Punnayya, J.:— The appellant in C.M.A No. 269/1977 and C.M.A No. 270/1977 is the respondent in E.A No. 95/1976 and E.A No. 101/1976 respectively in E.P No. 27/1976 and he preferred the two appeals having been aggrieved with the common order passed by the II Additional Judge, City Civil Court, Hyderabad in E.A Nos. 95/1976 and 101/1976 in E.P No. 27/1976. C.M.A Nos. 361 and 362 of 1977 are preferred by the petitioners in E.A Nos. 95 and 101 of 1976.

2. These appeals were originally posted before our learned brother Madhava Reddy, J. The learned Judge felt that an Important question of law as to whether a petition under 21 Rules 99, 100 and 101 of Code of Civil Procedure pending on the date of the com-mencement of the amended Civil Procedure Code should he enquired into and disposed of in accordance with the amended Code of Civil Procedure or in accordance with the old Code of Civil Procedure in force on the date of the presentation of that petition. The learned Judge observed that this question would arise for consideration in several execution matters pending in the lower Courts as well as in appeals preferred against the orders passed therein and in his opinion, an authoritave decision of this Court is necessary to guide the executing Courts and that apart the property which forms the subject-matter of these execution proceedings also is stated to be of the value of over Rs. 20,000/- and the execution proceedings related to a decree of over 20 years. The learned Judge, therefore, deems it just and necessary that these appeals should be disposed of by a Division Bench and the learned Judge submitted the records to the Chief Justice. In those circumstances. His Lordship, the Chif Justice, referred this matter to this Bench.

3. Before answering the reference, we feel it necessary to narrate the brief facts leading to these appeals. One Balayya filed a suit O.S No. 5/1/1951 against the defendants (1) Narsing Rao son of Ramakrishna Rao, (2) Panduranga Rao son of Krishna Rao and (3) R. Balayya, for declaration of his title to and for recovery of possession of the land in S. No. 174 admeasuring five begas and 37 dinas. The suit was decreed on 28-11-1951. Ex. C-2 is the certified copy of the decree in O.S No. 5/1/1951. Appeal preferred against the Judgment and decree in O.S No. 5/1/1951 was also dismissed on 7-7-1958 Balayya, the decree holder filed execution petition E.P No. 20/1958 and got it dismissed on 11-7-1961, as there was some obstruction caused by third parties and as the decree-holder did nor file the petition under Order 21 Rule 97 for the removal of obstruction. The decree-holder again filed E.P No. 16/1962 for recovery of possession of the suit land along with seven mulgies and one house situated in S.No 174 of Panjagutta, Hyderabad District from the Judgment-debtors who are the defendants in the suit O.S No. 5/1/1951. The decree-holder also sought for recovery of profits of Rs. 16,000/- which lie in the account of Bazarath Sharfekhas, as the Sharfekhas were collecitng rents from the tenants who were in the occupation of the lands and mulgies in respect of which, Balayya obtained a decree. As per the directions of the Executing Court, the Sharfekhas remitted the amounts into the court and also deposited the rental deeds into the court and informed the tenants in the occupation of the mulgies that they should pay the rents to the decree-holder Balayya. After the amounts were remitted in the Court by the Sharfekha, the Court directed the decree-holder Balayya to withdraw the amount from the court and take possession of the rental deeds and other relavent documents from the court in respect of the mulgies. Accordingly the decree-holder withdrew the amounts and took possession of the rental deeds in respect of the mulgies. The court ordered for delivery of possession of the land and mulgies favour of the decree-holder, Balayya. But Abdul Razak and his two wives who were in the occupation of the mulgie Nos. 240 to 246 resisted the delivery of possession of the mulgies and the land. The decree-holder Balayya then filed E.A No. 23/1963 under Order 21 Rule 97 for the removal of the obstruction. The 4th respondent and his two wives who are respondents 2 and 3 in E.A No. 23/1963 contend that they had taken the site from the Sharfekhas for cent and they constructed the mulgies Nos. 6-3-687 and 6-3-688 and they have been residing in the said mulgies as tenants of Sharfekhas eversince 15 years and they did not pay the rents to Sharfekhas or any other person since police action which took place in 1948 and thus, they perfected their title by adverse possession and the decree-holder is not entitled to take possession from them. The decree-holder adduced evidence both oral and documentary. Respondents 2 to 4 in E.A No. 23/1963 also examined certain witnesses and also adduced documentary evidence. The learned II Additional Judge rejected the case of the respondents 2 to 4 and accepted the case of the decree-holder and held finally that the petition E.A No. 23/1963 was allowed and the respondents were restrained from not causing any obstruction or resistance to the delivery of possession as per the decree passed on 28-11-1951 in O.S No. 5/1/1951. That order was passed on 4-2-1967.

