Pentapati Chinna Venkanna and Ors vs Pentapati Bengararaju and Ors

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 690 of 1962

Decision Date: 20 January 1964

Coram: J.R. Mudholkar, Subbarao K, Subba Rao J

In the case titled Pentapati Chinna Venkanna and Others versus Pentapati Bengararaju and Others, the judgment was delivered on 20 January 1964 by Justice J. R. Mudholkar, who sat together with Justice K. Subbarao. The citation of the decision appears as 1964 AIR 1454 and 1964 SCR (6) 251. The matter concerned the provisions of section 48 of the Code of Civil Procedure, 1908, relating to execution petitions and the meaning of the term “closed”. The decree holders had originally filed an execution petition identified as E.P. No. 13/1939 to enforce a decree. The execution proceeding was stayed by an order of the High Court, after which the executing court entered an order stating that the execution petition was “closed”. On 21 January 1952, the decree holders applied to have E.P. No. 13/1939 reopened and to continue with the execution of the decree. The Subordinate Judge, acting as the executing court, held that the earlier petition had merely been “closed” and directed the decree holders to file a fresh execution petition.

Subsequently, on 11 October 1952, the decree holders filed a new petition, E.P. No. 58/53, seeking to continue the proceedings that had been pending in E.P. No. 13/1939. The judgment debtors responded with a counter‑affidavit in which they contended, among other points, that the decree to be executed had been passed on 22 September 1938 and that E.P. No. 13/1939 had been dismissed on 28 December 1948. They argued that because the present application was filed more than twelve years after the date of the decree, it was barred by section 48 of the Code. The Subordinate Judge concluded that although the decree holders were entitled to continue the earlier execution petition, the filing of E.P. No. 58/53 amounted to a fresh application because it differed in substance from the original petition. On appeal, the High Court held that the order “closed” in E.P. No. 13/1939 was only a statistical notation and that the original execution petition remained pending, thereby allowing the decree holders to proceed with that petition. The principal issue for determination before the Supreme Court was whether E.P. No. 58/53 constituted a fresh application within the meaning of section 48 of the Code of Civil Procedure.

The Court observed that while courts have criticized the use of expressions such as “closed”, “closed for statistical purposes”, “struck off”, or “recorded” by executing courts, and have noted that the Code contains no specific provision authorising such terminology, the effect of an order that the petition is “closed” for statistical purposes is not to dismiss the petition finally. The intention behind such an order is to keep the petition pending rather than to terminate it. Whether the order was made without jurisdiction or was otherwise invalid, the legal consequence would be the same: the execution petition would remain on the court’s file. The Court emphasized that the precise language employed by the executing court is secondary to the substance of the order; the Court must ascertain, from the surrounding circumstances, whether the executing court intended to bring the proceedings to an end. In the present matter, the Court determined that the later filing, E.P. No. 58/53, was merely an application to continue the earlier petition, E.P. No. 13/1939, and not a new petition. The Court referred to earlier authorities, including Biswa Sonan Chunder Gossa my v. Binanda Chander Dibingar Adhikar Gossa my (1884) I.L.R. 10 Cal. 416, Vadlamannati Damodara Rao v. Official Receiver, Kistna (1946) I.L.R. Mad. 527 and Moidin Kutty v. Doraiswami (1952) A.I.R. Mad. 51, to support this conclusion. Finally, the Court held that an application filed after a lapse of twelve years from the date of the decree would be treated as a fresh application within the meaning of section 48 of the Code.

