L. Rama Goud (died) Lrs. Gopinath and Others Vs Raju Bai and Others

Krishna Rao, J.@mdashThis appeal is filed by a decree-holder against an order dismissing his execution petition as barred u/s 48 C.P.C. having been filled beyond 12 years from the date of the decree.

2. The main point for consideration in this appeal is whether the unregistered execution petition filed on 2-11-1963 is barred by the 12 years rule u/s 48 C.P.C. The decree under execution was passed on 11-4-1936 and hence the period of 12 years expires by 11-4-1948. But the execution of the decree was stayed for a certain period and it is common round that if the period during which execution is stayed I taken into account, the previous execution petition which was within time, is E.P. 4/51. The said execution petition was dismissed on 3-11-1960 for the default of the decree holder as he failed to pay the sale batta. The main point argued on behalf of the appellant-decree-holder is that the previous E.P. 4/51 was not finally disposed of but that its dismissal on 3-11-1960 was only for statistical purpose, that the unregistered execution petition in question should be regarded as one for continuation of the earlier E.P. 4/51, and that it is not a fresh application for execution as contemplated by Section 48 C.P.C. The Court below having dismissed the previous execution petition on 3-11-1960 for non-payment of batta, made a further order that the attachment will continue. On the Strength of this direction to continue the attachment it is strenuously contended on behalf of the decree-holder that the court did not intend to dispose of the execution petition finally though it was expressly stated as having been dismissed for the default of the decree-holder in paying the sale batta. On the other hand, in is contended on be half of the judgment-debtor that the order dismissing the previous execution petition for the decree-holder''s default operates as a final disposal of the execution petition and that is not open to the decree-holder to regard the subsequent execution petition either as a revival or a continuation of E.P. 4/51, notwithstanding the order of the court below that attachment was continued. Hence the decision in this appeal turns upon the property interpretation to be given to the order passed on the previous E.P. on 3-11-1960.

3. u/s 48 C.P.C. no order for execution of a decree shall be made upon any fresh application presented after the expiration of 12 years from the date of the decree sought to be executed. The scope of the expression "fresh application" has now been fairly well settled by numerous decisions of the High Court and it would be futile to make a detailed reference to the same. The principle which is accepted is that if the provisos execution petition which was within time was not finally disposed of but merely closed or struck off for statistical purposes, the subsequent application for execution, though filed beyond the period of 12 years, is regarded as an application merely to continue or to revise the previous application. The question whether a previous application for execution was finally disposed of or not expends upon the circumstances under which the application is disposed of . In other words, the nomenclature employed by the courts in disposing of the execution petition, e.g., ''closed'', ''struck off'' or ''dismissed''. is not the determining factor but the question has to be decided on a consideration of the circumstances under which the execution petition is disposed of. It is not however necessary for the purpose of this case to consider the various cases in which it was held that the disposal of an execution petition was only for a statistical purpose. So far ass the case on hand is concerned, the question is, what is the effect of the order passed by the court, on the previous execution petition? It is now settled by the authority of the Full Bench decision of the Madras High Court in Vadlamannati Bala Tripura Sundaramma alias Suiadaramma Vs. Abdul Khadar, that if an execution petition is dismissed for the default of the decree-holder in payment of Batta, it amounts to a final disposal of the petition in which case there is no question of such an application being either continued or revived by a subsequent application. This view has been followed by this Court in Pingle Venkata Rama Reddy Vs. Kakarla Buchanna and Another, in which it was held that once an execution petition is dismissed for default of the decree-holder in paying the process fee, it terminates the execution proceedings finally and a subsequent application for the same purpose will constitute a ''fresh application '' within the meaning of Section 48 C.P.C. and there is no question of continuing or reviving the petition which has been finally and properly dismissed. Applying this principle, there can be no doubt that the order of the Court below dismissing the revious execution petition on the ground that the decree-holder did not pay the batta amounts to a final order and not one passed merely for statistical purposes.

4. The next question which remains for consideration is as to what is the effect of the direction of the court while dismissing the execution petition for the above reasons stating that the attachment should continue. Reference may be made at this stage to the provisions of Order 21 Rule 57 as applicable to Andhra Pradesh at the relevant point of time.

