(1.) THE Second Appeal arises from concurrent orders overruling the judgment -debtor's objection to execution of the decree. The only point raised in second appeal is, that execution is barred under Section 48 of the Code of Civil Procedure. The decree was passed on 20 -12 -1111 corresponding to 4 -8 -1936. The last execution petition about which objection is raised is one filed on 12 -6 -1954, beyond 12 years of the decree. The decree -holder's case is that the execution petition immediately preceding this viz. E.P. No. 833 filed oft 18 -11 -1123 was not judicially disposed of. A few facts necessary for the decision of the Second Appeal may be stated. On 20 -6 -1120 E.P. No. 572 was filed by the decree -holder praying for the attachment of the decree in O.S. No. 170 of 1119 obtained by the judgment -debtor. Attachment was allowed but the Execution Petition was dismissed on 31 -10 -1120 without mentioning that the attachment would continue. However the parties and the court proceeded thereafter on the basis that the attachment continued. The next execution petition filed on 25 -12 -1121 was dismissed on 25 -12 -1121 with a specific direction that the attachment of the decree would continue. E.P. No. 833 was the next one filed in the case. This was once dismissed for default on 7 -11 -1124 but was restored to file on 4 -11 -1125 and was finally dismissed on 14 -11 -1950. The question for decision is, whether the order of dismissal on 14 -11 -1950 was judicial or only ministerial. The prayers in the execution petition were :
(2.) THE facts which I have stated above in some detail clearly show that the dismissal of execution petition on 14 -11 -1950 was by a judicial order. The order was passed in the presence of the decree -holder on a day on which the case was posted for taking further steps and what occasioned the dismissal was the decree -holder's failure to pursue the prayers in the execution petition by taking further steps necessary to enable the court to grant those prayers. As the decree -holder did not choose to comply with the order for taking further steps the court had no alternative other than to dismiss the execution petition. The dismissal was thus brought about by the default of the decree -holder which prevented the court from proceeding with execution. Learned Counsel for the Respondent contended that the direction in the order of dismissal to keep the attachment in force would show that a judicial disposal of the execution petition was not intended. I do not think this is a correct test to decide the effect of the order. An order keeping alive the attachment is contemplated only if the execution, petition is judicially dismissed. If the dismissal is only for ministerial purposes the execution petition would continue undisposed of and the attachment would necessarily remain in force. Another argument advanced by the Respondent is that the steps taken by him for executing the attached decree would save execution from being barred. This may be correct so far as the bar under Article 182 of the Limitation Act is concerned. In this case it is not Article 182 but Section 48 of the Code of Civil Procedure that is pleaded as a bar to execution. Lechan v Thondi Ram (I.L.R. 7 All. 382) and Gva Loan Office Company Ltd. v Dhrit Kunda Lal (8 Indian Cases 674) relied on by the Respondent only hold that an application to execute the attached decree is a step in aid of execution of the decree from which the attachment was ordered. Reliance was also placed on Vasudava Pai Venkiteswara Pai v Babbi Kammathi Acthutha Kammathi (6 T.L.J. 77), Krishnaru Krishnaru v Sree Devi Antharjanam (1951 D.L.R.T.C. 365) and Muthu Veeranna Chettiar v Muthu Venkitaraman Chettiar (A.I.R. 1951 Mad. VII) which have laid down that when there are more prayers than one in the execution petition and only one is dealt with by the court and there is nothing to indicate that the other prayer were still under consideration or dealt with by the court, the execution petition so far as such prayers were concerned would be deemed to be pending. These decisions are not applicable to this case. Here the court posted the execution petition to a definite date and directed the decree -holder to take further steps in respect of the prayers he had made. He did not want any of those prayers to be granted but indicated that he would seek his remedies by executing the attached decree. It was in view of such default that the court dismissed the execution petition. If instead of positing the case for further steps the court had dismissed the execution petition on 1 -11 -1950 it might have been open for the decree -holder to say that the other prayers were not considered or dealt with by the court On the facts of this case I hold that execution petition No. 833 was dismissed by a proper judicial order and that the present execution petition cannot be treated as one in revival of or in continuation of Execution Petition 833. The present Execution Petition is therefore barred under Section 48 of the Code of Civil Procedure.