TURAGA HANUMANTHA RAO Vs. OFFICIAL RECEIVER

JUDGEMENT

(1.) The question in this Civil Miscellaneous Appeal preferred by the decree-holder is whether the execution petition can be treated as a continuationof a priorexecutionpetition,E.P.No.26ofi935,whichwasclosedon 5 November, 1936. The present petition was filed on,14 December, 1942, that is, more than six years after the order on the previous execution petition. The learned District Judge held against the appellant and gave two reasons for his conclusion. One is that the prior execution petition must really be deemed to have been dismissed though the order stated that it was " closed," because no schedule of immovable property was furnished, as it ought to have been under Order 21, Rule 13, and the real intention of the decree-holder was not to proceed with the attachment of the immovable properties which he wanted but only to secure rateable distribution of the assets that had been realised in execution of a decree obtained against the same judgment-debtors in another suit by a different creditor. The second reason given was that the present petition cannot be regarded as a continuation of the previous ?u C) ,- r, 26 of I935inasmuch as the reliefs now wanted are not the same as the reliefs then sought.

(2.) What is the meaning to be attached to the order " closed " made on the prior execution petition is the first question that arises for consideration. We cannot enter into the psychology of the decree-holder and find out whether he was serious when he wanted attachment of immovables or asked for that prayer only for the purpose of securing a rateable distribution of the assets that had been realised. Nor is there any support for the argument addressed by Mr. Ramanarasu that as the appellant was satisfied with the rateables that he got, he abandoned the other prayer and invited the Court to dismiss the petition. Had there been any such invitation, one yould have expected the Court to dismiss the petition instead, ot using the word " closed," which is generally associated in our minds with an intention to remove the execution petition from the file for statistical purposes but not to terminate it finally. In this connection, it should be remembered that even orders of dismissal have been construed to mean orders made for ftatistical purposes only Of course, everything depends upon the facts of each case. There is no hard and fast rule of interpretation. " Closed " may mean dismissed and " dismissed " may mean only closed. We have to look at the fracts for finding out what was exactly meant.

(3.) In this connection it is pointed out that the omission to furnish the schedule, which was probably due to the fact that the schedule was available in the execution petition (E.P. No. 172 of 1932) of the other creditor which was also being adjourned from time to time pending the holding of sales and their confirmation and which resulted in the realisation of assets, a portion of which came to the benefit of thisdecree-holder did not authorise the Court to dismiss the petition because of the change in Clause (1) of Order 21, Rule 17 brought about in Madras, which contemplates such a dismissal only after time is granted to the decree-holder to remedy the defects pointed out by the Court and there is failure on his part to comply with the requisition. We cannot assume that the Court was not aware of this change and closed the petition with the idea that it should stand dismissed. On the other hand it is but right to presume that the change in Clause (1) was within the knowledge of the Court and that it made an order consistent with what was proper. It is true, as Mr. Ramanarasu pointed out, that even with such a provision nothing prevented the Court from dismissing the application if the decree-holder asked the Court to do so, or if the Court felt that it should take such a step though itwas not in strict accordance with law. But with nothing before us to prove that such was the intention when the Court made the previous order, we shall have to interpret it consistently with the powers vested in the Court. The decisign in Sankaran Nair V/s. Ambu referred to by the learned Judge was under trfe rule as it stood originally before the Madras change. I am not prepared to hold therefore with the lower Court that the prior execution petition was either rejected or dismissed when the order was made that it should stand closed.