57 (1) "Where any property has been attached in execution of a decree and the Court hearing the execution application either dismisses it or adjourns the proceedings to a further date, it shall state whether the attachment continues or ceases: Provided that when the Court dismisses such an application by reason of the decree-holder''s default the order shall state that the attachment do case." It is see from the above Rule that when a court passes a proper order dismissing an execution petition for default of the decree-holder, the consequential order which the court is bound to pass is that the attachment ceases. In other words, when the court passes an order dismissing an execution petition for the default of the decree-holder, the only property and legal order which the court can pass is that the attachment shall cease. There is no discretion left in the court to continue the attachment notwithstanding the dismissal of the execution petition. We have therefore no hesitation in regarding the order of the court below to continue the attachment as one passed without jurisdiction contrary to the plaint and mandatory provisions of the Rule. It is therefore not permissible for the decree-holder to place reliance upon such an order which has no legal effect. in support of his contention that as the court wanted to continue to the attachment. it did not intend to dismiss the execution petition. We do not agree that this is the correct approach for interpretation of the order passed by the court below. The proper interpretation of the order in our view, is that when the court passed a proper order dismissing the execution petition for default of the decree-holder, it results in certain legal consequences. namely, the termination of the final disposal of the execution of the final disposal of the execution petition, In such a case, it is not open to the court o pass a valid order continuing the attachment . It follows therefore that the direction to continue the attachment should be ignored ass of no legal effect. This view receives support from the following authorities. In (Badam) Seshiayya Vs. (Grandhi) Sattiraju, it was held, following the decision of the Calcutta High Court in Namuna Bibi v. Rosha Miah. ILR (1911) Cal 482 that an attachment does not subsist when a decree-holder''s execution petition is dismissed for his default in spite of the fact that the court ordered that the attachment should remain in force.

5. In Kollu Kangayya Naidu Vs. Jayamangala Reddeyya, it was laid down that having regard to the mandatory nature of the language employed in Order 21 Rule 57, the executing court had no power to continue the attachment when once the execution petition is dismissed on the default of the decree-holder and by not stating that attachment would cease the executing court cannot continue the attachment when the petition was dismissed for default of the decree-holder. The result contemplated in the proviso would follow as a necessary corollary if the application is dismissed for the default of the decree-holder irrespective of whether the attachment is raised specifically by that court or not.

6. On behalf of the appellant-decree, strong reliance was placed on a ruling of the Hyderabad High Court in Firm of Phoolchand Chandmal v. Laxman. ILR (1955) AP 471 in which it was laid down that an execution petition which was merely dismissed for default does not operate finally and that a sub-sequence execution petition filed beyond the period of 12 years may be regarded as one to continue or revive the previous execution petition. On a serenity of the facts in the said case, it is not clear ass to why the court dismissed the execution petition for default. In any view of the matter, we are bound by the view taken by this court in the cases cited above and the provisions of Order 21 Rule 57 CP. C. (Andhra Pradesh).

7. Reference was next made to decision of the Supreme Court in Kumar Pashupatinath Malia and Another Vs. Deba Prosanna Mukherjee, in which relief was sought under the Bengal Money Lenders Act for reopening a mortgage decree. The decree could be reopened under the Act Bengal Money Lenders Act for reopening amortages decree. The decree could be reopened under the Act if proceedings in execution were pending on a specified date. The majority view was that the execution petition was not pending as it was finally disposed of and that the further order keeping the attachment pending was passed not the bass that the execution was pending but was made in view of the specific provision in Order 21 Rule 57 (Calcutta). The minority view of the that the continuance of the attachment itself amounted to a proceedings in in execution within the meaning of the Act. This decision is not at all relevant to the question before us. Even otherwise, in the view we have taken with reference to the language of Order 21 Rule 57 (AP) the order of the court continuing the attachment is of no legal effect.

8. Another argument attempted by the learned counsel for the appellant is that the order dismissing the the execution petition for default was passed behind his back and without notice to him and that the order was therefore really one passed not on account of any default on his part. In order to substantiate this argument, it is stated by the learned counsel that after the case was remanded from the High Court, the court be low did not issue any notice to the parties and that neither the decree-holder nor his advocate were aware of the order of the dismissal passed by the court below. Ass this stetting was disputed by the learned counsel for the judgment-debtor we called fro the entire file relating to the previous execution petition and on a perusal of the various endorsements, we are satisfied that the decree-holder had notice of all the dates of hearing both before and after the date of receipt of the papers from the High Court, by the lower court. In view of these endorsements, the learned counsel for the appellant has not pressed this contention. It is therefore not necessary to enter tot he authorities cited by him in support of his contention.

9. For all the above reasons, we hold that the unregistered execution petition, out of which this appeal arises, cannot be regarded as one to continue or revive the previous execution petition. It follows therefore that the present execution is a fresh application for execution which is barred by time u/s 48 C.P.C. having been filed beyond 12 years from the date of the decree even taking into account the period during which execution was stayed for some time.

10. The appeal accordingly fails and in dismissed: but in the circumstances, without costs, Order in C.M.P. Nos. 17299/69 and 17300 of 1969 are not material for the decision.

11. Appeal dismissed.