4. Aggrived with the order in E.A No. 23/1963 Abdul Razak and his two wives who are respondents 2 to 4 in the said E.A, filed a suit O.S No. 132/1968 on 9-2-68 in the Court of the IV Assistant judge. City Civil Court, Hyderabad for declaration of their title and permanent injunction and for setting aside the order dated 4-2-1967 passed by the II Additional Judge. City Civil Court, Hyderabad in E.A No. 23/1963 in E.P No. 16/1962. Their suit was pending Punjagutta Houses and Hut Dwellers Association represented by its President filed on 7-3-1968 a suit O.S No. 25/1968 in the Court of the II Additional Judge, City Civil Court, Hyderabad against the decree-holder Balaiah for perpetual injunction restraining the defendants therein from interfering with their possession and enjoyment. The Plaintiffs included Abdul Razak, the appellant in C.M.A No. 362/1977 and Bramhayya the appellant in C.M.A No. 361/1977.

5. The Plaintiffs in O.S No. 132/1968 filed a petition I.A No. 478/1958 on 13-3-1968 for injunction restraining the decree-holder Balayya from proceeding with the execution in E.P No. 16/1962 till the disposal of the suit O.S No. 132/1968. The Court granted in junction as prayed for pending disposal of the suit. In view of the order of injunction, the Court passed on 22-4-1968 an order in E.P No. 16/1962 to the effect that since the counsel for the decree-holder submits that the decree-holder was served with an injunction order, the E.P has become infructuous for the present. The E.P is, therefore, dismissed”

6. The plaintiffs in O.S No. 25/1968 also filed I.A No. 153/1968 for the grant of interim injunction pending disposal of the suit restraining the decree-holder from interfering with their possession and enjoyment in respect of their huts, Interim injunction was granted as prayed for. On account of this order also, the execution petition could not be proceeded with.

7. On 30-4-1969, the decree-holder Balaiah sold an extent of 1224 sq. yds. in S. No. 174 to Nalini Bai the wife of Sri G.N Haridas Nalini Bai sold the said land to Ibrahim Khan who is the respondent in the appeals C.M As. 361 and 362 of 1377, on 15-10-1970. The suit O.S No. 25/68 was transferred to the V. Additional Judge. City Civil Court, Hyderabad and it was renumbered as O.S No. 155/1970. On 20-2-1971 the plaintiff in O.S No. 132/1968 purchased under a registered sale deed, Ex. A. 98, from Balaiah an extent of 459 sq. yards along with the tin sheds bearing Municipal Nos. 6-3-686 and 687 for a consideration of Rs. 3000/-. Ultimately the plaintiffs Hut Dwellers and the defendant Balaiah entered into compromise and they filed on 15-4-1971 a compromise memo. Clause 3 of the joint memo is to the effect that the members of the plaintiff Association agreed to purchase and the defendant agreed to sell the respective portion of lend, under the dwelling houses and huts in their occupation in S. Nos. 174 and 122 situated at Nizamguda, Punjagutta, Hyderabad at the rate of Rs. 8/- per sq. yard and in fact some of them have already entered into individual agree merit with the defendant to purchase the same in pursuance of the compromise thereof and paid advances as shown in the respective agreement. Clause 4 is to the effect that the purchasing members of the plaintiff Association shall have the respective sale deeds executed and registered end the property conveyed in their favour at the hands of the defendant by payment of the balance price within a period of one year from the date of the agreement or the date of this compromise whichever is earlier. Clause 5 is to the effect that in the event of default in payment of the and balance price or the supply of the necessary stamp paper and the registration fee and other expenses incidental thereto, the advences paid shall be forfeited and the defendant shall be entitled to dispossess such defaulting members from the respective portion of the land, dwelling houses or huts and allenate the same to other prospective purchasers. The members of the plaintiff Association shall not object to or obstruct the regultings dispossession or the consequent alienation. In terms of the compromise, the suit be dismissed without costs.