The Court observed that, regardless of the terminology employed by the Executing Court, what ultimately mattered was the substantive effect of the order. Whether the order was described as “closed”, “recorded” or any other phrase, the Court must examine the circumstances surrounding its issuance to determine if the intention was to bring the execution proceedings to a final termination. If the intention was not to terminate, the execution petition must be considered as still pending in the Court’s file. Applying this principle to the present matter, the Court held that the later application identified as Execution Petition No. 58/53 was merely a request to continue the earlier Execution Petition No. 13 of 1939, and not a distinct proceeding. The Court referred to earlier authorities, including Biswa Sonan Chunder Gossyamy v. Binanda Chander Dibingar Adhikar Gossyamy (1884) I.L.R. 10 Cal. 416, Vadlamannati Damodara Rao v. Official Receiver, Kistna (I.L.R. 1946 Mad. 527) and Moidin Kutty v. Doraiswami (A.I.R. 1952 Mad. 51), in support of this view. The Court further explained that an application filed after a lapse of twelve years from the date of the original decree would constitute a fresh application within the meaning of section 48 of the Code of Civil Procedure only if the earlier application had been finally disposed of. Likewise, a fresh application would arise if it sought relief against different parties or property, or if the relief sought was substantially different from that previously requested. In the present case, the parties and the property subject to attachment were essentially the same as those involved in Execution Petition No. 13 of 1939. Consequently, the Court concluded that the later petition could not be treated as a fresh application under section 48. The Court supported this conclusion by citing additional precedents, namely Bandhu Singh v. Kayastha Trading Bank (1931) I.L.R. 53 All. 419, Sri Raja D. K. Venkata Lingama Nayanim v. Raja Inuganti Rajagopala Venkata Narasimha Rayanim (I.L.R. [1947] Mad. 525), Ippagunta Lakshminarasinga Rao v. Ippagunta Balasubrahamanyam (A.I.R. 1949 Mad. 251) and Gajanand Sah v. Dayanand Thakur (1942) I.L.R. 21 Pat. 838.

The judgment proceeded to set out the procedural posture of the appeal. It was a civil appeal numbered 690 of 1962, filed against the judgment and order of 5 March 1959 issued by the Andhra Pradesh High Court, which itself had been an appeal against order number 151 of 1955. The appellants were represented by counsel, while the respondent chose not to appear. The appeal was heard on 20 January 1964, and the opinion was delivered by Justice Subba Rao. The appeal raised the question of whether section 48 of the Code of Civil Procedure was applicable to the facts before the Court. The factual background narrated that in 1928 Pentapati Venkataramana instituted Original Suit No. 3 of 1928 before the Subordinate Judge of Visakhapatnam, seeking accounts of dissolved partnerships and the recovery of sums due from twenty‑nine defendants. The Subordinate Judge dismissed the suit on 30 March 1932. Upon appeal, the Madras High Court set aside the decree of the Subordinate Judge, thereby reopening the matter and leading to the subsequent proceedings that formed the subject of the present appeal.

In the first instance, the Subordinate Judge rendered a joint and several decree that favoured both the plaintiffs and defendants numbered twenty‑four to twenty‑seven, ordering the payment of a sum of fifty‑four thousand three hundred and fifty rupees together with interest. Subsequently, on the fifteenth day of February, 1939, the holders of that decree filed an execution petition designated as Execution Petition No. 13 of 1939. In that petition they requested that the decree amount be realised by attaching and selling thirty‑one items of property, each of which was described in a schedule annexed to the petition and identified as Exhibit B‑4. The persons against whom the decree was made, hereinafter referred to as judgment‑debtors, raised an objection to the attachment of certain listed items; however, that objection was dismissed by the court. The judgment‑debtors then appealed the dismissal of their objection by filing Civil Miscellaneous Appeal No. 26 of 1944 before the High Court. While the appeal was pending, the High Court granted an interim stay of Execution Petition No. 13 of 1939. The appeal was ultimately dismissed on the twenty‑sixth day of April, 1945. After the dismissal, when the decree‑holders attempted to move forward with the execution, the judgment‑debtors submitted an application, Execution Application No. 575 of 1945, alleging that the decree had been adjusted and seeking a record of satisfaction of the decree. That application was dismissed on the twelfth day of December, 1945. The judgment‑debtors appealed that dismissal and obtained another interim stay of Execution Petition No. 13 of 1939. On the ninth of September, 1947, the High Court allowed the appeal and remanded the matter to the trial court for determination as to whether any adjustment of the decree, as pleaded by the judgment‑debtors, had actually occurred. Upon remand, the executing court again dismissed the application filed by the judgment‑debtors, prompting them to lodge a further appeal, Civil Miscellaneous Appeal No. 127 of 1948, in the High Court of Madras, where they secured an interim stay of the execution. That interim order was later made absolute on the twenty‑fourth day of November, 1948. Because the execution of the decree remained stayed by the High Court, the executing court entered an order in Execution Petition No. 13 of 1939 stating that the petition was “closed.” The High Court subsequently dismissed Civil Miscellaneous Appeal No. 127 of 1948 on the thirty‑first day of July, 1951.

