Kondapuram Budda Reddi vs M. Ranga Reddi

Chandra Reddy, C.J.—This is an appeal against the order of the District Judge, Anantapur, over-ruling the objection raised by E. A. No. 15 of 1959 that the decree-holder could not be permitted to proceed with the execution petition by filing an amended proclamation of sale.

The facts material for the purpose of this enquiry may be shortly stated. The respondent obtained a joint and several decree in O. S. No. 6 of 1945 on the file of the District Court, Anantapur against the petitioner-appellant and his partners in business for payment of a sum of Rs. 12, 108/- and odd. Some time later, he levied execution for realisation of this decree. The appellant''s sons filed a suit against the judgment-debtor for partition and separate possession of the family properties and for a declaration that the debt due under the decree in question was not binding on them. To this action, the respondent was impleaded as one of the defendants. Pending the suit, an application for injunction restraining the respondent from executing the decree in O. S. No. 6 of 1945 was made but that was dismissed against which C. M. A. No. 631 of 1952 was preferred in the Madras High Court. While the appeal was pending, stay of execution of the decree was obtained on certain conditions. Ultimately, the C. M. A. was dismissed. Eventually, though the suit for partition was decreed, the sons were made liable for the discharge of this debt on the finding that it was binding on the shares of the sons also. The plaintiffs in that action got execution of the decree stayed at various stages either by the trial Court or by the High Court.

Meanwhile, number of execution petitions were filed but it serves no purpose here to refer to all of them. Suffice it to say that on 8-1-1949 it was agreed between the parties that the one-third share of the judgment-debtor alone should be proceeded against in execution of the decree. On the basis of this agreement, orders in E. A. No. 24 of 1952 were passed directing the decree-holder to proceed only against the one-third share of the judgment-debtor. On 23-8-1952 the Court also ordered that an amended proclamation should issue in that regard and the sale was adjourned. It is unnecessary to advert to the other proceedings initiated either by the present appellant or his sons to stop the execution of the decree or to the revisions and appeals carried to the High Court against the orders passed by the trial Court. It is enough to say for the purpose of this appeal that notwithstanding the order of the Court that the proclamation should issue confining the sale to one-third share of the judgment-debtor, the proclamation actually issued covered the whole property and the whole property was sold on 18-12-1958, When this was brought to the notice of the Court, the sale was set aside by the District Judge, because, the sale proclamation was not in accordance with the order of the Court based on the agreement of the parties and also contrary to the request of the decree-holder. He further directed that the decree-holder should sell the property after fresh and correct proclamation. It is to carry out these directions that the decree-holder-respondent applied for amendment of E. P. schedule showing one-third share as belonging to the judgment-debtor. This application was ordered by the District Judge.

Sometime later, the appellant filed the application which has given rise to this appeal to vacate this order, on the ground that as the sale held on 18-12-1958 was cancelled by the Court no order for filing an amended proclamation could be passed. This plea did not find acceptance with the trial Court and the execution application filed by the appellant was dismissed. The aggrieved judgment-debtor has preferred this appeal against that order.

In support of this appeal, it is argued by Sri Narasinga Rao, learned counsel for the appellant, that the trial Court should not have granted the prayer of the respondent after a lapse of twelve years from the date of the decree. According to the learned counsel, execution of the decree having been barred u/s 48 C. P. C. it was not permissible for the decree-holder to take any steps afresh to execute the decree. The learned counsel maintains that the petition for amendment of the proclamation is in effect and substance a new execution application which is not permissible u/s 48 C. P. C. The learned counsel also urges that when once the sale was set aside the execution petition in which the properties were brought to sale exhausted itself and that necessitated another execution petition and that was barred u/s 48 C. P. C. by reason of the expiry of twelve years from the date of the decree.

The crucial question for determination, therefore, is whether the petition presented by the decree-holder on 29-11-58 should be regarded as a new execution petition and whether S. 48 C. P. C. operates as a bar to the executability of the decree in this case.