8. The learned V. Additional Judge passed judgment on 15-4-1371 that the parties filed compromise memo and the same is ecorded and that the suit is dismissed without costs as per the terms.

9. In view of the compromise in O.S No. 155/70, Abdul Razak, one of the plaintiffs in O.S No. 155/70 and also the plaintiff in O.S No. 132/68 did not want to prosecute his suit O.S No. 132/68 and hence got dismissed it on 17-12-1971 for default.

10. The Hut Dwellers Abdul Razak, Brahmayya and Basharat Ali Khan and 9 others filed E.A No. 60/72 questioning the competence of the President of the Association to enter into compromise and contended that decree in O.S No. 155/70 is collusive and fraudulent. That petition was dismissed. But they preferred appeal No. 123/1973. The learned Additional Chief Judge, City Civil Court, allowed the appeal holding that the decree in O.S No. 155/70 is not executable (Ex. A-5 is the certified copy of the judgment in the appeal).

11. Since the plaintiff in O.S No. 155/1970 did not purchase the property as per the terms of the compromise decree within the prescribed time, Balaiah's son filed E.P No. 22/72 for execution of the compromise decree, after the decree holder Balaiah died. But the Court dismissed the said E.P on 12-2-1973 holding that after the death of the decree-holder, his son was not brought on record as his legal representative and hence the E.P is not maintainable. Again on 30-3-1973 E.P No. 18/1973 was filed by the legal representatives of Balaiah. But Muhammed Ibrahim Khan who purchased a Portion of the decretal property from Nalini Bai filed E.A No. 123/1973 under Section 146 in E.P No. 18/1973 in O.S No. 155/70 for the grant of permission to execute the decree. It was contested. Counters were filed on 5-11-1973 and on 26-12-1973 by Abdul Razak and Brahmayya. Legal resentatives of the decree-holder Balaiah reported that they have no objection. On 15-7-1975, E.A No. 123/1973 was allowed as per the orders under Ex. D-1. E.P No. 18/1973 which was prosecuted by Ibrahim Khan as per the orders in E.A No. 123 of 1973 was ultimately dismissed on 19-2-1976 as the petitioner was not ready. Later the purchaser decree holder Muhammed Ibrahim filed E.P No. 27/1976 for executing the decree in O.S No. 5/1/1961 seeking to recover possession of 1224 Sq yards in Sl. Nos. 174 and 122. Ex. C-1 is the original of Ex. P. 27/1976 Delivery of possession was ordered on 24-4-1976. The Bailiff reported that delivery of possession was effected as per the delivery receipt dated 8-5-1976. On 26-6-1976 the Court recorded full satisfaction out of this 1224 sq. yards. Municipal Corporation took over an extent of 865 sq. yards. The balance of 359 sq. yards is thus in the possession of Muhd. Ibrahim Khan. But Abdul Razak and Bramhayya filed E.A Nos. 95/1976 and 101/1976 respectively for redelivery of possesion Brahmayya seeks to recover 405 sq yards, while Abdul Rtzak seeks for recovery of 500 sq. yards. Brahmayya contends in E.A No. 95/1976 that he has been in possession end enjoyment of the premises bearing Municipal No. 63883/9 at Punjagulta for the last 100 years i.e, eversince the time of his grandfather. The original decree holder Balaiah released all the land in the year 1952 in favour of Hut Dwellers giving away the land and executed a document on a stamp paper which is in his possession of the respondent Md. Ibrahim Khan. As the Sharfekhas Department claimed the land as belonging to it, he (Brahmayya) was paying rents to it. He is also paying the tax to Municipal Corporation from 1948 and non-agricultural tax from 1957. He has been carrying on the business in the premises besides enjoying it as his residence. But Ibrahim Khan having colluded with Court bailiff and the Sub-Inspector of Punjagutta Police Station has highhandedly and illegally executed a warrant on 8-5-1976 and Ibrahim Khan entered the building for demolishing it and carried away the materials and other samans worth about Rs. 34,291-22 from the house. He also contends that the execution of the warrant is bad since the E.P No. 27/1976 was filed after expiry of a period of 12 years and he (Brahmayya) is not a judgment debtor and the order of the Vth Additional Judge, City Civil Court, Hyderabad in E.A No. 123/1973 is bad. He finally contends that the respondent Ibrahim Khan has taken possession illegally and he should, therefore, be direcred to redeliver the possession of the premises to the petitioner.