Following that dismissal, on the twenty‑first day of January, 1952, the decree‑holders filed Execution Application No. 142 of 1952, again in relation to Execution Petition No. 13 of 1939, seeking to reopen the execution petition and to proceed with the execution of the decree. The learned Subordinate Judge, observing that the earlier execution petition had been merely “closed,” directed the decree‑holders to file a regular execution petition. Accordingly, on the eleventh day of October, 1952, the decree‑holders filed Execution Petition No. 58 of 1953 in order to continue the proceedings in Execution Petition No. 13 of 1939, abiding by the order issued in Execution Application No. 142 of 1952 on the fourth day of October, 1952. In this petition the decree‑holders prayed that the properties referenced in the draft proclamation filed in Execution Petition No. 13 of 1939 and subsequently brought to sale be sold so that the money due to the decree‑holders could be realised and the proceeds applied towards discharging the decree‑debt. The judgment‑debtors responded by filing a counter‑affidavit pleading, inter

In the present proceedings the judgment‑debtors contended that the decree to be executed was dated 22 September 1938 and that execution petition E.P. No. 13 of 1939 had been dismissed on 28 December 1948, thereby rendering the current application, filed more than twelve years after the decree, barred by section 48 of the Code. The learned Subordinate Judge, however, observed that although the decree‑holders might have continued the earlier execution petition, the petition filed as E.P. No. 58 of 1953 was a fresh application because it differed materially from the original petition both in form and in the details of the relief claimed. On appeal a division bench of the Andhra Pradesh High Court adopted a contrasting view, holding that E.P. 13 of 1939 had been merely closed for statistical purposes and consequently remained pending, which allowed the decree‑holders to proceed with that original petition. The High Court further noted that the position had not been contested by the counsel appearing for the respondents, and it interpreted this observation to mean that the respondents’ counsel had not challenged the proposition that a petition closed for statistical reasons could still be pursued by the decree‑holders. Accordingly, the High Court remanded the matter to the learned Subordinate Judge for disposal in accordance with law after the judgment‑debtors’ other contentions were considered, which gave rise to the present appeal. Counsel for the appellants then raised two principal points before the Court. First, they argued that the earlier execution petition had been dismissed and therefore was not pending at the time E.P. 58 of 1953 was filed, making the later petition a fresh application within the meaning of section 48 of the Code. Second, they contended that even assuming the earlier petition was merely closed for statistical purposes, the 1953 petition constituted a fresh execution petition because the parties and properties involved differed and the relief sought was distinct. Before addressing these submissions, the Court found it appropriate to examine the operative language of section 48 of the Code, which provides: “(1) Where an application to execute a decree not being a decree granting an injunction 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.” The Court observed that this provision corresponds to paragraphs 3 and 4 of section 230 of the Code of 1882, whose relevant excerpt states: “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 application to execute the same decree shall be granted after the expiration of twelve years from any of the following dates.” A comparison of the two provisions shows that the

The Court observed that the term “fresh application” was introduced in place of the expression “subsequent application” in order to make clear that the application contemplated by section 48 of the Code must be a new substantive filing and not merely an attempt to revive or continue a claim that was already pending before the court. Consequently, the pivotal issue was whether execution petition numbered 58 of 1953 qualified as a fresh application within the meaning of section 48. The answer to that issue depended principally on whether the earlier execution petition, numbered 13 of 1939, had been finally disposed of by the court that was handling the execution. The factual record, as set out earlier, indicated that the earlier petition had been “closed” for statistical purposes. Because the High Court had stayed the execution while an appeal filed by the judgment‑debtors was pending, the decree‑holders were unable to proceed with the execution, and the petition was therefore marked as closed. A question was raised as to whether this closure was merely a statistical notation or amounted to a dismissal, on the ground that the Code of Civil Procedure did not expressly empower a court to close execution proceedings solely for statistical reasons and that, if such an order were made, it should be treated as a dismissal of the petition.

