Madras High Court
Subbulakshmi Ammal vs R. Balasubramanian And Ors. on 27 February, 1991
Equivalent citations: (1991)1MLJ380, AIR 1992 MADRAS 48, (1991) 1 MAD LJ 380
ORDER Srinivasan, J.
1. The order of the executing court dismissing the petition for execution is unsustainable. The petitioner obtained a decree against the respondents on 30.11.1963. Execution proceedings were filed on 22.4.1975. It was taken on file as E.P. No. 74 of 1975. The property of the Judgment-debtor was brought to sale, but the sale was adjourned on the ground of no bidders. The judgment-debtor filed a suit O.S. No. 83 of 1977 and prayed for an order of injunction in I.A. No. 446 of 1977 restraining the decree-holder from proceeding further with the execution of the decree. On 28.2.1978 an order of injunction was passed. Pursuant to the said order of injunction, the executing court closed the execution petition on 30.8.1978, but directed the attachment to continue. The suit O.S. No. 83 of 1977 was dismissed on 11.3.1982. On 27.3.1982, the present execution petition was filed by the decree-holder and numbered as E.P. No. 17 of 1983. The decree-holder also filed a memo in the executing court to the effect that the prior E.P. is revived and the present E.P. is only a continuation of the prior E.P.
2. The executing court taking a wrong view that the execution proceedings are barred by limitation dismissed the same. Aggrieved by the said order, the decree-holder has preferred this revision petition.
3. Even on the statement of facts given above, it is clear that the execution proceedings are not barred by limitation. On 30.8.1978, the executing court had no jurisdiction to close the E.P. As there was an order of injunction passed by a Civil Court restraining further proceedings in the E.P. the executing court ought to have kept the petition pending. But for statistical purposes it had closed the E.P. and at the same time directed the attachment to continue. That itself shows that the executing court did not intend to terminate the proceedings, but thought of keeping the execution proceedings alive and pending, though for the purpose of record it did not want to show the execution petition of the year 1975 as pending. Thus the order dated 30.8.1978 will not have the effect of dismissing the execution petition filed by the decree-holder. In the eye of law, E.P. No. 74 of 1975 is still pending as there was no termination of the same in accordance with law.
4. The Supreme Court has in Venkanna v. Bangaraju , ruled that the legal position in cases like this will be that the execution proceedings is pending. The relevant passage in the judgment of the Supreme Court is as follows:
The question, therefore is whether E.P. No. 58 of 1953 is a fresh application within the meaning of Section 48 of the Code. The answer to this question mainly turns upon the question whether the previous application i.e., Ex. P-13 of 1939, was finally disposed of by the executing court from the narration of facts given by us earlier it is clear that the said execution petition was 'closed' for statistical purposes. As the High Court stayed the execution pending the appeal filed by the judgment-debtors, the decree-holders were not in a position to proceed with the execution petition, and, therefore, it was closed. Some argument was raised on the question whether the said execution petition was closed for statistical purposes or was dismissed and it was contended that under the Code of Civil Procedure there was no power conferred upon a court to close execution proceedings for statistical purposes, and that even if such an order was made, it must be deemed to be an order dismissing the execution petition. The actual order dated December 28, 1948 has not been placed before us. But in E.P. No. 58 of 1953 in Col. 6 thereof it is mentioned that E.P. No. 13 of 1939 was closed on December 28, 1948. In the Counter-affidavit filed by one of the Judgment-debtors it is stated that E.P. No. 13 of 1939 was dismissed on December 28, 1948 and not merely closed. After the disposal of the appeal by the High Court and before the filing of E.P. No. 58 of 1953, the decree-holders filed E.A. No. 142 of 1952 for reopening E.P. No. 13 of 1939. On that petition the learned Subordinate Judge made the following Order:
The previous E.P. was merely closed. Petitioner may file a regular E.P. on which proceedings will continue from the stage at which they were left in E.P. No. 13 of 1939.
This order discloses that the previous execution petition was only closed. The Subordinate Judge must have presumably looked into the previous record. The learned Subordinate Judge proceeded on the assumption that the previous execution petition was pending, though he dismissed the present execution petition on another ground. This factual position was not contested even in the High Court, for the High Court stated that the previous application was merely closed for statistical purposes. In the circumstances we must proceed on the assumption that the E.P. No. 13 of 1939 was only closed for statistical purposes.
