PENTAPATI CHINA VENKANNA Vs. PENTAPATI BANGARARAJU

JUDGEMENT

(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 of the case.

(2.) The relevant facts are as follows:In the year 1928 one Pentapati Venkataramana filed Original Suit No. 3 of 1928 in the Court of the Subordinate Judge, Visakhapatnam, against 29 defendants for accounts of dissolved partnerships and for the recovery of amount due to him. On March 30, 1932, the suit was dismissed by the learned Subordinate Judge. On appeal, the High Court of Madras set aside the decree of the Subordinate Judge and passed a joint and several decree in favour of the plaintiffs and defendants 24 to 27 for a sum of Rs. 54,350/- with interest thereon. On February 15, 1939, the decree-holders files 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 31 items of properties described by them in the schedule (Ex. B-4) annexed thereto. The judgment-debtors filed an objection to the attachment of some of the said items, but that was dismissed. Against the order of dismissal of their objection, 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 an interim 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 to proceed with the execution, the judgment-debtors filed another application, being E. A. No. 575 of 1945, alleging that the decree has been adjusted and for recording satisfaction of the decree. But the said application was dismissed on December12, 1945. The judgment-debtors went up on appeal to the High Court against the said order of dismissal and obtained an interim stay of E. P. 13 of 1939. On September 9, 1947, the High Court allowed the appeal and remanded the case to the trial court for ascertaining whether there was an adjustment of the decree as pleaded by the judgment-debtors. On remand the executing Court again dismissed the application filed by the judgment-debtors. Against the said order, the judgment-debtors again preferred an appeal, being C.M.A. No. 127 of 1948, in the High Court of Madras and obtained an interim stay of the execution. The interim order was made absolute on November 24, 1948. As the execution of the decree was stayed by the High Court, the executing court made an 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, in E. P. 13 of 1939 for reopening the said execution petition and for proceeding with the execution of the decree. The learned Subordinate Judge, holding that the previous execution petition was merely "closed" directed the decree-holders to file a regular execution petition. On October 11, 1952, the decree-holders filed E.P. No. 58 of 1953 to continue further proceedings in E.P. 13 of 1939 as per the order made in E.A. No. 142 of 1952 passed on October 4, 1952. In that petition the decree-holders prayed that the properties mentioned in the draft proclamation filed in E.P. No. 13 of 1939 and brought to sale may be sold for the realization of the money due to the decree-holders and the proceeds applied for the discharge of the decree-debt. The judgment-debtors filed a counter-affidavit pleading, inter alia, that the decree sought to be executed was made on September 22, 1938, and that as E.P. No. 13 of 1939 was dismissed on December 28, 1948, the present application, having been filed more than 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 entitled to continue the previous execution petition E.P. 58 of 1953 was a fresh application, as in form as well as in details it materially differed from the original execution petition. On appeal, a Division Bench of the Andhra Pradesh High Court took a different view and held that E.P. 13 of 1939 was merely closed for statistical purposes and, therefore, the execution petition filed in 1939 was still pending and the decree-holders were entitled to proceed with that petition. The High Court further observed that the said position was not contested by learned counsel for the respondents. We understand this observation only to mean that learned counsel appearing for the respondents therein did not contest the position that if the execution petition was not dismissed but was only closed for statistical purposes, the decree-holders were entitled to proceed with that petition. The High Court remanded the case to the learned Subordinate Judge for disposal according to law after considering the other contentions of the judgment-debtors. Hence the appeal.

(3.) Mr. Suryaprakasam, learned counsel for the appellants, raised before us the following two points:(1) The previous execution petition was dismissed and, 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 the meaning of S. 48 of the Code; and (2) even if the previous application was only closed for statistical purposes, and the decree-holders could apply for reviving those proceedings, E.P. No. 58 of 1953 was a fresh execution petition because the parties and the properties proceeded against were different and the relief asked for was also different.