# PENTAPATI CHINNA VENKANNA & ORS v. PENTAPATI BENGARARAJU & ORS

- **Citation:** [1964] 6 S.C.R. 251
- **Court:** Supreme Court of India
- **Decided:** 1964-01-20
- **Case number:** Civil Appeal No. 690 of 1962
- **Bench:** K. Subba Rao, J. R. MuDHOLKAR
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/pentapati-chinna-venkanna-ors-v-pentapati-bengararaju-ors-3072
- **Pages:** 10

## Headnote

<ode of Civil Procedure (Act 5 of 1908), s. 48-Execution Petl1iunFresh application-What is-''closed", meaning of.
The decree holders filed an application for execution of the d~crce
!l:eing E.P. No. 13/1939.
This execution proceeding had to be stayed
as a result of the stay order of the High Court.
Ultimately the c:xccu·
ting court made an order on E.P. 13/1939 to the effect that the Execution Petition was "closed".
On January 21, 1952, the decree holders
made an application for reopening the execution E.P. No. 13/1939 and
for proceeding with the execution of the decree. The Subordinate Judge,
(executing court) holding that the previous execution petition was merely
''closed" directed the decree holders to file a regular execution petition.
On October 11, 1952 the decree holders filed E.P. No. 58/53 to continue
further proceedings in E.P. No. 13/1939.
'fhe judgment debtors filed
a counter affidavit pleading, inter. alia that the decree sought to be executed was made on September 22, 1938, and that as E.P. No. J3/I939
was dismissed on December 28, l 948, the present apf)iic:ation. having been
filed more than 12 years from the date of decree, was barred under
s. 48 of the Code of Civil Procedure.
On these
fa·~ts the Subordinate
Judge held that though the decree holders were entitled to continue previous execution petition, E.P. No. 58/53 was a fresh application as it
differed from the original execution petition.
On appeal, the High Court
held that E.P. No. 13/1939 was merely closed for statistical purposes, and.
therefore, the execution petition filed in 1939 was still pending and the
·decree hofdeff. · were entitled to proceed with that petition.
Iience the
appeal.
The question for consideration is whether E.P. No. 58/53 is a fresh
i:lpplication within the meaning of s. 48 of the Code.
Held: (i) It is true courts have condemned the practice of executing
<:ourts using expressions like "closed'', "closed for statistical purposes'",
••struck off" "recorded" etc., and they have also pointed out that there
is no provision in the Code of Civil Procedure for making such orders.
llut assuming that the court has no such power, the passing of such
an order cannot be tantamount to an order of dismissal, for the inten1ion of the court in making an order "closed" for statistical purposes
is ma:Ji.ifest. It is intended not to fina1Iy dispose of the application, but
to keep it pending.
Whether the order was without jurisdiction or whe1her it was valid, the legal position would be the same: in one case it
would be ignored and in the other it would mean what it
stated. In
either case the execution petition would be pending on the file of the
court. It is uot the phraseology used by the Executing Court that really
1964
January, 211
252
SUf'REME COURT REPORTS
[19b4]
1964
matters, but is is really the substance of the order that is
material~
Whatever terminol0gy may be used, it is for the Court to ascercain.
P. Chinna Ye1Jkanna
having regard to the circumstances under which tbe said order \Vas made,
v.
whether the Court intended to finally terminate the execution proceedP. Bangara ·,Raju ings.
If it did not intend to do so, it must be held that Lhe execution
proceedings were pending on the file of the Court. In the present case
the subsequent application i.e. E.P. No. 58/53 is only an application to
continue the previous application i.e. E.P. 13/1939.
Biswa Sonan Chunder Gossyamy \". Binanda Chander Dibingar Adhikar Gossyamy, (1884) I.LR.
10 Cal.
416, Vadlamannati
Damodara
Rua v. Official Receiver, Kist11a, I.L.R. 1946 Mad.
527
anlt
Moidht
Kutty v. Doraiswami, A.LR 1952 Mad. 51, referred to.
(ii) An application made after 12 years from the date of decree
Wtluld be a fresh application within the meaning of s. 48 of the Code·
of Civil Procedure, if the previous application was finally disposed of.
It would also be a
fresh application if it asked for a
relief against
parties or properties different from those proceeded against in the previous execu

## Text

6 S.C.R.
SUPREME COURT REPORTS
251
PENTAPATI CHINNA VENKANNA & ORS.
v.
PENTAPATI BENGARARAJU & ORS.
(K. SUBBA RAO AND J. R. MuDHOLKAR JJ.)
<ode of Civil Procedure (Act 5 of 1908), s. 48-Execution Petl1iunFresh application-What is-''closed", meaning of.
The decree holders filed an application for execution of the d~crce
!l:eing E.P. No. 13/1939.
This execution proceeding had to be stayed
as a result of the stay order of the High Court.
Ultimately the c:xccu·
ting court made an order on E.P. 13/1939 to the effect that the Execution Petition was "closed".
On January 21, 1952, the decree holders
made an application for reopening the execution E.P. No. 13/1939 and
for proceeding with the execution of the decree. The Subordinate Judge,
(executing court) holding that the previous execution petition was merely
''closed" directed the decree holders to file a regular execution petition.
On October 11, 1952 the decree holders filed E.P. No. 58/53 to continue
further proceedings in E.P. No. 13/1939.
'fhe judgment debtors filed
a counter affidavit pleading, inter. alia that the decree sought to be executed was made on September 22, 1938, and that as E.P. No. J3/I939
was dismissed on December 28, l 948, the present apf)iic:ation. having been
filed more than 12 years from the date of decree, was barred under
s. 48 of the Code of Civil Procedure.
On these
fa·~ts the Subordinate
Judge held that though the decree holders were entitled to continue previous execution petition, E.P. No. 58/53 was a fresh application as it
differed from the original execution petition.
On appeal, the High Court
held that E.P. No. 13/1939 was merely closed for statistical purposes, and.
therefore, the execution petition filed in 1939 was still pending and the
·decree hofdeff. · were entitled to proceed with that petition.
Iience the
appeal.
The question for consideration is whether E.P. No. 58/53 is a fresh
i:lpplication within the meaning of s. 48 of the Code.
Held: (i) It is true courts have condemned the practice of executing
<:ourts using expressions like "closed'', "closed for statistical purposes'",
••struck off" "recorded" etc., and they have also pointed out that there
is no provision in the Code of Civil Procedure for making such orders.
llut assuming that the court has no such power, the passing of such
an order cannot be tantamount to an order of dismissal, for the inten1ion of the court in making an order "closed" for statistical purposes
is ma:Ji.ifest. It is intended not to fina1Iy dispose of the application, but
to keep it pending.
Whether the order was without jurisdiction or whe1her it was valid, the legal position would be the same: in one case it
would be ignored and in the other it would mean what it
stated. In
either case the execution petition would be pending on the file of the
court. It is uot the phraseology used by the Executing Court that really
1964
January, 211
252
SUf'REME COURT REPORTS
[19b4]
1964
matters, but is is really the substance of the order that is
material~
Whatever terminol0gy may be used, it is for the Court to ascercain.
P. Chinna Ye1Jkanna
having regard to the circumstances under which tbe said order \Vas made,
v.
whether the Court intended to finally terminate the execution proceedP. Bangara ·,Raju ings.
If it did not intend to do so, it must be held that Lhe execution
proceedings were pending on the file of the Court. In the present case
the subsequent application i.e. E.P. No. 58/53 is only an application to
continue the previous application i.e. E.P. 13/1939.
Biswa Sonan Chunder Gossyamy \". Binanda Chander Dibingar Adhikar Gossyamy, (1884) I.LR.
10 Cal.
416, Vadlamannati
Damodara
Rua v. Official Receiver, Kist11a, I.L.R. 1946 Mad.
527
anlt
Moidht
Kutty v. Doraiswami, A.LR 1952 Mad. 51, referred to.
(ii) An application made after 12 years from the date of decree
Wtluld be a fresh application within the meaning of s. 48 of the Code·
of Civil Procedure, if the previous application was finally disposed of.
It would also be a
fresh application if it asked for a
relief against
parties or properties different from those proceeded against in the previous execution petition or asked for a relief substantially different
from that asked for in the earlier petition.
In the present case the
parties are substantially the same in both proceedings, and the decree
holders are only proceeding against properties included in t!te previous.
application i.e. E.11. No. 13/1939.
It cannot, therefore, be treated as
a fresh aprlication within the meaning of s. 48 of the Code.
Bundhu Si•1gh v. Kayastha Trading Bank, (1931) I.LR. SJ All. 419,
Sri Raja D. K. Venkatc; Lingama Nayanim v. Raja lnuganti Rajagopala
Venkata Narasimha Rayanim, I.L.R. [1947] Mad. 525, lppagunta Lakshn1i11ar"si11ga Rao v. lppaf?unta Balas11brahama11yan1. A.l.R. 1949
~fad.
251 and Gaianand Sah v. Dayanand Thakur (1942), J.L.R. 21 Pat. 838.
discussed.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 690
of 1962.
Appeal from the judgment and order dated March 5,
1959, of the Andhra Pradesh High Court in Appeal against
order No. 151 of 1955.
S. Suryaprakasam and Sardar Bahadur, for the appellants.
The respondent did not appear.
January 20, 1964.
The Judgment of the Court was
delivered by
S11bba Rao J.
SUBBA RAo J.-This appeal by certificate raises the
question of the applicability of s. 48 of the Code of Civil
Procedure, hereinafter called the Code, to the facts of the
case.
6S.C.R
SUPREME COURT REPORTS
253
The relevant facts are as follows: In the year 1928 one
Pentapati Venkataramana filed Original Suit No. 3 of 1928
in the Court of the Subordinate Judge, Visakhapatnam,
against 29 defendants for accounts of dissolved partnerships
and for tbe recovery of amounts due to him.
On March
30, 1932, the suit was dismissed by the learned Subordinate
Judge.
On appeal, the High Court of Madras set aside the
decree of the Subordinate Judge and passed a joint and
several decree in favour of the plaintiffs and defendants 24
to 27 for a sum of Rs. 54,350 with interest thereon.
On
February 15, 1939, the decree-hol_ders filed an application
for execution of the decree, being E.P. No. 13 of 1939, and
prayed for realization of the decretal amount by attachment
and sale of 31 items of properties described by them in the
schedule (Ex.
B-4)
annexed
thereto.
The judgmentdebtors filed an objection to the attachment of some of the
~aid items, but that was dismissed.
Against the order of
dismissal of their objection, 1i1e judgment-debtors filed
an
appeal to the High Court, being C.M.A. No. 26 of 1944.
Pending the disposal of the C.M.A., the High Court granted
an interim stay of E.P. 13 of 1939.
Later, the appeal was
dismissed on April 26, 1945.
After the dismissal of the
appeal, when the decree-holders sought to proceed with the
execution, the judgment-debtors filed another application_
being E.A. No. 575 of 1945, alleging that the decree has
been adjusted and for recording satisfaction of the decree.
But the said application was
dismissed on December 12,
1945. The judgment-debtors went up on appeal to the
High Court against the said order of dismissal and obtained
an interim stay of E.P. 13 of 1939.
On September 9, 1947,
the High Court allowed the a ppeq] and remanded the case
to the trial court for
asce!"taining whether there was an
adjustment
of the
decree as
pleaded by the judgmentdebtors.
On remand, the executing court again dismissed
the application filed by the judgment-debtors.
Against the
~aid order, the judgment-debtors again preferred an appeal,
being C.M.A. No. 127 of 1948, in the High Court of Madras
and ·obtained an interim stay of the execution.
The interim
order was made absolute on November 24, 1948.
As the
execution of the decree was stayed by the High Court, the
executing court made an order on E.P. 13 of 1939 to the
effect that the petition was "closed".
On July 31, 1951, the
1964
P. Chi11na J:'e11kan11a
Y.
P. Bangara Raju
Subba Rao /.
254
SlJ1'REME COURT REPORTS
1964
High Court dismissed C.M.A.127 of 1948.
On January 21,
P. Chinna Ven1952, the decree-holders made an application being E.A.
kanna
No. 142 of 1952, in E.P. 13 of 1939 for reopening the said
P.
Bang~ra Raju execution petition and for proceeding with the execution of
Subba Rao J.
the decree.
The learned Subordinate Judge, holding that
the previous execution petition was merely "closed", directed
the decree-holders to file a regular execution petition.
On
October 11, 1952, the decree-holders filed E.P. No. 58 of
1953 to continue further proceedings in E.P. 13 of 1939 as
per the order made · in E.A. No. 142 of
1952 passed on
October 4, 1952.
In that petition the decree-holders prayed
that the properties mentioned in the draft proclamation filed
in E.P. No. 13 of 1939 and brought to sale may be sold for
the realization of the money due to the decree-holders and
the proceeds applied for the discharge of the decree-debt.
The judgment-debtors filed a counter-affidavit pleading, inter
alia, that the decree sought to be executed was made on
September 22, 1938, and that as E.P. No. 13 of 1939 was
dismissed on December 28, 1948, the present application,
. having been filed more than t 2 years from the date of the
decree. was barred under s. 48 of the Code.
The learned
Subord_inate Judge held that though the decree-holders were
entitled to continue the previous execution petition, E.P. 58
of 1953 was a fresh application, as in form. as well as in
details it materially differed from the original execution petition.
On appeal, a division Bench of the Andhra Pradesh
High. Court took a different view and held that E.P. 13 of
1939 was merely closed for statistical purposes and, therefore, the execution petition filed in 1939 was still pending
and the decree-holders were entitled to proceed with that
petition.
The High Court further observed that the said
position was not contested by leaPned counsel for the respondents.
We understand this observation only to mean
that learned counsel appearing for the respondents therein
did not contest ihe position that if the execution petition was
not dismissed but was only closed for statistical purposes,
the decree-holders were entitled to proceed with that petition.
The High Court remanded the case to the learned Subordinate Judge for disposal according to law after considering
the other contentions of the judgment-debtors. Hence the
appeal.
6 S.C.R.
SUPREME COURT REPORTS
255
Mr. Suryaprakasarn, learned counsel for the appellants,
1964
rai~ed before us the following two points: (I) The prernms p, Chin11a ven.
execution petition was dismissed and, therefore, it was not
kan11a
pending al the time of filing of E.P. 58 of 1953, and, there- P. Ban;;,ra Ra/u•
fore, the later execution petition was a fresh application
Subba Rao J.
within the meaning of s. 48 of the Code; and (2) even if
the previous application was only closed for statistical purposes, and the decree-holders could apply for reviving those
proceedings, E.P. No. 58 of 1'953 was a fresh execution
petitian because the parties and the pro;>erties proceeded
against were different and
the relief
asked for was also
different.
Before we consider the question raised, it would be convenient at the outset to look at the material provisions of
s. 48 of the Code.
It reads:
"( 1) Where an application to execute a decree not
being a decree granting an in junction has been
made, no order for the execution of the same
decree shall be made upon any fresh application
presented after the expiration of twelve years
from-
(a) the date of the decree sought to be executed."
This section corresponds to paras 3 and 4 of s. 230 of the
Code of 1882.
The relevant part of the section read:
"Where an application to execute a decree for the·
payment of money or delivery of other property
has been. made under this section and granted,
no subsequent appliction to execute the same
decree shall be granted after the expiration of
twelve years from any of the following dates:
"
A comparison of the said two provmons shows that the
phrase ''fresh application" has been substituted for "subsequent application".
This amendment became necessary in
order to make it clear that the application mentioned in s. 48
of the Code is a fresh substantive application and not an
application to revive or continue a substantive application
already pending on the file of th~ court.
1964
1'. Chinna Ven
kunna
256
SUPREME COURT REPORTS
[1964 J
v .
. />. Hangara
The question, therefore, is whether E.P. 58 of 1953 is a
fresh application within the meaning of s. 48 of the Code.
The answer to this question mainly turns upon the question
R . whether the previous application i.e., E.P. 13 of 1939, was
GJU fi
11 d'
.
na y tsposed of by the executmg court.
From the narraSubba Rao J.
tion 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 that 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. 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. 13 of 1939 was
dismissed on December 28, 1948 and not merely clos~d.
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. 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
6 S.C.R.
SUPREME COURT kEPORTS
257
statistical purposes.
In the circumstances we must proceed
on the assumption that the Execution Petition 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
0. XXI, r. 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 r. 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 orders as it thinks fit. Under r. 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 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 0. XXI, r. 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 r. 57 when it could
not proceed with the execution because of the default of
the decree-holder. It is said that in this case the dccreeholders could not proceed with the execution in view of the
stay ord~r 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 0. XXI, r. 57 of the Code, we find it difficult to
attribute something to the court which it never intended to
31-c;9 ~.c. ;7
1964
P. Chinna Venkanna
Y.
P. Bangara Raju
Subb• Rao J_
258
SUPREME COURT REPORTS
[1g64J
1964
do.
It is true courts have condemned the practice of exe-
~. Chinna Ven- cuting courts using expressions like "closed", "closed for
kanna
statistical pur:;ioses", "struck off", "recorded" etc., and they
v.
I
P. Bangara Raju a so pointed out that there was no provision in the Code of
S•bba Rao /.
Civil Procedure for making such orders: see Biswa Sonan
Chunder Gossyamy v. Binanda Chunder Dibingar Adhikar
Gossyamy ('); Vadlamannati Damodara Rao v. The Official
Receiver, Kistna( 2 ); Moidin Kutty v. Doraiswami(3).
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 i.TJ the other, it would mean
what it 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 :nade, 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.
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.
Even so, it is contended that E.P. No. 58 of 1953 is a
fresh application. Learned counsel compared the recitals in
E.P. 13 of 1939 and E.P. 58 of 1953 and pointed out that
all the respondents in the former execution petition are not
respondents in the
pre5ent execution petition; that legal
representatives of some of the defendnts are added to th•
present execution petition; that the decree-holders did not
(1) (188,) I.L.R. 10 Cnl. 416, 422.
(') I.L.R. 1946 Mad. ,27.
(') A.I.R.1952 Mad. 51.
6 S.C.R.
SUPREME COURT '.REPORTS
259
:;;eek to proceed against all the properties against which they
1'64
sought to proceed in the former execution petition; and that p, Chinna v.,..
one of the reliefs, namely, to attach the amount deposited in
kanna
court, asked for in the present execution petition is a com- r. a.n;,ra R•I•
pletely new one and that, therefore, the present execution
Jub•a R"" J.
petition is, both in form and in particulars, completely a
different one. But a oomparison of the two execution petitions shows that the parties are the same: the new parties
added in the present execution petition are either the legal
representatives of the deceased parties or the representative
of a party who has become insolvent. In the present execution petition the decree-holders are not proceeding against
any property against which they did not seek to proceed in
the earlier proceeding; they only omitted some of the properties.
The decree-holders canno.t be compelled to proceed against all the properties against which at one time
they sought to proceed.
The relief by way of atta(jiment
of the amount deposited in court had been asked for by the
decree-holders by a separate petition, namely, E.A. No. 143
·of 1962, and that was dismissed and, therefore, nothing
turns upon it.
The result is, therefore, in substance under
both the execution petitions the decree-holders seek to
iJroceed against the same parties and against the same
properties.
The law on the subject is well-settled.
In Bandlm Sin~h
v. Kayastha Trading Bank(' J, where a decree-holder included
new items of property for attachment in an application for
execution of his decree filed 12 years after the date of the
decree, it was held that the application to attach fresh property was a fresh application within the meaning of s. 48 of
the Code and, therefore, having been made more than 12
years after the date of the decree, could not be entertained.
In Sri Raja D. K.
Venkata Lingama Nayanim v. Raja
Inuganti
Rajagopala
Venkata
Narasimha
Rayanim(').
where an application was made for amending a pending
execution petition with a view to attach another property not
included in the pending application, the court held that the
application for amendment could not be allowed, as it was
111ade beyond the period of 12 years from the date of the
decree.
In lppagunta Lakshminarasinga Rao v. lppaguntl!
(') (1931) J.L.R. 53 All. 419.
(') l.L.R. 1947 Mad. 52 5
SUPREME COURT REPORTS
11#
Balasubrahmanyam ('), where the execution petition filed
c-- ,.,,.. beyond 12 years of the decree asked for a new relief not
.......
asked for in the earlier execution petition, it was held that
.. ,,;,,. R•iu the subsequent application, having been filed beyond 12
.ti.th ._ /
years, was hit by s. 48 of the Code.
In Gajana11d Sah v.
·
Dayanand thakur( 2), the decree-holder was not allowed to
substitute a new property different from
the one against
which he wished to proceed in the earlier application on the
ground that 1 Z years had expired
from the date of the
passing of the decree.
The result of the decisions may be summarized thus. An
application made after 12 years from the date of the decree
would be a fresh application within the meaning of s. 48
of the Code of Civil Procedure, if the previous application
was finally disposed of. It would also be a fresh appliclltion
if it asked for a relief against parties or properties different
from those proceeded
against in the previous execution
petition or asked for a relief substantially different from that
asked for in the earlier petition.
In this case, as we have pointed out, the parties are subitantially the same in both the proceedings, and the decreeholders are only proceeding, against properties included in the
previous application. It cannot, therefore, be treated as a
fresh application within the meaning of s. 48 of the Code.
lt is only an application to continue E.P. No. 13 of 1939
which is pending on the file of the executing court.
That apart, the decree-holders filed E.A. No. 142 of 1952
in E.P. No. 13 of 1939 expressly asking for the reopening of
the said execution petition and for proceeding with it.
As
we have held
that the earlier execution petition is still
pending on the file of the court, the executing court will be
well within its rights in proceeding on the basis of the earlier
execution petition even without a new petition.
In the result, we hold that the order of the High Court is
right.
The appeal fails and is dismissed.
There will be no
oraer ~ to cost!.
Appeal dismissed.