12. Opposing this petition, Ibrahim Khan contends that Brahmayya has been in possession of the land as an encroacher and he knew that the land belonged to the decree-holder, Balaiah but not the Sharfekhas, but yet he occupied forcibly. As the order of the Court in E.A No. 123/1973 has become final, the respondent Ibrahim Khan is entitled to execute the decree and has taken possession of the land in accordance with law and there was no collusion between him and the bailiff. He also contends that the E.P, is not filed after the expiry of the limitation period and the petitioner Brahmayya who has been obstructing for the last 7 years is not at all entitled to the redelivery of possession.

13. Abdul Razak, the petitioner in E.A No. 101/1976 contends that his forefathers have been in possession and enjoyment of an extent of 500 sq. yards for more than 100 years and hence perfected their title by adverse possession. In the year 1354 Fasli one Syed Mohammad obtained this plot in his name from the Superintendent Bazarath Sharfekhas Mubarak and the petitioner got it allotted in his name from the said Sharfekhas. The petitioner applied to the Municipal Corporation for the construction of Mulgies and after obtaining permission he constructed seven mulgies with cement and brick walls and it is given the Municipal Nos. 6-3-687 and 6-3-688. He has let out the same to various tenants and has been paying Municipal Tax since 1948. The original decree-holder executed a deed in 1952 in favour of the Hut Dwellers Association releasing the land and the relevant documents are in possession of the respondent. Moreover, the petitioner purchased the land on which the Mulgies in his occupation stood under a registered sale deed dated 20-2-1971 (Ex. A-98) executed by the decree-holder Balayya for a sum of Rs. 3,000/-. The bailiff of the court and the police colluding with the respondent demolished the entire premises and the other samans of the petitioner's tenant were taken away by the respondent. The demolished premises excluding the land value is not less than Rs. 15,000/-. The tenants of the petitioner have lost their articles worth Rs. 11,172/-. As the possession was taken illegally the respondent should be ordered to redeliver the possession of the Premises to the petitioner.

14. Opposing this petition, the respondent Ibrahim Khan adoped the averments taken in the counter filed in E.A No. 95/1976.

15. In the joint enquiry the two petitions were clubbed together and the petitioners filed Exs. A-1 to A-103, while the respondents filed Exs. B-1 to B-16. The court documents are Exs. C-1 to C-8. Respondent No. 18 in E.P No. 27/1976 is not the same person who is the petitioner in E.A No. 101/1976 though he is named as Abdul Razak, Brahmayya the petitioner in E.A No. 95/1976 is the 9th respondent in E.P No. 27/1976. As E.As 101/1976 and 95/1976 are pending, the said E.P No. 27/1976 is also kept pending.

16. The learned II Additional Judge, City Civil Court disposed of E.As 95/1976 and 101/1976 in E.P No. 27/1976 by a common order and gave the following findings.

(1) The order in E.A No. 23/1963 in E.P No. 16/1962 relates to Mulgies 8-2-240 to 245, but does not relate to Mulgies 6-3-687 and 688 which are the subject-matter of E.A No. 101/1976 and hence the order in E.A No. 23/1963 does not bind Abdul Razak, the petitioner in E.A No. 101/1976 in so far as the Mulgies 6-3-687 and 688 are concerned;

(2) The decree in O.S No. 155/1970 was held to be inexecutable as per the judgment of the Additional Chief Judge in A.S No. 123/1973 (Ex A-5.)

(3) Ex. A-1 is a colourable sale deed and it was not acted upon and if it was acted upon, E.P No. 18/1973 could not have been fried:

(4) In so far as Brahmayya is concerned, Ex. B-2 the order in E.A No. 23/1963 is of no consequence as he is not a party to those proceedings, Brahmayya is a bona fide claimant in respect of his Mulgi 6-3-883/9 and if any obstruction was caused by Brahmayya the decree-holder should have filed a petition under Order 21 Rule 97 and as no such proceedings were taken, the dispossession effected in pursuance of the order in E.P No. 27/1976 is illegal:

(5) Ibrahim Khan without obtaining permission from the Court to file E.P No. 27/1976 as the assignee of a portion of the subject matter of the properly in the decree in O.S No. 5/1/1951, he cannot take advantage of the order in E.A No. 123/1973 for presenting E.P No. 27/1976 as the order granted to him in E.A No. 123/1976 relates to E.P, No. 18/1973 in O.S No. 155/1976, but not to the decree in O.S No. 5/1/1951.

