KOYPATHODI MOIDIN KUTTY Vs. A.K.DORAISWAMI AIYAR

JUDGEMENT

(1.) THIS appeal arises out of proceedings in execution of the decree in O. S. NO. 6 Of 1936 on the file of the Court of the Subordinate Judge of Kozhikode. That was a suit instituted by one Appunni Nayar against the appellant for recovery of amounts due under three promissory notes and it was decreed on 30th March 1936. There were various proceedings in execution of that decree but we are concerned only with the last of them, B. P. No. 71 of 1943. In this execution application the Immovable properties of the judg -ment debtor were attached but before they could be brought to sale the decree -holder died on 20th May 1945. Thereafter on 6th June 1945 the following order was passed in E. P. No. 11 of 1943: "The decree -holder is reported dead. No sale taken place. Petition closed. No L.R. impleaded". Meantime a suit had been instituted for partition of the properties belonging to the tarwad of the decree -holder, O. S. No. 32 of 1941, on the file of the Sub Court, Kozhikode. In that suit a receiver was appointed on 27th March 1945 for the tarwad properties and it is common ground that the decree in O. S. No. 6 of 1936 is one of the properties covered by the receivership order. On 16th June 1948 the receiver filed E. P. No. 192 of 1948 out of which the present appeal has arisen and in that he prayed for attachment and sale of the immovable properties of the judgment -debtor. It may be mentioned that the properties sought to be sold under this execution application are the very properties which were attached in E. P. No. 71 of 1943.

(2.) THE judgment -debtor resisted the application on the ground that on the date on which it was filed more than 12 years had elapsed from the date of the decree and that it ,was consequently barred under Section 48, C. P. C. The, Subordinate Judge overruled this objection. He held that no final order had been passed in E. P. No. 71 of 1943 and that, therefore, it must be deemed to be pending and that the present application was in substance one to continue those proceedings and that, therefore, it was not barred under Section 48, C. P. C. In this view he directed the execution to proceed. It is against this order that the present appeal has been brought by the judgment -debtor.

(3.) THE second and the more substantial con -tention of the appellant is that treated as an ap -plication for continuation of the prior execution the present application is not maintainable as under Section 146, C. P. C. a receiver is not a person competent to maintain such an application, Section 146, C. P. Code runs as follows: "Save as otherwise provided by this Code or by any law for the time being in force, where any proceeding may be taken or the application made by or against any person, then the proceeding may be taken or the application may be made by or against any person claiming under him." The argument on behalf of the appellant is that the words "any person claiming under him" are inappropriate to an application by the receiver who does not claim under any of the parties and that those words can taken in (sic) only heirs and other legal representatives. If this contention is correct it will follow that E. P. No. 192 of 1948 will be Incompetent as one to continue E. P. No. 71 of 1943 and as a fresh application it will be barred under Section 48, C. P. C. As the question does not appear in this form to be covered by authority this has to be determined on a consideration ot the principles applicable to the case.