Penumetcha Annapurnamma vs Polisetti Jagannadham

Krishnaswami Nayudu, J.—This revision petition is against the order of the District Munsif of Narasapur dismissing the petitioner''s

application for execution as barred under Article 182, Clause 5 of the Indian Limitation Act.

The petitioner obtained a decree in a Small Cause suit on 9th March, 1936. He filed an execution petition, E.P. No. 903 of 1936, on 21st

September,"" 1936, for issue of a warrant for arrest of the judgment-debtor. On 23rd September, 1936, an order for arrest was passed, returnable

on 20th October 1916. On 21st October, 1936, the following order was passed by the learned District Munsiff of Narasapur:

Judgment-debtor not found for arrest. Struck off.

The present E.P. was filed on 31st March, 1947, more than 11 years after the order referred to was passed on the previous E.P. Prima facie the

petition is barred under Article 182, Clause 5 of the Indian Limitation Act.

The learned Counsel for the petitioner argues that the order made on 23rd September, 1936, in the terms referred to and the petition having

been struck off, it is not a final order, that the E.P. No. 903 of 1936 must be deemed to have been pending and the present execution petition is

only a reminder to continue the proceedings in the previous petition and that therefore Section 182, Clause 5 of the Indian Limitation Act does not

apply. In support of this contention he relied on Jitmal v. Jwala Prasad ILR (1898) All. 155. In that case the decree was dated 2nd December,

1885, and after various in fructuous applications for execution an application was filed on 4th August, 1897, for warrant of arrest of the judgment-

debtor. The warrant for arrest was ordered, but, the peon that was sent to arrest the judgment-debtor reported that he concealed himself and in

consequence the court strict off the execution application. On 29th November, 1897, the decree-holder again applied for the arrest of the

judgment-debtor, but that application also was struck off On 20th February, 1898, without the arrest having been made. Against the order striking

off the latter application the decree-holder appealed to the High Court where an objection was taken that the decree could no longer be executed

having regard to Section 230, CPC corresponding to Section 48 of the present Code, and, it was held that the warrant of arrest issued on the

decreer holder''s application of 4th August, 1897, still subsisted and ought to be executed.

The learned Counsel contends that the order made in the previous application, E.P. No. 903 of 1936, is in the same terms as the order that was

under consideration in the decision cited by him. There also the judgment-debtor was not arrested and the execution application was struck off.

The contention on behalf of the petitioner is that in effect the order of Court in E.P. No. 903 of 1936, dated 23rd September, 1936, and the

process issued thereon has not become exhausted and that the application must therefore be deemed to be pending. Unless it could be shown that

the disposal of the previous execution petition was for administrative or statistical purposes it cannot be said to be pending so as to enable the

petitioner to take advantage of it and continue the proceedings by filing applications subsequently. The question, therefore, for decision is whether

the order in the previous execution petition was made for administrative or statistical purposes or whether the execution petition has been judicially

and properly disposed of so as to make it a final order. What happened was the prayer asked for by the petitioner was granted, i.e., for arrest,

and, a process in pursuance of the order had been issued, which process the petitioner seems to have taken advantage of and had the same

executed, but, the judgment-debtor was not found and so the arrest could not be effected. The fact that the words ""struck, off"" are mentioned in

the order would not make any difference. Whether it is mentioned as ""struck off"" or ""dismissed"" the mere words would not decide the nature of the

order and as to whether it is a final order or not. One has to consider the substance of the order and not the mere form. In this case the application

in the previous execution petition was made under Order 21, Rule 11, which provides for the filing of an execution petition and the arrest was

asked for u/s 55, CPC which is the general provision for arrest. A process was issued for execution of the decree by arrest under Clause (1) of

Rule 24 of Order 21. It is provided that under Clause (3) of Rule 24 that in every such process a day shall be specified on or before which it shall

be executed and a day shall be specified on or before which it shall be returned to court. In this the specified date was 20th October, 1936. On

that day which is the date within which the process had to be executed and returned the court found that there was nothing more to be done as the

process that was issued in pursuance of the prayer in the execution petition has exhausted itself and finally disposed of the application by striking it

out. It cannot be said therefore that it is not a judicial or proper disposal since nothing more was to be done. The execution has become complete.

If the petitioner had then asked for. extension of time for executing the process for arrest an order might have been made extending the time and

the application would not then be said to have been disposed of. I do not see any reason for holding the order under consideration as not being a

final order as is mentioned under Article 182, Clause 5 of the Indian Limitation Act.

In the decision Jitmal v. Jwala Prasad ILR (1989) All. 155, cited by the learned Counsel there were other circumstances which apparently

weighed with the learned Judge. There were a number of execution applications taken out by the decree-holder and it can be seen from the

judgment that the ministerial officers of the court had not been co-operating with the decree-holder to effect the arrest ordered by the court. The

following observations of the learned Judges show to what extent they were influenced by such circumstances. They observed in spite of the best

efforts of the decree-holder he could not secure the arrest of the judgment-debtor purely on account of the conduct on the part of the ministerial

officers and further stated,

When warrants of arrest were issued, the ministerial officers of the court sent to execute the warrants seem to have been seized with sudden

blindness and incapacity to discover the whereabouts of this judgment-debtor.

And with reference to the application of 4th August, 1897 they observe:

As usual the peon reported that the judgment-debtor had concealed himself; and thereupon the court lost no time in striking off the case. What

impresses us in these proceedings is the singular want of sympathy exhibited by the court towards the decree-holders.

In appeal the learned Judges felt the difficulty arising out of the wording of Section 230, CPC corresponding to Section 48 of the present Code.

They stated that in view of Section 230, CPC it would be impossible for them to grant the order, looking to the fact that upwards of twelve years

have elapsed since the date of the decree sought to be enforced and that previous application for execution have been granted. They thereupon

called for a finding from the lower court whether the decree-holder could come under the exemption of the section and for a finding on the issue

whether execution had been prevented by fraud or force of the judgment-debtor. The finding submitted by the lower court was against the decree-

holder but in spite of it the learned Judges held that the order issued on 4th August, 1897 had not yet been carried out and the application before

them was merely ancillary to the previous application, and therefore the decree-holder was entitled to proceed with the execution.

With great respect to the learned Judges I am unable to agree with the view taken as the acceptance of the view would, if carried to its logical

conclusion, enable a decree-holder by merely filing an application for execution asking for arrest or attachment and getting the warrant returned as

unexecuted, keep the decree alive for any length of time and thus nullify the effect of Section 48,. Civil Procedure Code. Though in the case before

me the period of twelve years had not elapsed the acceptance of the correctness of the decision would amount to the result stated above. I have

no doubt that the order made in E.P. No. 903 of 1936, dated 23rd September, 1936 is an order judicially and properly made having been made

under Order 21, Rule 24 and therefore a final order, and the present application being filed beyond three years of the date of (the order on) the

previous application it is clearly barred by limitation. In the result, the revision petition is dismissed, but, in the circumstances there will be no order

as to costs.