Venkappa and Others vs Lakshmikant Rao

Srinivasa Chari, J.—This appeal which arises in execution proceedings ease has been referred to the Full Bench by a Division Bench of this Court by its referring order dated 14-6-1952. The Appellants before us are the judgment-debtors and the Respondent the decree-holder. The Respondent obtained a decree on 7th Shahrewar 1328F in the Court of the Dist. Judge, Gulbarga against two persons, (1) Rajappayya, who is now dead but is represented by his legal representative and (2) Rampayya.

The decree was transferred to the District Court of Raichur for execution and the decree-holder applied for execution in the executing Court on 16th Dai 1337 F. In this application the decree-holder prayed for an attachment and sale of certain moveable and immovable properties mentioned in the list annexed to the execution application. An order of attachment was made by the Court on 29th Shahrewar 1337 F as would appear from p. 29 of the printed paper book.

Subsequently on some date in Meher 1337 F the decree-holder applied for the arrest of the judgment-debtors u/s 299, Hyderabad CPC alleging that the judgment-debtors were deliberately avoiding execution of the decree. Judgment-debtor 2 filed a counter to the petition for arrest stating that the decree-holder could not apply for arrest of the judgment-debtors, inasmuch as he had already attached the properties of the judgment-debtors and an order for sale of these properties had been made by the Court and in spite of such an order the decree-holder did not take further steps to get the properties sold.

He also stated that the decree could be satisfied by sale of the properties attached; that, therefore, the application for arrest could not be granted. Judgment-debtor 1 also filed a counter to the application for arrest on 1st Farwardi 1338 F objecting to the arrest of the judgment-debtors and pleading that the application was barred by limitation. Limitation was pleaded on two grounds:

(a) that the decree had been transferred for execution to the Court at Raichur on 13th Mehir 1333F and no application for execution was filed within three years of that date and

(b) that the objection of the judgment-debtor to execution was decided by the appellate Court the Sadar Adalat, Gulbarga on 11th Dai 1334F and , that therefore the application filed on 16th Dai 1337F was barred.

The proceedings were at this stage when it would appear from the proceedings of the Court of 23rd Ardhibehist 1339F printed at p. 24 of the Paper Book that the Vakil for the decree-holder made a statement that he does not wish to carry on the sale of the properties that were attached on 29th Shahrewar 1337F because objection petitions were being filed with regard to the lands that were attached and those objection petitions were allowed, and because the judgment-debtors were unnecessarily putting the decree-holder to inconvenience. The Court passed an order that the file be put up on 27th Khurdad 1339 F. Order was passed for the arrest of judgment-debtor 2.

On 15th Mehir 1341F the District Judge of Raichur accepted the contention of the judgment-debtors and held that the application of 16th Dai 1337F was barred by limitation and dismissed the same.

The decree-holder preferred an appeal to the Sadar Adalat and the Sadar Adalat confirmed the order of the lower Court. On appeal to the High Court, the High Court by its order dated 15th Bahaman 1349F reversed the decisions of the Courts below and held the application to be within time.

Against this judgment of the High Court the judgment-debtors preferred an appeal to the Judicial Committee and the Judicial Committee finally upheld the judgment of the High Court on 14th Isfandar, 1350F. The result was that the ease came back to the executing Court for further proceedings as the application of the decree-holder of 16th Dai 1337F was held by the highest Court as being within time.

Alter the case came back to the executing Court the decree-holder filed an application on 26th Azur 1352F stating that the Judicial Committee bad held his application of 16th Dai 1337F to be within time. He prayed that the old execution application be taken on file and necessary orders be issued. Notice was issued to the judgment-debtors. J.D. No. 1 was absent in spite of service of notice and he was set ex parte on 23rd Farwardi 1352 F.

Substituted service was ordered against judgment-debtor 2 and so both were set ex parte. The Court passed an order for attachment of the property as prayed for by the decree-holder and the decree-holder was asked to file a list of the properties and the necessary process. This order was passed on 24th Khurdad 1352 F. At this stage on 29th Shahrewar 1352 F the legal representative of judgment-debtor 1 filed an objection petition contending that the decree-holder should have filed a substantive application for execution, a mere application with a prayer that the old petition be revived, was not competent, and no orders for attachment could be passed on the same.

When this application was filed the judgment-debtors raised the plea that the application was barred by limitation u/s 262, Code of Civil Procedure. The Court passed au order on 24th Khurded 1352 F ordering the attachment of the properties as prayed for and calling upon the decree-holder to file a list of the properties and deposit necessary costs. Subsequently on 25th Amarded 1353F the Court passed a further order stating that the properties a list of which had already been filed by the decree-holder be attached.

Evidently no attachment was effected and no report of the properties having been attached was submitted to the Court. It would appear from the record that on 1st Farwardi 1353 F the Court passed an order holding that the prayer made on 26th Azur 1352 F renewing the relief for the attachment of the properties was made beyond the period of 12 years alter the date of the decree and that, therefore, it was barred by limitation u/s 262, Hydeabad CPC (Section 48, Indian Code of Civil Procedure)

The decree-holder appealed against this order of the executing Court and the appellate Court disagreed with die executing Court and allowed the appeal holding that the application was within time. The judgment-debtor has, therefore, come up now in appeal to the High Court and the learned Judges who heard the appeal thought it desirable to refer the whole case to the Full Bench inasmuch as the question involved was an important one. We heard the arguments of the learned advocates for the parties.

