Phoolchand vs Ramchandra

Khan, J.—This second appeal arises out of execution proceedings and the question for determination is whether an application given by the decree-holder in a pending execution for the arrest of the judgment-debtor after 12 years is a fresh application within the meaning of Section 48, CPC or not?

The facts out of which this appeal arises are that the decree was passed on 3-8-1938. The decree-holder filed his first execution on 11-3-1941 but it was dismissed on 14-7-1941. Thereafter the present execution, No. 243 of 1949 was filed and in the course of the execution proceedings the decreeholder obtained some money by the sale of a house on 27-3-1951.

In the pending execution the decree-holder applied on 30-3-1951 to the Court for the arrest of the judgment-debtor. The judgment-debtor raised an objection that the application dated 30-3-1951 for his arrest was a fresh application within the meaning of Section 43, CPC and that it was barred by the statute.

The first executing Court upheld the contention of the judgment-debtor but on appeal although, the appellate Court held that the application in question was a fresh application within the meaning, of Section 48, CPC yet, on the ground of fraud of the judgment-debtor (Section 48(2)(a), Code of Civil Procedure) it allowed the execution to proceed. Now this is judgment-debtor''s second appeal.

The relevant portion of Section 48, CPC which bars the execution after 12 years'' runs as follows:

Where an application to execute a decree not being a decree granting an injunction has been made, no order for the execution of the same decree shall be made upon any fresh application present-rafter the expiration of twelve years.

The whole case turns upon the interpretation of the phrase "fresh application" occurring in the above passage. It seems that in the Code 1882, the expression used in the corresponding Section 230 was ''subsequent application.'' This gave rise to some judicial conflict and therefore in the later Code, namely the present Code of Civil Procedure, the phrase ''Fresh application'' was substituted for subsequent. application''.

The learned Counsel for the Appellant contends that any application given after 12 years is hit by Section 48, CPC and because the application dated 30-3-1951 for arrest was presented after 12 years from the date of the decree, it is a fresh application within the meaning of Section 48, CPC and hence inexecutable.

In support of his contention he has referred, me to Sri Raja D.K. Venkata Lingama Nayanim Bahadur Varu (since deceased) and Another Vs. Rajah Inuganti Rajagopala Venkata Narasimha Rayanim Bahadur Varu and Others, ''Lakshminarasinga Rao v. Balasubrahraanyam'' AIR 1949 Mad 251(B) and ''Mohammad Jamil Ahmad v. Suraj Narain Pd.'' AIR 1951 Pat. 635(c)'' in which this view is expressed that an application by which it is sought to proceed against properties other than those mentioned in the first execution petition is a fresh application within the meaning of Section 48 and no such application is entertainable after 12 years from the date of the decree sought to be executed.

With great respect and diffidence I beg to take a different view. After giving the question, my most serious consideration and perusing the cases cited at the Bar, I find that the learned, judges have thought that a fresh application means an application with a new or fresh relief, but Section 48, CPC does not speak of any fresh or new relief.

What the section says is that no order for the execution of a decree shall be made upon any fresh application, which to me appears to mean that no fresh application for execution shall be entertained after 12 years and not that in a pending execution, no fresh or new relief can be sought. An execution application made within 12 years may carry the execution proceedings beyond twelve years, during which the decree-holder must have every liberty to exhaust all lawful means to secure the satisfaction of the decree.

The term ''any fresh application'' is of very, wide import, and can mean any new application filed after 12 years, no matter whether it refers to old relief or a new relief. The logical conclusion, of this view would be that in pending cases, no fresh application of any nature can be made and all the pending proceedings shall have to be consigned to scrap-heap.

It seems that the learned judges appreciated this, unhappy position and to over-come this, a distinction was made between an ancillary application made with the object of moving the Court to proceed in the matter already on the file and an application in the pending execution which sought new relief. With very great respect I beg to submit that the notion of new relief is an artificial distinction not warranted by the language of the section.

And I may also submit that an application in a pending execution is not a fresh application at all, because it is not given a fresh number, I have been always of the opinion that the law of limitation should receive a liberal interpretation so as to enable the decree-holder to obtain the fruits of his decree and the language should neither be strained nor stretched.

In conclusion I hold that the phrase ''fresh application'' occurring in Section 48, CPC means a ''fresh application for execution'' and not an application in a pending execution seeking fresh relief.

For reasons stated above, the appeal is disallowed with costs.