him. As already observed, a receiver had been appointed and it does not appear he was discharged. This being so, it seems tome that the application which has now been filed, E.A. No. 132 of 1943 can properly be considered to be a mere continuation or a revival of the previous application. I hold the order of ' dismissal ' passed' on the 6th March, 1941, did not finally dispose of the application and that the application must be considered pending. In the light of this, I reverse the judgments of the lower Courts and direct that the execution petition No. 227 of 1940 and the present application E.A. No. 132 of 1943 be taken on file and disposed of according to law by the appointment of a fresh receiver if necessary and by directing him to take appropriate proceedings for realisation of the rents and profits of the property. The appellant will have the costs of this appeal and of the proceedings in the lower Courts. (Leave to appeal is refused).