(6) The judgment-debtors in E.P No. 27/1976 are different from the judgment-debtors in E.P No. 16/1962 or the defendants in O.S No. 5/1/1951 and hence E.P No. 27/1976 is not maintainable against the judgment-debtors;

(7) E.P No. 27/1976 is barred by limitation since it was not filed within the period of 12 years from 28-11-1951 when the decree in O.S No. 5/1/1951 was granted, though E.P No. 16/1962 was within time and even if the execution in E.P No. 16/1962 was stayed as per the order of injunction passed in O.S No. 155/1970, E.P No. 27/1976 was barred by limitation since the injunction was vacated on 15-4-1971 and E.P No. 27/1976 was not filed immediately after the injunction was vacated, but was filed on 19-4-1976.

(8) A portion of the land in question was alienated to the Municipal Corporation by the respondent in E.A Nos. 95/1976 and 101/1976, for widening the road and as such the Interests of the public at large are involved and the rights of the innocent third party viz., the Municipel Corporation of Hyderabad have intervened and so to the extent that the land has been alienated in favour of the Municipal Corporation, the petitioners in E.A Nos. 101/1976 and 95/1976 cannot justifiably ask for the restoration of the physical possession of the land and they are at liberty to file separate suits against the respondents for recovery of damages to that extent: and

(9) The respondent is, therefore, directed to restore to the petitioners in E.A Nos. 101/1976 and 95/1976 the possession of their Plots which are in his enjoyment and under his control without prejudice to the rights, file separate suits against him for recovery of damages with reference to the portions of the petitioners plots and which have been alienated to the Municipal Corporation of Hyderabad.

17. Thus the respondent was totally aggrieved with the orders in E.A No. 101/1976 and 95/76 and preferred CMAs. 269 and 270 of 1977, Brahmayya the petitioner in E.A No. 95/1976 and Abdul Razak the petitioner in E.A No. 101/1976 were also aggrieved with the orders in not directing the respondent to deliver possession of the lands alienated to the Municipal Corporation, but directing them to file separate suits against the respondent for recovery of damages and preferred appeals CMAs. 361 of 1977 and 362 of 1977.

18. Sri Gururaja Rao, the learned counsel for the appellant in CMAs. 269 and 270 of 1977 contends that the lower court is not correct to hold that E.P No. 27/1976 is barred by limitation as it is a proceeding in continuation of the original E.P No. 16/1962 the prosecution of which could not be proceeded with on account of injunction granted by the IV Assistant Judge in O.S No. 132/1968 and by the VI Additional Judge in O.S No. 155/1970. He also contends that the learned Additional Judge is not justified to hold that E.P No. 27/1976 is not maintainable against Brahmayya and Abdul Razak as they are not the defendants in O.S No. 5/1/1951 and also not the judgment-debtors in E.P No. 16/1972. He also contends that the learned Additional Judge is not justified to hold that the order in E.A No. 23/1963 does not bind against Abdul Razak. He contends that Abdul Razak is bound by the decision in E.A No. 23/1963 when his suit O.S No. 132/1968 was dismissed. He further contends that Abdul Razak as well as Brahmayya are bound by the compromise decree in O.S No. 155/1970 as they are parties to the said compromise on the basis of which the decree was passed and the Additional Judge is not justified to hold that the decree in O.S No. 155/1970 is inexecutable. He also contends that the learned Additional Judge is not justified to hold that Ex. A-1 is a colourable sale deed and it was not acted upon by the decree-holder in O.S No. 5/1/1951. He further contends that the learned Additional Judge is not justified in not taking oral evidence from both parties though the appellant in these two appeals sought to adduce evidence. He further contends that under the new Civil Procedure Code, the decision in a proceeding under Order 21 Rule 97 has the effect of a decree in a suit for title and a separate suit to be filed by party if he is aggrieved with the decision in this proceeding is not contemplated and as such the learned Additional Judge has committed illegally in not permitting the parties to adduce such evidence as they deem it necessary in support of their respective claims.

