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Judgment
Qamar Hasan, J.—This is an appeal in execution on behalf of the judgment- debtor, since deceased and now represented by Narpath Singh, and it is directed against the order dated 21-3-1951 of Siadat Ali Khan J. on the Original Side of the erstwhile High Court of Judicature at Hyderabad holding the application preferred by the decree-holder Raja Pratapgir, the respondent herein, on 26-9-1950 was not barred by limitation since it was not a fresh application for executionbut an application to ''revive the proceeding, which was consigned to the record room on 29th Meher 1348F.
The facts lie in a short compass and may be briefly stated. Raja Pratabgir obtained a decree on 23rd Azur 1341 P. for Rs. 1,10,726/- on the basis of an award. The decree to the extent of Rs. 80,000/-was transferred to the Sadar Adalut, Medak for execution and for the balance was put in execution in the Court, which passed the decree. The proceeding in the latter Court came up before Khaleluzzaman J. on 29th Meher 1348 F On that date the following order was passed.
I have appeared as a vakeel in the present case and therefore cannot hear it; but since the applicant desires to have the proceeding recorded it does not appear necessary to order it to be placed before another Bench. The proceeding, as prayed, may be consigned to the record-room.
The proceedings in the Sajlar Adalut, Medak were pitted against the execution proceeding of Nawab Lutfuddowla, who had a final decree for sale of the house known as ''Lake View''. The house was ultimately sold and the proceeds of the sale were appropriated towards the satisfaction of the decree of Lutufuddowla, the respondent getting nothing in the rateable distribution. The Nazim, Sadar Adalut through his, letter No. 8563 dated 8th Meher 1349 F. informed the Original'' Side of the High Court of the non-satisfaction of the decree transferred to him except to the extent of Rs. 1,491-12-11.
It would appear that the sale in execution of Lutufuddowla''s decree was set aside. The respondent on 18th Azur 1359F. applied for revival of the proceeding and later filed a regular execution petition on 19-1-1950 for the sale of the aforesaid house subject to the mortgage in favor of Lutufuddowla. This application was rejected on 25-3-1950 on the ground that it was beyond time and that the transferee Court had no jurisdiction to entertain it. The respondent took the matter in appeal and a Bench of the Hyderabad High Court by its judgment of 13-9-1953 dismissed the appeal with the following observations:
Having regard to the facts of this case, we are of opinion that the letter of 8th Meher, 1349 F. s(sic) by the Sadar Adalut to the High Court was a certificate of non-satisfaction of the decree as contemplated by S. 258, Hyderabad CPC and the Sadar Adalut ceased to have jurisdiction after the non-satisfaction certificate was sent. The Sadar Adalut, Medak, had come to the conclusion that it ceased to have jurisdiction. Under these circumstances, the Court need have gone into the question as to whether the execution application of 19th Azur 1359 F. was barred by time. We feel that it is not necessary to go into the question of limitation as regards the application of 19th Azur, 1319F.
The respondent after the pronouncement of the above judgment filed the application, out of which this appeal arises, on 26-9-1950. The prayer therein in effect was for a re-transfer of the decree for execution to the Sadar Adalut, Medak, since the proceeding in that Court had been consigned to the record room for administrative purposes and not rejected or dismissed. The appellant raised the plea of limitation and satisfaction of the decree. The latter plea was not pressed before the Court below. The argument there centred round the question of limitation. The learned Judge held that the order dated 29th Meher, 1348 F., did not amount to an order of dismissal; at the most it effected consignment of the execution proceeding to the record-room. Therefore, the said order and other similar order of the Sadar Adalut cannot be said to be either a judicial determination or a final disposal of the execution petition presented by the respondent. Consequently no question of limitation arose.
Shri Deshmukh strenuously contended before us that the order of consignment to the record room passed on 29th Meher, 1348 F. must be judged in the context of the circumstances attending it. Those circumstances he pointed out were that the ''take View'' had been sold and the proceeds thereof wholly went in satisfaction of Lutufuddowla''s decree. No other property of the judgment-debtor was left to be attached and sold in execution of the respondent''s decree. Therefore, the order aforementioned must be deemed to be an order of dismissal of the execution petition. To dispose of this contention, it must be borne in mind that CI. (5) of Art. 160, Hyderabad Limitation Act was different from CI. (5) of Art. 182 of the Indian Limitation Act. According to the latter, the period of three years commenced from the date of the final order on an application made in accordance with law to the proper court for execution or to take some step-in-aid of execution, while under CI. (5) of art. 160 of the former Act, the period of three years ran from the date of dismissal of the previous application for execution. Now if the order of 29th Meher 1348F., is read again, two circumstances stand out, firstly, the presiding Judge was not prepared to proceed with the application because he had once been the vakil of the respondent and secondly, the respondent desired the proceeding to be consigned to the record room.