In support of this position reliance is placed by the learned counsel for the appellant on Bhanpal Singh v. Siya Ram, AIR 1942 All 442. There, a certain property was attached as belonging to the judgment-debtor. This was claimed by third parties as belonging to them and not to the judgment-debtor under Order 21, Rule 58 C. P. C. The claim was upheld and the execution petition was dismissed, as by that time the period of twelve years from the date of the decree had expired. The decree-holder went up in appeal to the Allahabad High Court complaining that his execution petition should not have been dismissed but he should have been allowed to amend the application so as to execute the decree by some other means. Ailsop J. dismissed the appeal expressing the opinion that when once it was found that the steps mentioned in the application could not be taken the application must be dismissed find that there was no such thing as a general application for execution of a decree and that the various steps in aid of execution were subsidiary thereto.

The learned Judge further observed that if it was found by the Court that the steps mentioned in the particular application could not be taken, the execution petition should be dismissed and fresh execution petition had to filed. We do not think that this judgment furnishes any analogy here. This is not a case in which the steps mentioned in the execution petition could not be taken in the matter. The decree-holder could pursue the execution application and no change was contemplated in the mode in which the assistance of the Court was required, namely safe of the property. All that the decree-holder wanted was that the sale should be confined to a one-third share of the property mentioned in the E. P. on file.

Nor does Raghunandun Pershad v. Bhugoo Lall ILR 17 Cal 268 carry the appellant any further. The question that presented itself before a Bench of the Calcutta High Court was whether a fresh application for execution of the decree by selling one-third interest of the judgment-debtor could be regarded as a continuation of the previous application or a new application. In that case, in execution of a decree, the property mortgaged was attached in 1883. Two persons laid claims to the attached property and the Court allowed the claim in respect of a two-thirds share of the same. The decree-holder thereupon filed a regular suit for a declaration that the property in its entirety was subject to be sold in execution of the decree but he did not succeed in this behalf with the result that he applied for execution of the one-third share in the property. The judgment-debtor opposed the petition on the plea that it was parred by limitation. This objection was over-ruled by the trial Court in the opinion that it was not altogether a fresh application for execution but was one in continuation of the previous application. On appeal by the judgment-debtor, the Calcutta High Court reversed that decision on the ground that the execution petition was a fresh one and could not be described as a continuation of the previous one.

It may be mentioned that nowhere in the judgment have the learned Judges laid down that it was not competent for the decree-holder to proceed against the one-third share of the judgment-debtor in that case. On the other hand, the observations at page 271 of the report clearly established that it was open to the decree-holder to proceed against the one-third share of the judgment-debtor. The learned Judges observed :

It is clear that the decree-holders could, notwithstanding the order in the claim case, have prosecuted their application for execution against the one-third snare which was not released then quite as well as they can do now. Their present application is for the sale of that third share of the property; there was no bar then to their enforcing the execution of the decree, and there has teen no subsequent removal of that bar.

This ruling, therefore, does not render any assistance to the appellant. On the other hand, the principle deducible from that decision is that a decree-holder is at liberty to proceed against part of the property proclaimed and, in order to sell a portion of the property mentioned in the execution petition, a new application need not be presented.

Sri Raja D.K. Venkata Lingama Nayanim Bahadur Varu (since deceased) and Another Vs. Rajah Inuganti Rajagopala Venkata Narasimha Rayanim Bahadur Varu and Others, called in aid by Sri Narasinga Rao, learned counsel for the appellant, is also not in point. What happened there was this. A charge decree was passed in favour of one of the maintenance holders of the family of the Rajah of Kalahasti. He put in execution that decree on 15-1-1930 by proceeding against twenty one villages which were the subject to the charge. These properties were sold and large sum of money was realised. For the outstanding balance, the decree-holder wanted to sell some more villages not included in the execution petition dated 15-1-1930 but over which there was a charge under the decree and for this purpose, filed E. A. on 1-11-1939 for continuing the E. P./1930. This was resisted by the judgment-debtor on the plea that the decree-holder could not be allowed to continue the execution petition of 1930 as it came to a termination by the sale of the property. The trial Court accepted the decree-holder''s petition negativing the objection raised by the judgment-debtor.

