LexPENTAPATI CHINNA VENKANNA & ORS. versus PENTAPATI BENGARARAJU & ORS.
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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 Petl1iun- Fresh 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 Execu- tion 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 exe- cuted 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 pre- vious 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 inten- 1ion 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 whe- 1her 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 Ye1J- kanna having regard to the circumstances under which tbe said order \Vas made, v. whether the Court intended to finally terminate the execution proceed- P. 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 Adhi- kar 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 pre- vious 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
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