The court acceded to that request. The question is whether such an order can be said to be an order of dismissal so as to make the limitation run. In Venkappa v. Lachmi Kant Rao, 32 Dec. LR 370 (A) and Kulsum Bi v. Chunnilal, 32 Dec. LR 580 ''(B) it has been held that the order consigning the execution proceeding to the record-room is tant amount to its dismissal. These authorities a(sic) unanimous in the view and we agree with them that an order consigning the execution proceeding (sic) the record room is not a disposal within the meaning of CI. (5) of Art. 182 of the Indian Limitation Act, or Article 160 of the Hyderabad Limitation (sic)
The learned advocate for the appellant re(sic) (sic)ed on Kadiresan Chettyar v. Maung San Ya, AIR 19(sic) Rang 87 (C) Mohammad Taqi Khan Vs. Raja Ram and Others, and Penumetcha Annapurnamma Vs. Polisetti Jagannadham, . None these authorities is on all fours with the pres(sic) case. In the first case a decree-holder applied execution asking for an issue of notice against judgment-debtor and the Judge ordered the not to issue and on the date when it was returnable case was closed at the request of the decree-hole.
Baguley J. held that the final order passed the application within the meaning of Article 182(sic) of the Limitation Act was the order closing the (sic) and subsequent application within three years (sic) that date was not barred by time. It was also (sic) that the fact that the application for execution withdrawn or struck off at the request of the dec(sic) holder does not prevent it from giving rise to a (sic) starting point for the period of limitation. Mob(sic) (sic)mad Taqui Khan''s case is a Full Bench deci(sic) In that case an order was passed in the following terms without notice to the parties.
"Execution struck off for partial satisfaction the decree; costs on the judgment-debtors" It was held that the order could not be construed as a provisional order suspending the applic(sic) for execution but it should be considered as a order because the question whether an exec(sic) case is still pending and has not oeen termi(sic) must depend on an interpretation of the order ed by the Court and the inference to be draw to the Court''s intention. If the Court intend(sic) the matter should be shelved for the time be(sic) the record be merely consigned to the record and be taken up later on suo motu or at that (sic)tance of the decree-holder, then obviously the is still pending and is in a state of animated s(sic) (sic)sion. Where the Court intends to dispose matter completely and no longer keeps it pe(sic) on its file and does not merely suspend the (sic)tion or consign the record to the record roo(sic) the time being, the order must be deemed a final order which will give a fresh start for (sic)pdses of limitation and that the proceeding not pending, there would, in such a case, be no (sic)tion of revival.
In the fifth case cited the decree filed an execution application for issue of a for the arrest of the judgment-debtor. An or arrest was passed but the arrest could not be (sic)ed as the judgment-debtor was not found Court thereupon passed an order saying ment-debtor not found for arrest. Struck off (sic)ven years after this order was passed, the pe(sic) filed another application for execution. B(sic) swami Nayudu J. held that whether an order or not, one has to consider the substance order and not the mere form. The mere the word ''struck off or ''dismissed'' would) not the nature of the order.
It may be noticed that all these au(sic) were dealing with the expression ''final o(sic) CI. (5} of Art 182 of the Indian Limitation Act se(sic) (sic)condly, they decide nothing which may militate ay (sic)tinst what has been held by our brother Siadat Ali Chan J. The case of Mohammad Taqui Khan on the other hand fully supports, him in the conclu(sic) (sic)ion he arrived at. If Khaleeluzzaman J. had in (sic)ended to terminate the proceeding he would have (sic)ertainly transferred the case to another Bench, but (sic)s the respondent intended to keep the execution (sic)roceeding in a state of suspended animation, the earned Judge preferred to consign the file to the record room. That order we agree, cannot be said be a dismissal within the meaning of CI. (5) of article 160 of the Hyderabad Limitation Act.
The other argument was that the application on filed by the respondent in the Sadar Adalut on 2nd Isfandar 1358 F. shows that he had been in (sic)ossession of ''Lake View'' and he was dispossessed in (sic)e result of the sale in Lutfuddowla''s decree; it must, therefore, be held that in so far as the appel(sic) (sic)ht was concerned, the decree ha been satisfied. (sic)e had not been able to follow the learned advo(sic) (sic)te on this part of the argument. The decree ob(sic) (sic)ined by the respondent was a money-decree. It is not the case of the appellant that there was anjustment udder Section 249 of the Hyderabad(sic)yil Procedure Code.
If the respondent had been in possession of the (sic)aperty and claimed restitution, it would not show (sic)it the respondent''s decree was satisfied. It was (sic)xt contended that inasmuch as the decree trans-(sic)red to the Sadar Adalut had not been received (sic)ck, the Court below had no jurisdiction to enter(sic)-(sic)n the application We know of no law which (sic)vides that where the execution proceeding has;n transferred to another Court, the transferor irt ceased to have control over the execution pro-idings, and cannot entertain an application for re(sic) (sic)al of proceedings or accede to the request that (sic) proceedings be suspended.
On the other hand, a reference to Section 250, (sic)derabad CPC would show that (sic)cution proceedings can be taken at the same time different courts. The provisions of the said sec(sic) (sic) are a complete answer to the objection raised the advocate for the appellant.
In the last resort it was taintly attempted to (sic)ue that the application was barred under Seo(sic)(sic)i 262 of the Hyderabad Civil Procedure Cade not having been presented within 12 years from date of the decree. There is no material on record to show that the provisions of the said (sic)ion can successfully be invoked at the present (sic)e of the proceeding.
The result is that the appeal fails and is by dismissed with costs.