The order dated 28 December 1948 was not placed before the Court, but column 6 of execution petition 58 of 1953 recorded that petition 13 of 1939 had been closed on that date. In a counter‑affidavit filed by one of the judgment‑debtors it was asserted that the earlier petition had been dismissed, not merely closed. After the High Court disposed of the appeal and before filing execution petition 58 of 1953, the decree‑holders filed execution application 142 of 1952 seeking to reopen petition 13 of 1939. The Subordinate Judge hearing that application issued an order stating, “The previous execution petition was merely closed. Petitioner may file a regular execution petition on which proceedings will continue from the stage at which they were left in execution petition 13 of 1939.” This order made clear that the earlier petition had only been closed. The Subordinate Judge must have examined the previous record and, operating under the assumption that the earlier execution petition remained pending, dismissed the present petition on a different ground. The High Court did not contest this factual position and itself described the earlier application as having been closed only for statistical purposes. In view of these circumstances, the Court proceeded on the assumption that execution petition 13 of 1939 had been closed solely for statistical purposes. Counsel for the appellants argued that the Code of Civil Procedure does not authorize an order closing an execution petition for statistical reasons and that such a practice has been condemned by courts.

Rule 17(1) of Order XXI of the Code of Civil Procedure provides that a court may reject an execution application when the requirements of Rules 11 to 14 have not been satisfied. Rule 23 of the same order states that if the judgment‑debtor fails to appear or does not satisfy the court as to why the decree should not be executed, the court shall order the decree to be executed; if the judgment‑debtor raises any objection to the execution, the court shall consider the objection and issue such orders as it deems appropriate. Rule 57 further provides that where property has been attached in execution of a decree but, because of the decree‑holder’s default, the court is unable to proceed with the execution application, the court must either dismiss the application or, for any sufficient reason, adjourn the proceedings to a future date. Relying on these provisions, it was argued that although the power given to the court under Order XXI Rule 23(2) is wide and enables it to make any order it thinks fit, the court is limited to the two alternatives specified in Rule 57 when it is unable to continue the execution owing to the decree‑holder’s default. The argument further asserted that, in the present case, the decree‑holders could not move forward with execution because a stay order issued by the High Court was in force; consequently, the executing court could have either dismissed the execution application or adjourned the matter, and it possessed no jurisdiction to issue an order that merely closed the execution for statistical purposes. It was also contended that an order closing proceedings for statistical purposes is not an order of adjournment, since an adjournment implies that the application remains on the court’s file, whereas the purpose of a closure is to remove the matter from the file, albeit temporarily, and therefore, in substance, such a closure operates as a dismissal. Assuming that the order was issued on the ground of the decree‑holder’s default as defined in Order XXI Rule 57, it is difficult to ascribe to the court an intention that it never possessed, as reflected on page 34‑159, column 3‑C, line 17 of the record. It is well established that courts have condemned the practice of execution courts using terms such as “closed,” “closed for statistical purposes,” “struck off,” or “recorded,” and have noted that the Code of Civil Procedure contains no provision authorising such terminology, as demonstrated in decisions like Biswa Sonan Chunder Gossyamy v. Binanda Chunder Dibingar Adhikar Gossyamy, Vadlamannati Damodara Rao v. The Official Receiver, Kistna, and Moidin Kutty v. Doraiswami. While it is not necessary to express an opinion on whether the procedure is sanctioned by the Code, assuming that the court lacks such power, the issuance of a “closed for statistical purposes” order cannot be equated with a dismissal, because the court’s intention in making an order described as “closed for statistical purposes” is

It was observed that the order in question was not intended to bring the application to a final conclusion but merely to keep it pending. The Court explained that whether the order was issued without jurisdiction or whether it was valid, the legal consequence would be identical: if the order were void it would be ignored, and if it were valid it would operate according to its terms. In either circumstance the execution petition would remain pending on the court’s docket. The Court further stressed that the terminology employed by the executing court is of no consequence; what matters is the substance of the order. Accordingly, the Court must examine the circumstances surrounding the issuance of the order to determine whether the court intended to terminate the execution proceedings finally. If such an intention is absent, the execution proceedings must be deemed to continue pending on the court’s file. Having considered these principles, the Court expressed no hesitation in agreeing with the High Court that Execution Petition 13 of 1939 remains pending before the executing court and that the present application is merely an application to continue that pending petition.

The opposite submission argued that Execution Petition No. 58 of 1953 represents a fresh application. Counsel for that side compared the statements in Execution Petition 13 of 1939 with those in Execution Petition 58 of 1953 and noted several differences: some respondents named in the earlier petition were omitted in the later one; legal representatives of certain defendants had been added; and the decree‑holders did not seek to attach all the properties that were the subject of the earlier petition. Additionally, the later petition sought a new relief, namely the attachment of an amount deposited in court, which was characterised as a completely new claim, leading counsel to claim that the later petition was distinct in both form and particulars. The Court, however, examined the two petitions side by side and found that the parties were essentially the same, the only additions being legal representatives of deceased parties or representatives of insolvent parties. Moreover, the decree‑holders in the later petition did not pursue any property that they had not previously sought to attach; they merely omitted certain properties. The Court held that decree‑holders cannot be compelled to attach every property they once sought to attach. The request for attachment of the amount deposited in court had previously been made in a separate petition, Execution Application No. 143 of 1962, which had been dismissed; consequently, that issue did not affect the present case. In substance, therefore, both execution petitions involve the decree‑holders seeking enforcement against the same parties and the same properties.

In this matter the Court observed that the legal principle involved is well established. The Court referred to the decision in Bandhu Singh v. Kayastha Trading Bank (1), in which the decree‑holder, more than twelve years after the decree was passed, filed an execution application that sought attachment of additional property not mentioned in the earlier petition. The Court in that case held that such a request constituted a fresh application within the meaning of section 48 of the Code of Civil Procedure, and because it was filed after the twelve‑year limitation period, the application could not be entertained. Similarly, the Court cited Sri Raja D. K. Venkata Lingama Nayanim v. Raja Inuganti Rajagopala Venkata Narasimha Rayanim (2), where the petitioner sought to amend a pending execution petition in order to attach another piece of property that had not been included in the original filing. The Court ruled that the amendment could not be permitted because it was made beyond the twelve‑year period prescribed from the date of the decree. The Court also discussed Ippagunta Lakshminarasinga Rao v. Ippagunta (1) (1931) I.L.R. 53 All. 419; (2) I.L.R. 1947 Mad. 525 Balasubrahmanyam (1). In that case the execution petition, filed after the twelve‑year period, asked for a relief that was not sought in the earlier petition. The Court held that the later application was subject to section 48 and therefore could not proceed. In addition, the Court mentioned Gajanand Sah v. Dayanand Thakur (2), where the decree‑holder attempted to substitute a different property from the one originally pursued in the earlier application. The Court again declined to allow the substitution, noting that more than twelve years had elapsed since the decree was passed. From these authorities the Court distilled a concise rule: an application filed after twelve years from the decree date is deemed a fresh application under section 48 of the Code of Civil Procedure if the previous application has been finally disposed of; likewise, it is fresh if it seeks relief against parties or properties that differ from those involved in the earlier execution petition or if it seeks a substantially different relief. Applying that rule to the present facts, the Court noted that the parties in the current and earlier proceedings are substantially the same and that the decree‑holders are seeking to proceed only against properties that were already included in the former application. Consequently, the Court concluded that the present filing does not qualify as a fresh application under section 48. Rather, it is merely an application to continue execution petition number 13 of 1939, which remains pending on the records of the executing court. Moreover, the decree‑holders had filed an ancillary application, E.A. No. 142 of 1952, within the same execution proceeding, expressly requesting that the pending petition be reopened and that the court proceed with it. Since the Court had already determined that the original execution petition remains pending, it held that the executing court is fully empowered to act on the basis of that earlier petition even in the absence of a new filing. In the result, the Court held that

In this case, the Court held that the order issued by the High Court was correct and therefore affirmed. As a result of that finding, the appeal was not successful and was dismissed. The Court further observed that no order regarding the award of costs would be made in this matter. The judgment then recorded the citation to the precedent identified as A.1.R. 1949 Mad, page 251, indicating that the appeal was dismissed in accordance with that authority. It also noted a second citation to the case reported in (1942) 1 L.R. 21 Pat. 838, which likewise reflected the dismissal of the appeal. Thus, the final direction of the Court confirmed the correctness of the High Court’s order, terminated the appeal, and declined to issue any costs order, with the cited authorities supporting the dismissal.