Learned Counsel for the appellants contends that the Code of Civil Procedure does not sanction the passing of an order closing an execution petition for statistical purposes and that that practice has been condemned by courts. Under Order 21, Rule 17(1) of the Code the Court may reject an execution application if the requirements of Rules 11 to 14 have not been complied with. Under Rule 23 thereof, if the Judgment-debtor does not appear or does not show cause to the satisfaction of the court why the decree should not be executed, the court shall order the decree to be executed, and where such person offers any objection to the execution of the decree, the court shall consider such objection and make such order as it thinks fit. Under Rule 57 thereof, 'Where any property has been attached in execution of a decree but by reason of the decree-holder's default the Court is unable to proceed further with the application for execution, it shall either dismiss the application for execution, or for any sufficient reason adjourn the proceedings to a future date....'Relying upon these provisions it is argued that though the power of the Court to make an Order under Order 21, Rule 23(2) is wide and it can make any order it thinks fit, it can only make one or other of the two orders mentioned in Rule 57, when it would not proceed with the execution because of the default of the decree-holder. It is said that in this case the decree-holders could not proceed with the execution in view of the stay order of the High Court and, therefore, the executing court could have either dismissed the application or adjourned the proceedings to a future date and it has no jurisdiction to pass an order closing the execution for statistical purposes. It is further said that an order closing proceedings for statistical purposes is not an order of adjournment, for an order of adjournment implies that the application is on the file, whereas the object of closing is to take it out of the file, though temporarily, and therefore, the order, in effect and substance, is one of dismissal. Assuming that the order was made by reason of the decree-holder's default within the meaning of Order 21, Rule 57 of the Code, we find it difficult to attribute something to the Court which it never intended to do. It is true courts have condemned the practice of executing courts using expressions like 'closed', 'closed for statistical purposes', 'struck off, 'recorded' etc., and they also pointed out that there was no provision in the Code of Civil Procedure for making such orders : See Biswa Sonan Chunder Gossamy v. Binanda Chunder Dibingar Adhikar I.L.R. 10 Cat 416 at 422, V. Damodara Rao v. Official Receiver, Kistna (1945) 2 M.L.J. 456 : I.L.R. 1946 Mad. 527: A.I.R. 1946 Mad. 170, Moidin Kutty v. Doraiswami . It is not necessary to express our opinion on the question whether such procedure is sanctioned by the Code of Civil Procedure or not; but assuming that the court has no such power, the passing of such an order cannot tantamount to an order of dismissal, for the intention of the court in making an order 'closed' for statistical purposes is manifest. It is intended not to finally dispose of the application, but to keep it pending. Whether the order was without jurisdiction or whether it was valid, the legal position would be the same; in one case it would be ignored and in the other, it would mean that stated. In either case the execution petition would be pending on the file of the court. That apart, it is not the phraseology used by the executing court that really matters, but it is really the substance of the order that is material. Whatever terminology may be used, it is for the court to ascertain, having regard to the circumstances under which the said order was made, whether the court intended to finally terminate the execution proceedings. If it did not intend to do so, it must be held that the execution proceedings were pending on the file of the court. We have no hesitation, therefore, in agreeing with the High Court that E.P.No.13 of 1939 is pending on the file of the executing court and that the present application is only an application to continue the same.
5. The ruling of the Supreme Court will apply on all fours to this case and I have no hesitation to hold that E.P. No. 74 of 1975 is still pending in the eye of law and for the purposes of statistical records E.P. No. 17 of 1983 is now on file and it is only a continuation of E.P. No. 74 of 1975. Hence no question of bar of limitation will arise in this case, as E.P. No. 74 of 1975 was filed well within the time prescribed by law for execution of the decree.
6. Learned Counsel for the respondents placed reliance on the judgment of Justice Ramanujam in Dhanalakshmi Animal v. Ramaswamy Pillai (1973) 1 M.L.J. 399. In that case, the first execution petition was dismissed by the court and the second execution petition was filed after the expiry of the period of twelve years from the date of decree. It was contended before the learned Judge that the period of limitation should be calculated from the date of the order of dismissal of the first execution petition. Rejecting the said contention, the learned Judge held that under Article 136 of the new Limitation Act, the period was to run from the date of decree and the order in the earlier execution proceeding was not the starting point of limitation. The judgment has no application to the present case, as the facts here are entirely different.
7. My attention is drawn by learned Counsel for respondents to a judgment of the Patna High Court in Chandra Mouli v. K.B.N. Singh A.I.R. 1976 Pat. 208. There, the only question was whether the time taken by the court for the purpose of drafting the decree after the delivery of the judgment could be excluded in calculating the period of limitation for executing the decree. The court held that the decree becomes executable the moment the judgment is delivered. The court pointed out that the decree should bear the date of judgment and it is as if the decree was passed on the same date. Just because there is a lapse of some time between the delivery of judgment and the drafting of decree, it would not enable the decree-holder to exclude that period for filing an execution proceeding. That judgment also has no relevance to the present case.
8. Learned Counsel for respondents referred to Kali Prasad v. Bhagwat Prasad . In that case, there was a claim proceeding and the decree-holder had to contest the same. The decree-holder had to file a suit in order to defeat the claim proceeding of the claimant and ultimately he succeeded in the same. After the dismissal of the suit, the decree-holder took his own time to file execution proceeding. The court held that the period of limitation should be calculated from the date of decree and the decree-holder cannot choose his own date for filing a fresh execution petition after the disposal of the claim proceeding. The facts are entirely different and the judgment will have no bearing on the present case.
9. This is a case clearly covered by the ruling of the Supreme Court referred to already. Hence the order of the court below has to be set aside. The C.R.P. is allowed. The order made by the Sub-Judge, Tuticorin, in E.P. No. 17 of 1983 is set aside. The Sub-Judge is directed to restore the E.P. to file and proceed further with the execution of the decree. The petitioner will have her costs from the respondents in this revision petition. Counsel's fee Rs. 500.