19. As against the contentions of Sri Gururara Rao, that E.P 27/1976 is not barred by limitation, the learned Advocate General contends that the said E.P is barred by limitation. He contende that even if there is an injunction restraining the decree-holder from proceeding with the execution of E.P No. 27/1976 during the pendency of O.S No. 132/1968 and O.S No. 155/1970, the decree-holder ought to have filed the present execution petition immediately after the injunction was vacated or ought to have filed the execution petition within three years from the date when the injunction was vacated. According to him, when the injunction was vacated, the decree-holder is free to proceed with the execution. Nothing prevented him from carrying on the execution. At any rate, he is not entitled to file a subsequent execution petition beyond three years since Article 181 of the Limitation Act prescribes that a subsequent execution application should be filed within three years from the date when the injunction restraining the decree-holder from proceeding with the original execution petition is vacated. He also contends that the present execution petition E.P No. 27/1976 cannot be treated as a proceeding in continuation of E.P No. 16/1962, as E.P No. 16/1962 was dismissed finally since the learned Additional Judge passed an order dismissing the E.P for the reasons mentioned therein and that order cannot be equated with the order “struck off” or “closed” and the order dismissing E.P No. 16/1962 should be treated as final disposal.

20. Even against the contention of Sri Gururaja Rao that E.P No. 27/1976 is maintainable against Brahmayya and Abdul Razak, the learned Advocate General contends that it is not maintainable against them as they are not the same judgment-debtors shown in E.P No. 16/1962 nor they are the defendants against whom the decree in O.S No. 5/1/1951 was passed. According to him, no decree against Brahmayya and Abdul Razak was obtained by Balayya in O.S No. 5/1/1951 or by Ibrahim Khan who is said to be the transferee of a portion of the property which is the subject-matter of the decree in O.S No. 5/1/1951 and hence neither of them can levy execution against them. He also contends that Ibrahim Khan did not obtain permission from the Court to levy execution against Abdul Razak and Brahmayya as transferee of a portion of the property which is the subject-matter of the decree in O.S No. 5/1/1951 and in the absence of such permission from the Court, he is not entitled to file E.P No. 27/1976 and the E.P is thus not maintainable against Brahmayya and Abdul Razak.

21. It is not in dispute that E.P No. 16/1962 was stayed by the injunction order passed by the Additional Judge in IA No. 153/1968 in O.S No. 25/1968 (O.S No. 155/1970) restraining the decree-holder in O.S No. 6/1/1951 from proceeding with the execution of E.P No. 16/1962 till the disposal of O.S No. 155/1970. It is also not in dispute that O.S No. 155/1970 was disposed of on 15-4-1971 as the parties entered into compromise and that suit was dismissed and consequently the Injunction was vacated. But Brahmayya and Abdul Razak and nine others filed E.A No. 60/1972 in E.P No. 22/1972 in O.S No. 155/70 questioning the competency of the President of the ‘Hut Dwellers’ Association to enter into compromise but that petition was dismissed. Against that order, they preferred AS No. 123/1973. In A.S No. 123/1973 the legal representatives of Balayya were impleaded as respondents 1 to 6, as Balayya died. The appeal was finally allowed by the Additional Chief Judge, City Civil Court on 24-6-1976 by holding that the decree in O.S No. 155/1970 was not executable decree. But before the judgment was delivered in A.S No. 123/1976, E.P No. 27/1975 was filed on 19-4-1976. As Balayya, the decree-holder, was impleaded as 1st respondent in E.A No. 60/1972 and as the legal representatives of Balayya were impleaded in A.S No. 123/1973 as respondents 1 to 6, they could not proceed with the execution in E.P No. 16/1962 till the disposal of A.S No. 123/1973 on 24-6-1976. If that be so, E.P No. 27/1976 which was filed on 19-4-1976 cannot be said to be barred by limitation. But if the period taken for the proceedings in E.A No. 60/1972 and A.S No. 123/1973 is excluded and if the date 15-4-1971 on which date the injunction was vacated is taken into consideration, it is clear that E.P No. 27/1976 was filed five years after 15-4-1971.

22. The question is whether E.P No. 27/1976 is barred by limitation?

23. In view of the injunction granted by the II Additional Judge restraining the decree-holder Balayya from proceeding with the execution of E.P No. 16/1962, the II Additional Judge passed the following order in that E.P, on 22-4-1968:—

“Decree-holder and his advocate are called absent. Decree-holder did not turn up for taking possession Sri Dasaratha Reddy now appears for decree-holder and prays that decree-holder was served with an injunction order. This E.P is in-fructuous for the present. The same is dismissed.”

24. As stated above, the learned Advocate General contends that the order should be treated as final order. But we find ourselves unable to agree with this contention.