Shri Gopalrao Ekbote for the Appellants contends that the decree-holder, when he prayed for the arrest of the judgment-debtors abandoned his prayer for the attachment of the immovable properties of the judgment-debtors. Inasmuch as the decree-holder had abandoned one relief, the application that he made subsequently on 26th Azur 1352F for the attachment of the properties after the case came back from the Judicial Committee must be deemed to be a fresh application and as this was made after the expiry of 12 years after the date of the decree, the application was barred by limitation u/s 262, Hyderabad Code of Civil Procedure.

He argued that the fact that an order of attachment was made would not make any difference inasmuch as no attachment was effected and if under these circumstances the decree-holder deliberately chose to give up the relief relating to attachment of the properties and subsequently made a prayer for the attachment of the properties, the second application cannot but be regarded as a fresh application. It was urged that the application, in so far as it related to the attachment of immovable properties, must be regarded as having come to an end by reason of the relinquishment of the decree-holder.

This point was further elaborated by the argument that Section 229, Hyderabad CPC contained an explanation wherein it was stated that when an application for arrest was made by a decree-holder, if the judgment-debtor could satisfy the Court that there was sufficient property against which the decree-holder could proceed and his decree could be satisfied, that would be a sufficient ground for not ordering arrest.

Basing his argument on this explanation, Shri Ekbote contended that the decree-holder was aware of this provision of law viz., that he could not get an order of arrest while at the same time continue to have the sale proceedings and, therefore, he preferred to abandon the prayer with regard to the attachment and sale of immovable properties and confined himself to the arrest of the judgment-debtors.

It was also urged that the decree-holder had stated in so many words that he does not want to pursue the proceedings relating to the attachment and sale of the immovable properties as there had been a number of objections filed by the judgment-debtors in respect of these properties and those objections were allowed. Those factors according to the learned advocate, conclusively proved that the decree-holder abandoned the relief with regard to the attachment and sale proceedings.

The learned advocate for the Respondent, Shri Vaidya, urged that under no circumstances could it be considered that the attachment of the immovable properties had ceased, for there was no order of the Court releasing the properties from attachment.

He argued that unless and until there was an order passed by the executing Court directing the release of the properties from attachment, the attachment cannot be regarded as having discontinued; even under the provisions of Order 21, Rule 57, Code of Civil Procedure; an attachment on a property made at the instance of the decree-holder would come to an end only when the execution application is dismissed for default; in this case there was no dismissal of the execution application as such, and, therefore, no question of the attachment ceasing would arise.

Section 262, Hyderabad Code of Civil Procedure, corresponding to Section 48, Indian Code of Civil Procedure, says that where a fresh application to execute a decree is made alter the expiry of 12 years from the date of the decree sought to be executed no order shall be made thereon unless it be a decree granting an injunction. It would therefore follow that Section 48 would be a bar where the execution application is a fresh application and not one in continuation of or by way of revival of a previous application.

It should be noted that the words "fresh application" have been substituted for the words subsequent application occurring in the old section. Therefore, what is contemplated under this section by the words "fresh application" is a substantive application for execution and not one which is merely ancillary or incidental to a previous application, that is to say, if the decree-holder seeks to set the court into motion to take further proceedings in respect of an application already pending or where the application has been recorded or where the execution proceedings have been suspended by reason of appeal or other proceedings, it would not be regarded as a fresh application.

The Court would have to consider the substantive nature of the allegation. The form of the application is not what would matter. Therefore, the question of the character of the application has to be decided upon the particular circumstances of each case and when determining the character of the application, the Court would be guided by the substance of the application and not by its form. This principle is well established by the decision of the Privy Council in the case of - AIR 1939 80 (Privy Council) .

The contention of the learned advocate for the judgment-debtors is that although the decree-holder applied for attachment of the Immovable property of the judgment-debtors he gave it up and abandoning his relief by way of attachment of Immovable property sought for the arrest of the judgment-debtors and as such his application praying for the arrest of the judgment-debtors should be regarded as a fresh application.

We may point out here that it is open to a decree-holder to ask for simultaneous execution praying for the attachment of property as well as for the arrest of the judgment-debtor. On 29th Shahrewar 1339F attachment of Immovable property was effected.

The proceedings of 23rd Ardhibehist 1339F (printed at p. 24 of the Paper Book) would show that the decree-holder stated to the Court that he did not want the sale proceedings of the Immovable property to be continued because the same properties had been attached in other decrees and objection petitions were filed and those objections had been allowed the D.H. chose to apply for arrest. The argument that is further advanced is that there was no application for attachment pending in the Court as it has been given up.

