Venkatramana (Deceased) by L.Rs and Others vs Gajanan Trading Company, Yellapur and Others

B.K. Sangalad, J.—This petition is directed against the order dated 25-2-1999 passed in Ex. No. 9 of 1997 on the file of the Civil Judge (Junior Division), Yel- Yellapur, dismissing the execution petition filed under Order 21, Rule 11 of the CPC.

The petitioners are the L.Rs of the decree-holder. The respondents are the judgment-debtors. Petitioner 1(a)-Power of attorney holder of petitioners 1(b) to 1(k) filed this execution petition under Order 21 of the CPC against the judgment-debtor 2 for recovery of arrears of decretal amount of Rs. 17,782/- passed in O.S. No. 9 of 1984. After registering this case, notice was issued to judgment-debtor 2 who appeared through his Counsel and filed objections contending that the execution petition filed is against law and facts, as such it is liable to be dismissed as not maintainable. It is also stated that this execution petition is filed only to harass the judgment-debtors. The decree-holders filed Execution Petition No. 6 of 1996. No recovery of the amount was possible in that petition and it was felt that at that moment, chance of recovery was less. Hence memo was given to close the petition for the present keeping the action for execution and right of execution preserved. So the total satisfaction was not recorded in that execution petition and it was closed for the present. Now again the decree-holders filed the present EP No. 9 of 1997 for recovery of the remaining balance of the decree amount due in the decree.

It has been argued by the decree-holders that the EP No. 6 of 1996 was closed for the present and subsequent EP No. 9 of 1996 is only an application to revive Execution Petition No. 6 of 1996 and not a separate proceeding. On the other hand the judgment-debtors have taken up the contention that the subsequent Execution Petition No. 9 of 1997 was beyond the period of limitation as such, the execution petition itself was not maintainable and cannot be considered as the one to revive Execution Petition No. 6 of 1996. The learned Civil Judge (Junior Division) has dismissed the execution petition filed by the debtors. It is held that the Execution Petition is filed beyond 12 years, as such it is not maintainable as it is hit by Article 136 of the Limitation Act.

Mr. Manjunath for Jaiprakash, learned Counsel for the petitioner submitted that the subsequent execution petition has to be considered as the one for revival of the earlier execution petition. He also relied upon the decision in the case of Thimmiah v. Rangiah AIR 1952 Mys. 67 wherein it is held as follows:

"(b) CPC (1908), Section 48 -- Execution dismissed for default of decree-holder -- Objections of judgment-debtor left open to be agitated later -- Order held, implied pendency of execution and not termination -- Next application for execution".

"Limitation Act (1908), Article 182 -- Execution petition closed for statistical purposes -- Such order is not final order and subsequent application is not fresh application but one to continue former application".

This case is also distinguishable. In the case on hand at the request of the decree-holder, the case was closed. Therefore, it cannot be said that the case was closed for the statistical purposes. I have no hesitation to hold that subsequent application is maintainable provided it is filed within the period of limitation. The commencement of limitation is from the date of the decree. Hence this case is not applicable. The last decision that was cited was in the case of Kaibala Padhan Vs. Sanyasi Sasamala and Another, , wherein it is stated as follows:

"Where an execution petition is ordered by the Court to be closed for statistical purposes, such order cannot be held to be a final order and a fresh application filed, as a result of the former petition having been closed for statistical purposes, cannot be regarded in law as being a fresh application, but an application to revive or continue the former application".

The discussion made supra is squarely not applicable to this case also. Hence, this decision will not come to the rescue of the decree-holders.

On the other hand Mr. Hegde relied upon a decision in the case of J. Rama Vs. Vijaya Bank, . In this decision, it is held that if a fresh application for new relief is filed beyond the period of limitation, it shall be considered as barred by limitation. At the cost of repetition, it has to be stated here that the closure of the first execution petition does not give fresh cause of action and fresh period of limitation. Limitation once started runs against the decree-holders and relates back to the date of decree. If subsequent execution petition is not within the period of 12 years, it shall be considered as barred by limitation. With this observation, the following order is passed:

In the result, the appeal is dismissed.