25. No hard and fast rule may be laid down for determining whether an order is final or otherwise. But the question whether an order passed in the execution petition is a final order or not depends upon the interpretation of the order and the inference to be drawn as to the intention of the court in passing such an order. Merely because the word ‘dismissed’ was used, it cannot be concluded that there was a final determination in the proceeding and that it was finally disposed of by a judicial order. It is the substance and not the form of the order which has to be looked into to determine the intention of the court, in passing such an order. Authorities seem to be agreed that if the execution petition is struck off, closed or dismissed because of the stay or injunction granted by a competent court, there is no final determination in the proceeding.

26. When the decree-holder's counsel Dasaratha Reddy submits that the decree holder was served with an injunction order and the office also noted that such an Injunction order was passed, the decree-holder is restrained from proceeding with the execution. The executing court has felt that because of the injunction order, granted by the II Additional Court itself the execution petition cannot be proceeded and it has, therefore become infructuous for the present and hence it is dismissed.

27. The intention of the executing court in passing such an order is clear enough to show that it cannot pass final order on merits in the execution petition. Hence it has treated the execution petition as infructuous for the present. It is in this context that the executing Court has dismissed the execution petition. The dismissal of the execution petition with the use of the word ‘dismissed’ cannot, therefore, be treated as judicial disposel in the sense that it was disposed of with the final determination of the matter.

28. When the execution is stayed without any final determination in the proceeding, can it be treated as a proceeding pending and capable of being continued after the obstruction is removed or the injunction is vacated?

29. The answer is in the affirmative. Where the execution petition was struck off or closed or dismissed because of the stay of injunction granted by a competent court, it ought to be treated as a proceeding which is pending and in a state of suspended animation. As the proceedings in execution were suspended because of the conduct of the judgment-debtor and the interruption to the execution of the decree was not occasioned by any fault or laches of the decree-holder, but by the unwarranted intervention of the judgment-debtor in furtherance of a device invented by him to frustrate the rights of the decree-holder, the earlier proceeding should be treated as a proceeding pending and is thus capable of being continued, or even if the decree-holder files an application which, on the face of it, is one or execution, it may be considered as one for continuation of the earlier proceeding and it cannot be trated as a fresh application. The mere fact that it is not stated in express terms that it is an application for revival of or continuation of the previous execution petition, should not deprive the decree-holder of his right to have the previous proceeding revived or continued.

30. Though there is acute divergence of opinion of the authorities on the question whether a subsequent application to revive the previous application is necessary and whether such a subsequent application has to be filed at any time or to be filed within a period of three years from the date when the stay or injunction is vacated, there is absolute unanimity in the judicial pronouncements on the question that the previous proceeding can be continued after the stay or injunction is vacated and that it should be treated as a pending proceeding on the ground that the execution could not be proceeded with on account of the order of the competent court at the instance of the judgment-debtor.

31. In Gurudeo Narayan Sinha v. Amrit Narayan Sinha ILR 33 Cal. 689, A ohtalned a mortgage decree against G and he applied on 11-1-1901 for sale of the mortgaged property. G's son claiming a portion of the property filed a suit and obtained an injunction, for stay of the sale of the share claimed. On 16-5-1901, excluding the share of G's son, the property was put up for said. There being no bid, the execution case was dismissed. On the withdrawal of the suit by the judgment-debtor's son, the decree-holder renewed his application for sale of the entire property on 4-7-1904. The judgment-debtor objected that as regards the 3/4th of his share of the property which was previously put up for sale the application was barred by limitation, the learned Judges held that the decree-holder was not responsible for the stey of the execution and the juagment-debtor himself prevented the decree holder from proceeding with his application for execution and hence the application of 4-7-1904 must be treated as a continuation of the former one of 11-1-1901.