We may straightaway point out that it is open to a decree-holder to abandon any relief or withdraw his execution application and if he withdraws he is not debarred, from filing a fresh application. The question whether the decree-holder has an absolute right to withdraw his execution application and whether such right is subject to the control of the Court under certain circumstances has come up for consideration before the Courts. In this regard it might be useful to refer to the decision of the Privy Council in the case of - "Thakur Parshad v. Fakir-ul-lah 22 Ind App 44 (PC) (B).

Their Lordships of the Privy Council reversed the decision of the Allahabad High Court in - ''Sarju Prasad v. Sita Ram 10 All 71 (C). The Allahabad High Court held that Order 23, Rule 1, Code of Civil Procedure, applied to execution proceedings and as such where the decree-holder withdrew the execution application without permission to file a fresh execution petition he could not do so. This, observation of the Allahabad High Court'' was dissented from by the Privy Council. Their Lordships-observed:

And it is clear both from the Code and from the provisions of the Limitation Act, 1877, that the Legislature contemplated that there might be a succession of applications.

The High Courts of Patna and Calcutta have adopted the view that the right of the decree-holder to withdraw is only subject to this limitation that in cases where a third party has entered on the scene or has acquired an interest in the property sold in execution of the decree the Court might disallow the decree-holder from withdrawing if by such withdrawal the third party is prejudiced or if that would cause injustice to the judgment-debtor vide - ''Kenaram v. Kailash Chandra 18 C LJ 53 (D) and - Kishun Dutt and Others Vs. Gulabchand Prasad and Others, .

Applying the above principle to the above case, at the stage at which the decree-holder is said to have stated to the Court that he did not want the sale proceedings to go on, no one had acquired any interest. Therefore the principle of those cases cannot apply to this case.

It is a fallacy, in our opinion, to regard the application of 26th Azur 1352F as a fresh application because the relief by the decree-holder for execution of the decree by attachment of the Immovable property of the judgment-debtors was made in the first instance and when he found that no useful purpose would be served by pursuing the property he asked for a different relief viz., the arrest of the judgment-debtors. Therefore, in our opinion, the application of 26th Azur 1352F could not be regarded as a fresh application having regard to the antecedent proceedings.

It is essential for the operation of Section 48 that the application should have been made for the first time after the expiry of 12 years. This is not the case here. It is clear from the record that the order of attachment was made on 30th Shahrewar 1337F and the further proceedings relating to issue of notice to the judgment-debtors continued till 1339 F. That would show that the proceedings relating to attachment and sale of immovable properties were still going on, when the decree-holder asked for arrest of the judgment-debtor. This must be regarded as a prayer for simultaneous execution.

It would also appear from the proceedings of the Court dated 23rd Ardhibehist 1339 F that when granting the prayer for the arrest of the judgment-debtors the Court did not order the release of the attachment but merely adjourned the case. Therefore there was no fresh prayer. Even if this application is regarded as a fresh prayer for attachment, we would only regard it as a superfluity which would not matter. Therefore until final orders were passed the attachment must he regarded as subsisting.

Our attention was drawn to a decision of the Privy Council in the case of - ''Maharaj Bahadur Singh v. A.H. Forbes AIR 1929 PC 209 (F) and on the strength of this case it was argued that in this case the decree-holder had abandoned the attachment of the immovable property in Mehir 1337F and therefore, if he made an application in 1352F it must be regarded as a fresh application. We may point out that the facts of the ease which went up to the Privy Council and relied upon by the advocate for the Appellants are distinguishable from the facts of the case now before us.

Their Lordships were clearly of the opinion having regard to the circumstances of that case that the decree-holder deliberately abandoned the position that there was a charge on the Patni tenure; that the subsequent application marked, a substantial departure from the original application and in that view they held that the subsequent application could not be regarded as a continuation of the previous application and therefore the subsequent one was held to be barred u/s 18, Code of Civil Procedure. That case cannot help the Appellants.

The distinguishing feature in the case before us is that the proceedings relating to attachment and sale of immovable property did not come to an end. There was no specific, order of the Court terminating the proceedings. Where no final orders are passed by the Court, the execution application would be held to be pending.

It would be useful to state here at this stage, that when the application in Meher 1337F was made no objection was raised by the judgment-debtors basing it upon Section 48. Although the principle of res judicata as such may not apply to execution proceedings an objection which could have been raised by the judgment-debtors at that time not having been raised, that plea could not be, raised by reason of the application of the principles of constructive yes judicata.

Where after the service of notice of an application for execution by the decree-holder the judgment-debtors do not raise the plea of limitation stating that the application is a fresh one presented after the expiry of 12 years from the date of the decree, they cannot be allowed to raise the same at a subsequent stage. We are supported in this view by the decision of the Privy Council in the case of - ''Raja of Ramnad v. Velusami Tewar AIR 1921 PC 23 (C). The Madras High Court has also taken the same view in the case of - R.D.K. Venkatalingama Nayanim Bahadur Varu Vs. Raja Dhanaraj Girji,

We are, therefore, of the opinion that the application of 26th Azur 1352F cannot be regarded as a fresh application so as to attract the provisions of Section 48, Code of Civil Procedure. The decree-holder''s application must, therefore, be held to be within time. The result is the appeal is dismissed with costs. Advocate''s fee Rs. 50/-.