KAIBALA PADHAN Vs. SANYASI SASAMALA

JUDGEMENT

(1.) THIS is a judgment-debtor's appeal, arising out of an execution proceeding, against the judgment of the learned District Judge, Berhampur, allowing the decree-holder to proceed against the immovable properties belonging to the appellant as mentioned in E. P. No. 126 of 1952. Respondent 1 obtained the decree in question against the appellant and his son, respondent 2, on 16-4-37 in o. S. No. 330 of 1936, on the file of the Munsif, Berharapur. After a number of infructuous applications to execute the decree, respondent 1 filed E. P. No. 128 of 1949, on 14-4-49 in which there were more prayers than one, viz. , the arrest of the appellant; attachment of the immovable properties, and the sale of moveable and immovables belonging to the appellant. On 8-7-50, the learned District Munsif of Berhampur passed the following order: "the judgment-debtor is committed to civil prison. E. P. closed. " the appellant, however, preferred an appeal against the said order of committal to civil prison, and the order was set aside on 30-9-50 f learned District Judge of berhampur. Previous to this, there were certain claim cases in respect of the judgment-debtor's properties which were the subject-matter of 5 second appeals (Second Appeals Nos. 94 to 98 of 1945) pending in this Court and ultimately the claim cases succeeded by a judgment of this Court dated 26-4-49. Out of the aforesaid second appeals, Second Appeal No. 97 of 45 related to some of the immovable properties now in dispute. The decree-holder-respondent 1 did not take any steps until 3-7-52 while he filed another application which was numbered as E. P. No. 126 of 1952. The prayers in E. P. No. 126 of 1952 were to revive or to bring on record E. P. No. 128 of 1949 and to put to sale the properties attached before judgment and also the properties attached under Order 21, Rule 54, Civil P. C. , along with certain other new properties, after notice to the judgment-debtor, in case the decree amount is not satisfied, to attach the moveable of the judgment-debtor and to sell the same; and to rateably distribute the assets of the judgment-debtor attached in e. P. No. 26 of 1951 of the Subordinate Judge's Court, Berhampur. The judgmentdebtor-appellant's objections were that E. P. No. 128 of 1949 cannot be revived, nor can this execution petition be treated as a continuation of the previous petition, and further averred that the properties, other than those mentioned in the previous execution petition, cannot be sold in E. P. No. 126 of 1952 as this petition is a fresh petition as far as the new properties that are appended to the schedule are concerned, and is hit by Section 48, Civil P. C.

(2.) THE learned Munsif treated the present execution petition as a continuation of E. P. No. 128 of 1949, and rejected the contentions raided by the judgment-debtor. On appeal, the learned District Judge upheld the order of the Munsif and allowed the decree-holder-respondent 1 to proceed with E. P. No. 126 of 52. It is against this order that the present appeal has been filed.

(3.) MR. H. G. Panda, learned counsel on behalf of the appellant, contended that E. P. No. 126/52 cannot be held to be in continuation of the previous E. P. No. 128 of 1949, which was closed on 8-7-50. His next contention was that even if the present execution petition is held to be in continuation of the previous execution petition, it will be deemed to be a fresh petition as far as the new items of properties, that is, items 4 to 6 of the schedule are concerned, and the same is hit by Section 48, Civil P. C. Mr. Panda's first contention is bound to fail, because E. P. No. 128 of 1949, cannot be held to have been disposed of effectively and validly in one of the ways known to the law. There were more than one prayer in the previous execution case; and by ordering the detention of the judgment-debtor-appellant in civil prison, it cannot be said that the petition has been really, effectively and validly disposed of. In this connection reference may be made to a decision of the Madras High Court reported in Mathuveeranna Chettiar v. Muthuvenkatarama Chettiar, AIR 1951 Mad 711 (A), where the learned Judges while discussing the meaning and import of the word 'closed' said as follows: