ORDER
As per Ex. 55, this Darkhast is withdrawn Cost on D.H. 29-7-1965.
Sd/-
C.J. (S.D.)
The interpretation of the aforesaid order is to decide the fate of the present appeal.
7. After having obtained the permission from the Collector Baroda on 3-1-1970, at stated above, the appellant re-presented the present Darkhast against the same judgment debtors for the same reliefs as he originally prayed in Darkhast No. 21/56. The said Darkhast was filed on 28-1-1971 in the Court of the Civil Judge (S.D.) Baroda and it was numbered as Darkhast No. 4/71. In all respect, the execution application i.e. Darkhast No. 4/71 was identical with the earlier Darkhast No. 21/56, save and except the tact that in the second execution application the latter development which took place pursuant to the High Court order in F.A. No. 100/60 and the further development leading to the permission of the Collector which was granted on 3-1-1970 were mentioned, but the reliefs prayed for in Darkhast No. 4/71 were completely identical with the reliefs prayed for in the previous Darkhast No. 21/56.
8. In Special Darkhast No. 4/71 notices were issued to the respondents. Respondent No. 2 contested the proceedings in Darkhast No. 4/71 and filed written objection on 11-8-1977. He raised various objections against the fresh Darkhast filed by the appellant, but amongst other contended that the present darkhast was barred by limitation. It appears that the Executing Court took up the consideration of the issue of limitation in the first instance. The learned Executing Court Judge took the view that the decree for specific performance was sought to be executed by the appellant more that 12 years after the date of the decree i.e. 23-1-1951 and also beyond 12 years from the date of the appellate decree of the Bombay High Court dated 26-11-1956 and hence the present Execution proceedings were barred under Article 136 of the Indian Limitation Act, 1963. A contention was raised before the Executing Court on behalf of the appellant-decree holder that the present Darkhast was, in substance, in continuation of the previous Darkhast No. 21/56 and was sought to revive the proceedings of the previous Darkhast at the stage they were left on account of the impediment in the way of the decree holder in getting effective reliefs from the Executing Court in the previous Darkhast and that the present Darkhast was filed after removal of the said impediment and after the decree-holder had received the necessary permission under the Ceiling Act from the Collector, Baroda. It was, therefore, submitted that as the present darkhast was merely a revival of the earlier darkhast No. 21/56 it could not be said to have been barred by limitation. This contention of the appellant decree-holder was repelled by the learned Executing Court Judge and he took the view that the present execution proceedings were clearly time barred and in that view of the matter he dismissed the darkhast with no order as to costs.
9. The aforesaid order of the Executing Court has been assailed by appellant-decree holder in the present First Appeal. The only contestant, defendant No. 2 though duly served, has not appeared before this Court to contest this appeal I have heard Mr. J.M. Patel, the learned Advocate for the appellant decree-holder. I have also gone through the relevant records pertaining to Special Darkhast No. 4/71 as well as Darkhast No. 21/56. The records pertaining to both the aforesaid Darkhast were ordered to be called for the scrutiny of this Court. For that purpose the appeal was adjourned and to-day it has reached final hearing before me after the relevant records pertaining to the aforesaid two darkhasts have been received by this Court.
10. Mr. Patel, the learned Counsel appearing for the appellant decree-holder raised the following submissions in support of his appeal.
(1) The decree under execution could not be effectively executed by the decree-holder prior to his obtaining the necessary permission from the Collector, Baroda, under the Ceiling Act as held by Raju J. in First Appeal No. 100/60. Under these circumstances, the decree in question became enforceable for the purpose of Article 136 of the Limitation Act, only on 3-1-1970, when the said permission was obtained by the decree holder. Consequently, the execution proceedings could be filed within 12 years from 3-1-1970 as provided by Article 136 of the Limitation Act and hence execution proceeding could not have been treated as time barred.
(2) It was alternatively submitted that, assuming that the decree under execution was enforceable from the date of the said decree or at least from the date of teh High Court appellate decree dated 26-9-1955, which confirmed the trial Court's decree, even then special Darkhast No. 21/56 was duly filed in time for execution of the said decree and the said Darkhast was never disposed of on merits when it stood withdrawn on 29-7-1965. Consequently the present darkhast filed after the removal of the impediment in the way of the decree holder ought to have been treated as in continuation of the previous darkhast and a mere revival of it. Hence, there can never be any bar of limitation against the subsequent Darkhast.
11. So far as the first submission of Mr. Patel is concerned, it must be stated that it is wholly devoid of any substance. The present Darkhast No. 4/71 was filed on 28-1-1971. By that time the Indian Limitation Act, 1963 had already operated. Under the present Limitation Act the only relevant article which could apply is Article 136. It provides for execution of any decree or order of any civil Court within 12 years from the time when the decree or order becomes enforceable. In order to judge whether the decree in question was enforceable by itself or whether it was a conditional decree the enforceability of which depended upon fulfilment of some previous conditions, regard must be had to the clear terms of the decree. A mere look at the decree under execution shows that on 28-2-1951 or even at the time when it was confirmed in 1956, there existed no condition incorporated in the decree which made it conditional decree, but, it was a decree simplicitor for specific performance of the suit agreement under which the suit agricultural lands and the suit houses and vada were ordered to be conveyed to the appellant by execution of regular sale deed by the judgment debtor in favour of the decree holder. It also provided for handing over of the possession of the suit properties to the decree holder. Thus, it was a usual decree for specific performance. The terms of decree no where provide that the decree holder had to fulfil any prior condition before he could apply for the execution of the said decree. If because of the some external factors de hors the decree he could not obtain any effective relief from the Executing Court in the absence of permission being obtained under the Ceiling Act, it cannot be said that the decree by itself had become a conditional decree. In Yeshwant Deorao v. Walchand Ramchand : [1950]1SCR852 , a question arose before the Supreme Court as to whether a decree can be treated as a conditional decree which would become executable only when such a condition was fulfilled. Under the decree which came up for consideration before the Supreme Court in the aforesaid decision a provision was made that the decree holder should pay the deficit Court-fees on the decretal amount before the execution of the decree. The decree holder paid the deficit amount of court-fees after some time and sought its execution. He was met with the contention of limitation by the judgment debtor who contended that the decree on its own was executable from the inception and the payment of the Court fees on the amount found due was entirely in the power of the decree-holder and there was nothing to prevent him from paying it then and there. The contention of the decree-holder was that the decree in question was a conditional decree which was not executable without fulfilling the condition. The Supreme Court held that the decree under consideration before Their Lordship was not a conditional one in the sense that some extraneous event was to happen on the fulfilment of which alone it could be executed. The payment of Court fees on the amount found due was entirely in the power of the decree-holder and there was nothing to prevent him from paying it then and there; it was a decree capable of execution from the very date it was passed. Thus, it was clearly laid down by the Supreme Court that before a decree can be considered to be conditional decree it must incorporate a condition making it executable only on the happening of some extraneous event on the fulfilment of which alone it can be executed. If such a condition was in the decree, it would be certainly a conditional decree. In the present case also if the decree in question itself had provided that the decree holder shall be entitled to execute the decree on receipt of the permission from the Collector under the Ceiling Act, the position would have been different and it could not have implied that so long that condition was not fulfilled the decree could not have become executable, but unfortunately for the appellant no such condition is incorporated in the decree itself. The clear recitals in the decree, when read as a whole, make it immediately executable. Only because the decree holder is not able to obtain effective relief from the Court till he removes certain impediments in his way, when the decree itself is oblivious of these impediments and makes no mention of them, they cannot make the decree a conditional decree, so as to enable the decree-holder to earn the benefit of a situation which would emerge in case of a real conditional decree which would became executable only when the condition precedent to its execution is fulfilled. In Amar Nath and Ors. v. Mul Raj (deceased) represented by his legal representatives and Ors. , a Full Bench of Punjab and Haryana High Court considered the question whether the execution appeal pending before the Division Bench was within time or not and whether there was sufficient cause or not, when the said Letters Patent Appeal was filed without being accompanied by three sets of spare paper books and time was allowed to file the same. Thereafter the Division Bench consisting of R.S. Naula C.J. and Munila Varma, J. decided the question arising in the L.P.A. on its merits. Before the Division Bench of the Punjab & Haryana High Court the question was debated as to whether an execution petition filed on 21-1-1966 before the executing Court was within the period limitation as prescribed by Article 136 of the Limitation Act. An award decree was passed in Amar Nath's case (Supra) on 9-4-1951. By the said decree certain holder and the judgment-debtors. The said award decree was challenged before the High Court under Section 39(1)(vi) of the Arbitration Act and it was contended that the trial Court had wrongly refused to set aside the award. That appeal was dismissed on 17-9-1953. Thereafter in the year 1957 the decree holder-appellants made application under Sections 151 and 152 of the Code of Civil Procedure to the trial Court for the amendment of the decree. It was declined on 2-12-1957. Aggrieved by the said order, the decree holder came to the High Court in revision, which was allowed and it was directed that the decree be amended so as to entitle the decree holder to recover Rs. 16,860/- in place of Rs. 12,435/- from the contesting defendants. Thereafter the appellant applied for the execution of the amended decree on January 21, 1966. The contesting respondents raised objections one of which was about the bar of limitation, stating that 12 years had elapsed from the date of the decree as the decree was passed in 1951 and was confirmed on 17-9-1953. The executing Court upheld this contention of the judgment debtors and dismissed the execution application on the ground of the limitation. Against that an appeal was filed by the appellants decree-holders before the High Court of Punjab and Haryana. The learned single Judge, who heard the appeal in the first instance came to the conclusion that the decree so far as it related to possession of immovable property was barred by time, having been filed beyond 12 years from the date of the decree and as such, he affirmed the finding of the executing Court respecting that part of the decree. He however, found that some of the decree-holder appellants were minor and in view of the provisions contained in Sections 6 and 7 of the Limitation Act read with Order 32 Rule 6 of C.P.C, no valid discharge could be given on their behalf respecting the decree relating to the recovery of money. Therefore, he reversed the finding of the executing Court on the aforesaid issue so far as it related to the decree for recovery of money and held that the execution application with regard to recovery of the decretal amount was within time. Thus the learned single Judge allowed the appeal partly. Aggrieved by the judgment of the learned single Judge, two cross L.P. As. were preferred by the respective parties before the Division Bench-one by the decree-holders and the other by the judgment debtors. Initially in the said L.P. As. the question of competence of the said appeals was raised on the basis of rule of the High Court which provided that L.P.A. was required to be accompanied by certain paper-books. As the said question was involving an important aspect of procedure before the High Court, the matter was referred to the Full Bench and the Full Bench took the view that in entertaining and even admitting the Letters Patent Appeals without being accompanied by three sets of spare paper-books when the appeals were filed and refilling the same with the said three sets of spare paper-books and complete in all respects beyond the expiry of the prescribed period of limitation constitutes sufficient 'cause' for granting extension of the time prescribed for appeal. The aforesaid L.P.A. thereafter came up for consideration on merits before the Division Bench. The decree holder sought to argue before the Division Bench in Amar Nath's case (supra) that in any case the decree obtained by them was not barred by limitation as provided under Article 136 of the Limitation Act as the decree was not executable forthwith, as it had directed that the appellant-decree holders had to pay court-fees on Rs. 12,435/- before its execution. It was, therefore, contended that it is only after the payment of the Court fees by the appellant decree-holders that the decree became enforceable under Article 136 of the Act and hence there was no question of execution proceedings being time barred. Repealing this contention the Division Bench held that the words 'where the decree or order becomes enforceable' occurring in Article 136 of the new Act did not find mention in Article 182 of the old Act or in Section 48 of the C.P.C. The Division Bench was not inclined to accept the contention of the decree holders that the decree became enforceable on payment of the Court fees. The Division Bench was of the opinion that a decree can only be said to be not enforceable when it is incapable of execution on the date when it is passed on account of the very terms of the decree. There must be something inherent in the decree which does not make it enforceable immediately when it is passed and postpones its execution to some contingency which is to happen in future and which is beyond the control of the decree-holder. There is a long line of cases reported in Ram Narayan v. Maharaja Narain AIR 1940, Lah. 337; Laxman Minaji v. Narayan Appaya AIR 1961 Mys. 172; Devi Kant Mishra v. Kant Pathak AIR 1958, Clause 1; China Venkatappa v. Peda Venkatappa AIR 1943 Mad. 650 and Appa Rao v. Veeraju AIR 1962 And. Pra. 385, wherein it has been ruled that limitation for execution of decree commences from the date of the decree and neither non-payment of court-fee nor non-supply of stamp paper for the purpose of drawing up of the decree can arrest the running of limitation. It was further held by the Division Bench in Amur Nath's case (supra) that the Supreme Court decision in Yeshwant Deorao v. Walchand Ramchand : [1950]1SCR852 , concludes the matter, wherein it has been held that where a decree provides that the decree holder should pay the deficit Court-fees on the decretal amount before its execution the decree is not a conditional one in the sense that some extraneous event is to happen on the fulfilment of which alone it can be executed, the payment of Court fees on the amount found due is entirely in the power of the decree-holder and there is nothing to prevent him from paying it then and there, and, thus, it is decree capable of execution from the very date it is passed. It was further held that the decree passed in favour of the appellant in Amar Nath's case (supra) was not a conditional decree and it could not be treated as incapable of being executed moment it was passed. The aforesaid decision of the Punjab and Harayana High Court clearly shows that before a decree could be treated as a conditional decree within Article 136 of the Act, it must be shown that on account of the very terms of the said decree it was not enforceable immediately and it was to become enforceable depending upon the happening of some future contingency, but the said contingency ought to have been provided by for the very terms of the decree and not de hors it. These observations of the learned Judges of the Punjab and Harayana High Court are based on the aforesaid Supreme Court judgement in Yeshwant Deorao v. Walchand Ramchand. I fully concur with the said reasoning adopted by the learned Judges of the Division Bench of the Punjab and Haryana High Court. Applying the said ratio to the facts of the present case, therefore, it must be held that the decree in the present case cannot, on the very terms of the decree, be held to be one postponing its execution subject to some contingency which is to happen in future. It was an executable decree from its very inception. If there were some impediments in the way of the decree-holder on account of certain legislation, it cannot be said that the decree itself became a conditional one.
12. Mr. Patel with emphasis urged that the decision of Raju J. in First Appeal No. 100/60 decided on 11-1-1964 made the decree a conditional one when it was held by the learned Judge that there was Ceiling Act in the way of the appellant in getting the decree executed and that he was to obtain the permission from the Collector before the execution of the decree. In order to appreciate the aforesaid submission of Mr. Patel it must be kept in view that Raju J. was dealing with a Second Appeal arising out of Execution proceedings pertaining to the decree in question. He was not sitting in appeal against the decree itself. Consequently, as an executing Court the learned Judge could not have altered the decree or could not have inserted any condition thereon. The decree under execution had become final years back as per the decision of the appellate Court i.e. High Court of Bombay (Coram, Bavdekar J.) in Appeal No. 640/1951 decided on 26-9-1955. Consequently, it could not be urged that the decree under execution became a conditional decree in view of the judgment of this Court (Raju J.) In this view of the matter it must be held that the decree under execution was not a conditional decree and that it was executable by itself in its inception and did not require fulfilment of any condition precedent or happening of any contingency before its execution. Consequently the first submission of Mr. Patel has got to be rejected.
13. That takes me to the second contention of Mr. Patel. He submitted in the alternative that even assuming that the decree under execution was not a conditional decree and was executable forthwith and that it did not incorporate any terms which made it a conditional decree, even then within a span of six months or so, since the passing of the appellate decree on 26-9-55 the appellant decree holder had already filed Special Darkhast No. 21/56 on 5-4-1956 before the Executing Court; that the said Darkhast was perfectly within limitation; that the said Darkhast had proceeded on merits up to a stage and the Executing Court by its judgment and order dated 10-4-1957 decided two preliminary issues viz. issues Nos. 1 and 2 and took the view that there was no bar of Ceiling Act so far as the decree holder was concerned. However, fresh evidence was required to be taken to decide as to whether the plaintiff was holding some lands adjoining to such fragments so as to enable him to purchase the lands of judgment-debtor with the aid of the Executing Court. Mr. Patel submitted that the said order of the Executing Court had resulted in two First Appeals being First Appeal No. 619/57 filed by the decree holder which was renumbered as First Appeal No. 92/60, and First Appeal No. 662/57 filed by respondent No. 2-which was renumbered as First Appeal No. 100/60. The said appeals were decided by Raju J. on 11-1-1964-when the decree holder's appeals was dismissed and the judgment debtor's appeal was allowed and it was directed by this Court that the executing Court should give six months' time to the decree-holder to obtain permission of the Collector before taking further steps. Thus according to Mr. Patel appearing for the appellant, the Executing Court had not to pars any effective and final orders on the merits of the execution proceedings, but pursuant to the order of the High Court the proceedings had to await till the permission of the Collector was obtained by the decree-holders, and thereafter only further execution proceedings were to go on. Under these circumstances, the appellant applied to the Collector, Baroda within six months for granting him necessary permission under the Ceiling Act for purchasing the suit lands from the respondents. That application having been lost in the office of the Collector, Baroda, he made second application on 29-7-1965 for the grant of similar permission, and on the very day he applied to the executing Court by purshis Ex. 25 to permit him to withdraw the execution proceedings, but that was a stop-gap arrangement. The appellant had not given up his rights and contentions in the darkhast, but merely his statement was recorded and as the Darkhast could not proceed further in the absence of permission from the Collector in favour of the decree holder to purchase the suit properties, the Darkhast was permitted to be disposed of for statistical purposes and in order to enable the Executing Court to dispose of the Darkhast for statistical purpose, the appellant had given purshis Ex. 25, referred to be me above, and pursuant to the said purshis the executing Court permitted the appellant to withdraw the said Darkhast. Thus, the said order of withdrawal of Darkhast No. 21/56 as passed by the Executing Court on 29-7-1965 was not a final order disposing of the said Darkhast on merits but it was purely for a statistical purpose so that instead of adjourning the Darkhast sine die the Darkhast was consigned to record room for the time being. Thus, in substance, the Darkhast remained in abeyance as no effective order could be passed thereon till the permission of the Collector was obtained as is made very clear by the judgment in First Appeal No. 100/60 decided on 11-1-1968. It was further contended by Mr. Patel that when the decree holder obtained the said permission from the Collector on 3-1-1970, he promptly approached the Executing Court on 28-1-1971 by way of present Darkhast No. 4/71 for proceeding further in the matter of execution of the decree in his favour and for obtaining the same reliefs which he had sought in Darkhast No. 21/56. Thus, according to Mr. Patel the present Darkhast was merely a continuation of the earlier Darkhast proceedings and hence it could not be said to be a fresh Darkhast which would attract any bar of limitation. Mr. Patel submitted that the earlier darkhast cannot be said to be finally and judicially disposed of on merits and hence the second Darkhast which was filed by the appellant after removal of the impediments in his way and as per the directions of this Court in Second Appeal No. 100/60 decided by Raju J. on 11-1-1964 was a mere revival of the earlier darkhast. It was therefore submitted that the learned Executing Court Judge was entirely in error when he dismissed of the present Darkhast of the appellant as time barred.
14. In order to support the aforesaid submission he invited my attention to the various judgments. In Sankara Kurukkal Narayana Kurukkal v. Edikal Pervathi and Ors. A.I.R. 1953 Tra. Co. 359, a Division Bench of the Tranvancore High Court considered the question as to when the earlier execution proceedings can be deemed to be pending. In the case before the Travancore High Court, the earlier execution proceedings were dismissed without notice to teh decree holder and only for statistical purpose. It was, therefore, held that the posting of the case was made without notice to the decree-holders and that therefore, the dismissal of the execution application was not a judicial disposal. The execution application must be deemed to be still pending and the application should be taken to be one in continuation of that application. In a latter judgment of the Travancore High Court in Boothathan Nadar Appaya Nadar v. Savarimuthu nadar Deniel Badar A.I.R. 1955 Travancore 109 a question arose as to whether the earlier execution proceedings were in continuation thereof. The facts before the Travancore High Court in this judgment were that in an execution petition praying for the arrest of the judgment debtor, for sale of the properties charged under the decree and for attachment and sale of judgment-debtor's properties, the judgment-debtor was actually arrested but the amin surrendered the warrant on the ground that the decree holder had given the judgment-debtor five days to pay the amount and after three days the Court passed an order 'struck off with costs'. Under the aforesaid circumstances it was held that the expression 'struck off was not a correct one if thereby the execution petition was intended to be dismissed, and as there was a prayer for sale of the property charged under the decree which was not dealt with by the Court at all, the proper procedure would have been to post the case for further steps relating to the prayers not yet carried out and so far as that prayer was not dealt with by the Court, it could not be held that the disposal was judicial. The execution petition had to be deemed pending so that the next execution petition filed beyond a period of six years from the date of dismissal had only to be treated as one to remind the Court to take the further steps prayed for already and consequently the execution was not barred by limitation.
15. The same High Court had also an occasion to consider a similar question once again in Hajee Mohommed Metharu v. Josheph Achamma A.I.R. 1957 Travancore-Cochin, 92. The question before the Division Bench in that case was as to whether the order passed by exactly using the words 'dismissed', 'rejected' and 'struck off' without judicial disposal of the execution petition has to be deemed as keeping the proceedings pending even after the order capable of being revived or continued by the decree-holder at a later stage and whether it meant merely to adjourn the execution petition sine die. While answering the said question in favour of the decree holder it was observed by the Division Bench of the Travancore High Court in the above case that the effect of orders such as 'dismissed', 'rejected' and 'struck off', passed for the purpose of statistics and not by reason of the decree-holder's default or of the judicial disposal of the execution petition, is merely to adjourn the execution petition so dismissed, rejected or struck off which has to be deemed as pending even after the order and capable of being revived or continued by the decree-holder at a later stage. Whether the order is one having only the effect of adjourning the execution proceedings sine die or whether it is one judicially disposing of the execution petition, has to be ascertained from the facts and circumstances of each case. The facts in this case were that in execution of a decree a sale was affected in favour of the decree holder with the permission of the Court but the said auction sale was set aside and the case was posted to 19-1-1115 for the decree holder to take further steps, on 19-1-1115 the decree holder filed a petition stating that he was filing an appeal against the order setting aside the sale and praying that the execution petition might therefore, be struck off keeping the attachment alive and permitting him to take further steps after the decision of the appeal. Thereupon the Court passed an order on the same day on the execution petition reading 'dismissed, attachment retained'. The said order of the execution court was interpreted by the Division Bench of the Travancore High Court in the aforesaid decision to mean to adjourn the execution proceedings sine die so that the decree holder might prosecute the appeal and obviate the necessity to continue the execution proceedings and need continue the proceedings only in case the appeal went against him. It was not on account of the decree-holder's default that the Court dismissed the petition. It did so only for purposes of statistics, because the execution petition had to be adjourned sine die on account of the appeal against the order setting aside the previous auction sale. Attachment therefore cannot be deemed to have ceased with the order and must be held to be still subsisting.
16. A similar question also arose before the Lahore High Court in Vishan Das v. L. Chandi Ram A.I.R. (34) 1974 Lahore 36. A learned single Judge of the said Court took the view that the words 'consigned to record room' in the order did not bring the application to an end. The facts before the Lahore High Court in the above case were that on receipt of order under Section 25 of Punjab Relief of Indebtedness Act, execution court stayed the execution of the decree. The parties could not come to an agreement before the Board and a certificate was eventually granted by the Board as a result of which the decree holder could not have applied for execution for about nine years. On receipt of this certificate the executing Court passed an order consigning the execution to record room as being unsatisfied. The question was whether the aforesaid order amounted to an effective disposal of the execution proceedings so as to bar a fresh application for execution filed beyond a period of three years from the date of the earlier disposal of the darkhast. It was held by Abdul Rahman J. in the aforesaid decision that the words 'consigned to record room' in the order did not bring the application to an end and the order passed by the Court, in absence of any provision of law either in the Code of Civil Procedure or in the Punjab Relief of Indebtedness Act, under which the Court could have dismissed the decree holder's application, could only be construed as an order of suspension or of stay and not of dismissal and the subsequent application for execution must therefore, be treated as an application for continuation of the proceedings held on the previous application and not a fresh application for execution. For arriving at the aforesaid conclusion, the learned single Judge relied upon A.I.R. 1943 Lah. 176. (F.B.).
17. The Madras High Court in Muthuveeranna Chettiar v. Muthuvenkararama Chettiar and Ors. : AIR1951Mad711 had also an occasion to consider this question. A learned Judge of the said High Court Panchapakesa Ayyar J. held that if an execution petition is 'struck off', 'lodged' 'recorded' or 'closed' while yet the reliefs prayed for, or some of them, remain undisposed of, without being covered by final orders either granting or refusing those reliefs, then the petition will continue to be on the file of the court despite its being 'struck off' 'lodged' 'recorded' or 'closed'. In that case the learned Judge of the Madras High Court held that in a decree for maintenance charged on immovable property, a receiver should generally be appointed in suitable cases to realise the dues of the decree holder. But the execution proceedings could be terminated validly by the Court (as apart from the consent of parties) only by waiting till the Receiver had collected enough to pay the amount claimed and made the reports required (like the desirability of filing suits), as a receiver is an officer of the Court. The mere appointment of the decree-holder as a receiver by itself would not dispose of the relief asked for. It was further held by the learned Judge that it is the clear duty of a Court to dispose of an execution proceeding really, effectively and validly in one of the ways known to law. It should not close it for statistical purposes in its anxiety for quick disposal. The law is there to give redress and relief and not for nominal and quick disposal giving no relief or redress. It was therefore, held that the execution proceeding was improperly closed for statistical or other purposes and in effect continued undisposed.
18. A Division Bench of Assam High Court in Ram Dahin Bahni Prasad Bania and Ram Dain Bahin Prasad Bania Firm v. Raghunandan Nunia and Anr. A.I.R. 1952 Assam 172 has laid down the test for determination whether an execution proceeding can be laid to have been effectively terminated. In the case before the High Court of Assam the facts were that at an earlier stage the execution was terminated by the executing Court by holding that the case was very old and that the judgment debtor had filed an application for the stay of execution till the period of appeal. As the case was very old it was dismissed. While holding that this dismissal was for statistical purposes, the Division Bench of Assam High Court held that no hard and fast rule may be laid down for determining whether an order is final or otherwise, and the question whether an execution is pending or has been terminated by a final order, should depend upon an interpretation of the order and the inference to be drawn as to the Court's intention. The intention of the Judge in that case was to stay the proceeding to enable the judgement-debtor to appeal. Suspension of the execution was the main purpose. The fact that, the execution was old, influenced the use of the word dismissed with an eye to possible statistical advantage. The dismissal of the execution application and the use of the word 'dismissed' were not justified in law. Where an application is stayed or intended to be stayed without any final determination in the proceeding, then notwithstanding that it is struck off or dismissed, it ought to be treated as pending and in suspense and, therefore, capable of revival. It was further held that the previous execution case must be treated as pending and in a state of suspended animation, it not having been finally disposed of by a judicial order. While arriving at the aforesaid conclusion the Division Bench placed reliance on the judgments of the various High Courts.
19. A single Judge of the Madhya Pradesh High Court in Umrao Khan Akbar Khan v. Wheed Khan Abdul Majeed : AIR1960MP388 , had also an occasion to consider a similar question. In the above case before the Madhya Pradesh High Court, the appellate Court had granted stay of the execution proceedings after the sale had taken place in these proceedings. In the meantime the executing court dismissed the appeal. An appeal was preferred by the judgment-debtor to the High Court of Madhya Pradesh, but it was dismissed. Thereafter another application for execution was filed. The question before the Madhya Pradesh High Court was whether this second application was within time. The learned single Judge held that subsequent execution praying for confirmation of sale and proceeding further with teh previous execution being one for revival and continuation cannot be barred by any length of time. It was also observed that the previous execution proceedings were dismissed for default only for administrative reason and in the eye of law the proceedings were suspended in view of the stay order of the appellate Court. Hence the execution must be deemed to be pending. It was further held that in reality where an execution is suspended for no default of the decree-holder, it remains pending and can be revived on an application by the decree-holder without being hindered by any rule of limitation. It is not barred either under Article 182(5) nor Article 181. But the Court has to see cautiously whether the same relief is claimed and it is the continuity of the suspended execution from the stage of its suspension which is prayed or that a new relief or new mode of execution is sought. In the latter case, it will be a fresh application even though it may be styled as an application for revival. On the contrary if the application is merely to call the attention of the Court that it has to continue the proceedings which had been suspended, it is immaterial that it is drawn on a printed form as if it were a fresh application for execution. It is the susbtance of the application on which depends the legal effect.
20. The Bombay High Court had considered the present question in Chamaya Rachaya v. Iraya Sangava Hiremath : AIR1931Bom492 . The Division Bench consisting of Patkar and Broomfield JJ. held that if execution of a decree is ordered, but owing to some interruption not attributable to the decree-holder himself the order for execution cannot be carried out, and subsequently on the removal of the interruption the decree-holder applies to carry out the previous order for execution, such an application is not a fresh application for execution but merely one to revive or to continue the previous execution proceedings. For arriving at the aforesaid conclusion, the Division Bench relied on 4 Clause : AIR1927All16 . In the case before the Division Bench of the Bombay High Court (Supra), an application No. 232/1912 was made by the decree-holder on Iraya for ascertainment of maintenance and the executing Court, on 4th January 1913 determined the amount at Rs. 10000/-. Certain objections were taken by other widows belonging to the family and the order in the darkhast for execution was set side at their instance on the ground that notice was not given to them of the execution proceedings. Rudrava, daughter of Shankaraya. brought a suit to set aside the order and for an injunction restraining Iraya from executing the order of 4th January 1913. But before she succeeded in getting a decree Iraya had already executed the decree and purchased the property. The decree obtained by Rudrava was therefore, infructuous. She had, therefore, to bring another suit No. 178 of 1918 and eventually she succeeded on 6th July 1922 in getting possession of the property which had gone into the possession of Iraya in execution of the order for maintenance passed by Mr. Kopikar on 4th January 1913. Another darkhast was thereafter filed on 8-7-1924. It was urged on behalf of the respondent decree holder that under these circumstances his second application might be considered to be a revival of the previous application for execution No. 232/1912. Reliance was placed on the decision in Issurree Dassee v. Abdool Khalak 4 Clause 415, where a person obtained a decree and had the property attached and sold in execution and the execution proceedings were struck off the file and the judgment debtor obtained an order setting aside the sale and for a refund of the sale proceeds, and thereupon the decree-holder again applied to execute the decree, it was held that such an application was in substance one simple to continue the proceedings on the first application for execution and therefore, the right to execute the decree was not barred by the law of limitation. The Bombay High Court in the above judgment in Chamava Rachaya's case, took the view that if the execution of a decree is ordered, but owing to some interruption not attributed to the decree-holder himself the order for execution cannot be carried out, and subsequently on the removal of the interruption the decree-holder applies to carry out the previous order for execution, such an application is not a fresh application for execution but merely one to revive or to continue the previous execution proceedings. For arriving at the aforesaid decision the Division Bench of the Bombay High Court placed reliance amongst others, on 7 Bom. L.R. 819. In the earlier judgment of the Bombay High in Mahomed Issoofsaheb and Anr. v. Bashetappa bin Takappa and Anr. VII B.L.R. 819, the Division Bench consisting of Sir Lawrence Jenkins K.C.I.E. Chief Justice and Mr. Justice Aston, examined the question when a subsequent application continues the previous proceedings and took the view that the Courts looks at the substance of the matter, and if it finds that the proceeding before it can only be regarded with justice to the parties as a continuation of the original application which has never come to an end, then instead of investigating any question of limitation in holds that it is not a fresh application, but a continuation of the original application and so within time. In the same volume there is a judgment of the Privy Council in Shaikh Kumar-ud-din Ahmed v. Jawahir Lal and C, VII B.L.R. 433 wherein the Privy Council has held that when the previous proceedings were not effectively disposed off, any subsequent applications were in continuation as well as in the form of an application to revive and carry through a pending execution, suspended by no act or default of the decree holder and not an application to initiate a new one. The facts in this case were that on 11-4-1883, a decree upon a mortgage bond was passed and on the 29-8-1885 the decree holder applied for execution, but the application was struck off the list by consent on the 5th January 1886. On 24-8-1888 a second application for the execution was made under which an order was made on 15-12-1888 that the execution should proceed. On 29-11-1889 an order was made to the effect that the property to be sold being ancestral, the case should be struck off the file and the paper be transferred to the Court of the Collector for completion of the sale proceedings. On 23-12-1889, the decree holder not having made the deposit, it was ordered that in default of prosecution on the part of the decree holder the record be not sent to the Collector's Court for taking the sale proceedings. While these execution proceedings were pending, on 15-2-1889, an appeal was brought in the High Court against the order dated 18-8-88 and the High Court on 7-1-1890 allowed the appeal. On a further appeal to the Privy Council, the decision of the High Court was reversed by an order in Council dated 12-12-1894. Then, on 23-11-1897 a third application was made asking that the sums due by virtue of the decree be realized by sale of the mortgaged property and the execution case instituted on 24-8-1888 may be revived and sent to the Collector's Court. This application was objected to on the ground that it was barred by limitation was objected to on the ground that it was barred by limitation. It was held that the execution proceedings commenced by the petition of the 24th August 1888 were never finally disposed of and that the application then under consideration was in substance, as well as in form, an application to revive and carry through a pending execution, suspended by no act or default of the decree-holder, and not an application to initiate a new one.
21. In view of this settled legal position, it is obvious that in the present case also the execution application (Special Darkhast No. 21/56) was not effectively disposed of and there was no judicial disposal of the rival contentions of the parties in the said execution proceedings, when the executing Court directed the execution proceedings to be withdrawn on the basis of purshis, Ex. 55, filed by the appellant, pursis Ex. 55, has itself stated that as per the decision of this Court he had first to obtain the permission of the Collector under the Ceiling Act and then he could file the execution application. In that view of the matter he prayed to the Executing Court to permit him to withdraw his darkhast and the said prayer was granted. The said order passed by the executing Court on 29-7-1965 cannot be treated by any stretch of imagination, to be a judicial disposal of the previous proceedings or final determination of the rival contentions of the parties in the execution proceedings. Thus the said order merely remains an order disposing of the darkhast for statistical purposes so that the said Darkhast may not unnecessarily linger on the file of the Court when the decree-holder had not obtained the permission of the Collector which would enable him to effectively proceed with the execution proceedings further on as directed by this Court (Coram, Raju J.) in F.A. No. 100 of 1960. Thus, the order passed by the Executing Court permitting the appellant to withdraw darkhast No. 21/56 when read in light of the decision of this Court (Coram, Raju J.) in F.A. No. 100/60, on 11-1-1964 it must be held that the Executing Court had not effectively and judicially disposed of the Darkhast on merits, but in substance it was disposed of for statistical purposes and really speaking the Darkhast remained in a state of suspended animation. In this view of the matter, when the decree-holder obtained the requisite permission of the Collector and when he filed the present darkhast No. 4/71 praying for identical reliefs against the same persons, it must be held that Darkhast No. 4/71 was not a fresh Darkhast and was a mere continuation of the earlier darkhast which was not effectively disposed of by the executing Court till then and that it was merely re-seeking the reliefs prayed for in the previous execution proceedings. In that view of the matter it cannot be said that Darkhast No. 4/71 was a fresh Darkhast which would attract the bar of limitation as held by the executing Court. The second submission of Mr. Patel, therefore, has got to be upheld. It must be held that second Darkhast No. 4/71 was not barred by limitation under Article 136 of the Limitation Act, but was a reminder to the Executing Court to proceed further with the execution case which was earlier filed by the decree-holder by way of Darkhast No. 21/56.
22. Under these circumstances, this First Appeal will have to be allowed. The judgment and order passed by the learned Executing Court Judge on 12-10-1973 dismissing Special Darkhast No. 4/71 as barred by limitation will have to be set aside and the said Darkhast will now be remanded to the Executing Court for fresh disposal on merits. It must be stated at this juncture that as Darkhast No. 4/71 is a revival of Darkhast No. 21/56, the executing Court will have to decide the darkhast in the light of the decisions of this Court by Raju J. in Appeal No. 92/60 as well as Appeal No. 100/60 and also in the light of the contentions which have been raised by the respondents-judgment debtors pursuant to their objections in the previous darkhast as well as by Ex. 9 in the present Darkhast. The learned Judge is, therefore, directed to dispose of the Darkhast in accordance with law, in the light of the observations made hereinabove.
23. In the result, the present First Appeal is accordingly allowed. The order passed by the Executing Court in Special Darkhast No. 4/71 on 12-10-1973 is set aside and the Executing Court is directed to restore the Darkhast on its file in its original number and to dispose it off in accordance with law and in light of the aforesaid observations. As the respondents are not represented, there shall be no order as to costs of this appeal. Order accordingly.