On appeal, a Bench of the Madras High Court consisting of Patanjali Sastri and Bell JJ. disagreed with the trial Court on this aspect of the case in the view that there could be no question of continuing the execution petition of 1930, as it was brought to a termination by the sale of the properties for which the execution petition was filed. Patanjali Sastri, J. who spoke for the Court, remarked that an application for execution under Order 21, Rule 11C. P. C. did not contemplate an application for execution being made in general terms and kept pending till the decree amount was fully realised and that the application for execution was an application to take one or more of the steps specified therein in execution of the decree. The learned Judge further observed :

The Code contemplates successive applications being made to the Court to execute the decree by taking one or more of such steps and the Court is bound to assist the decree-holder in the mode required by him. It seems to us that under such a scheme, every application requiring the Court to proceed against a particular property is a substantive application for execution.

We do not think that this decision would help the appellant in any way. The decree-holder in that case desired the continuation of the execution petition which could not be treated as a pending one by reason of the fact that the purpose for which it was filed was served and the petition had come to a close. Such being the case, there was no question of any items of property not set out in the execution petition being added to the execution petition. The execution application filed in 1939 for continuation of the execution petition of 1930 was in effect a fresh petition and it could not be entertained as twelve years had elapsed from the passing of the decree.

That is not the situation here. No new properties are sought to be added to the pending E. P. Could it be said that the earlier execution petition was dead either by reason of its object having been served or for some other reason in the instant case? The properties that are now sought to be proceeded against are the same as those that were mentioned in the execution petition. All that the decree-holder wants is that the sale should be limited to the one-third share of the judgment-debtor. The decree-holder does not seek to bring any fresh properties for sale. It is also worthy of note that the decree-holder filed this application in accordance with the directions of the executing Court. We are not persuaded that any such application was even necessary. It cannot also be overlooked that even on the earlier occasion, the decree-holder was not in any way responsible for the issue of the proclamation of sale which resulted in the sate of the whole property contrary to the directions of the Court. Obviously owing to oversight the proclamation of sale did not specify that the sale was in regard to the one-third share. We cannot subscribe to the theory propounded by Sri Narasinga Rao that since the decree-holder wants the undivided one-third share of the judgment-debtor in the property, it is not the same property as that comprised in the execution petition. Whether the auction purchaser of the one-third share could obtain possession of any specific item of property or whether he should institute a suit for working out his rights is not germane to the determination of the question whether what is sought to be brought to sale is the same property as that comprehended by the execution petition.

Manjaya v. Shanmuga ILR 38 Mad 684 at p. 692 : (AIR 1914 Mad 440 (2) at p. 444) is not relevant and does not throw any light on the point raised by Sri Narasinga Rao. The principle underlying that case is, where a co-parcener alienates his share in certain specific family property, the alienee does not acquire any interest in that property but only an equity to enforce his rights in a suit for partition and to have the property alienated set apart for the alienor''s share if possible. No exception could be taken to that doctrine.

The decisions relied on by Sri Narasinga Rao do not afford any parallel here. It cannot be posited in this case that the execution petition filed in 1952 was not alive. The execution petition is still pending and the request now made is in accordance with the prayers contained in the execution petition and the request of the respondent does not alter the mode in which the assistance of the Court was sought by the decree-holder in the E. P. For these reasons, we cannot give effect to the contentions urged by the learned Counsel for the appellant.

Sri Bhujanga Rao, learned counsel for the respondent, raised an additional ground for dismissal of the appeal, namely, that even if for any reason the present execution application should be regarded as a fresh application, still it cannot be dismissed as being out of time for the reason that execution of the decree was stayed by the High Court on a number of occasions and if that period which would be about six or seven years were to be excluded the execution petition will be in time and Section 48 C. P. C. will not stand in the way of the trial Court taking cognizance of the petition. This is borne out by the counter affidavit filed by the decree-holder in the Civil Miscellaneous Petition in this appeal and though there does not seem to be any answer to this point, we do not propose to express any opinion on this as this was not investigated into by the trial Court. That may be due to the fact that the judgment-debtor never objected to the maintainability of the application on the ground of limitation. All that was objected to by him was that this prayer should not be granted in the execution petition but the decree-holder should be directed to file a fresh execution-petition.

In the circumstances, the appeal is dismissed with costs.