32. In Chattar Singh v. Kamal Singh, AIR 1927, All 16 (F.B) the decree-holders obtained a final decree for a sale on 7-6-1912. They made an application for execution on 4-1-1916. On 23-3-1916 the execution proceedings were transferred to the Collector for execution as the property sought to be sold was ancestral. On 13-11-1916 while the proceedings were still pending before the Collector, a suit was brought to obtain a declaration that the property was not liable to be sold in execution. The litigation thus commenced went on till 6-7-1920 when the High Court decided that the property was liable to be sold and dismissed the suit. By reason of injunctions issued in the course of this litigation the execution proceedings in the court of the Collector were stayed and the bar to the progress of those proceedings were only withdrawn eventually by the judgment of the High Court on 6-7-1920. On 17-3-1920 the Collector took up the execution proceedings again and recorded an order in which it was recited that inspite of notice given to the son of one of the decree-holders, no steps were being taken to prosecute the case in his court. Being of the opinion, that there was default in prosecution, he directed that the papers be returned to the court of the Subordinate Judge. The record reached the office of the Subordinate Judge and was placed before him on 31-8-1920 whereupon without issuing notice to either of the parties, he ordered that the application for execution should be struck off from the list of pending applications, that a note to this effect should be recorded in the appropriate register and that an entry should further be made in the register of decided cases. These orders were clearly based upon the statement or opinion of the Collector in his order on 7th August to the effect that the decree-holders were taking no steps to prosecute the execution proceedings. Nothing more was done by the decree-holders till 10-1-1923 when they presented the application which formed the subject matter of the present appeal. In fact this application was one for execution of the decree drawn up in accordance with the rules.

33. The Full Bench observed that it has been repeatedly observed that an order striking off a pending application for execution is not recognised by the law. This view was again expressed in the recent judgment of a Bench of this court where it was said that an order directing an execution application to be struck off was not an order sanctioned by any rule (LPA No. 18/1925), decided on 22-3-1926. If this be so, it follows that the order of the Subordinate Judge on 31-8-1920 was invalid in law for the purpose of concluding the execution proceedings initiated by the application of 4-1-1916. The only result it could have was that of leaving the proceedings still pending. In this view the application of 10-1-1923 was one made during the pendency of the execution proceedings and is not to be treated therefore as a fresh application for execution. In substance, it is merely an application asking the court to continue the earlier proceedings.

34. In Kristo Kamini Devi v. Girish Chandra AIR, 1936 Cal. 239 the plaintiff obtained a money decree on 8-6-1920. In 1921 the decree-holder filed an execution petition. It was numbered as title execution No. 1135/1921. Therein she applied for sale of some properties and in due course the said properties were attached. The judgment debtors, however, instituted a suit against her in 1922 (Title Suit No. 66/1922) in which they prayed for setting aside her decree. In the course of that suit an injunction was applied for and obtained by the judgment-debtors, restraining her from proceeding with her execution till the disposal of the said suit. On the injunction being granted, the executing court recorded an order on 19-6-22. In the following terms:—

“Under Order No. 7, dated 19th June 1922 passed in title suit No. 66 of 1922 the sale of this case be stayed. The attachment will continue till the disposal of the aforesaid suit. The case be dismissed for the present”

35. On 10-6-1929 the said title suit was dismissed by the Court of first instance and an appeal against the decree of the said suit was dismissed on 21-7-1930. On 20-4-1933 i.e, beyond three years of the date of dismissal of the title suit by the first court, when the injunction order terminated, the appellant filed an application in the executing Court. This was objected by the judgment debtors. The learned Judges held that when an execution case is still pending, it cannot be proceeded with further by reason of an injunction and has been struck off from the file or is removed by an order which does not terminate it finally, but has the effect of only removing it from the list of pending cases, they do not see why it must be said hat the decree-holder is bound to apply for revival of the said proceedings after the removal or discharge from the injunction.

36. In Bhan Detta v. Tulsa Kuer AIR 1940 All. 151 (F.B) a mortgagee decree under Order 34, Rule 5 was passed in favour of the mortgagees on 9-8-1928. The decree-holders applied for execution of their decree on 19-12-1920. An objection was preferred to the execution application by the judgment debtor under Section 47 C.P.C This objection was dismissed on 15-8-1931. Thereafter the execution application was transferred to the Court of the Calcutta. On 6-11-1931, one Smt. Tulsa Kuer one of the judgment-debtors filed a regular suit in which she sought to recover a sum of Rs. 550/- on the basis of a receipt upon which the aforesaid objection to the execution of the, mortgage decree under Section 47 C.P.C was preferred. She obtained an order from the Court staying the execution of the mortgage decree pending the result of her suit. Under Order 21, Rule 29 C.P.C the court stayed the execution of the decree till the disposal of the suit. This order was communicated to the Collector to whose court execution proceedings were transferred. Upon receipt of this order, the Collector returned the records to the executing Court. The learned Munsif on receipt of the record ordered on 3-2-1932 that the papers be filed and consigned to the record room. Tulsa's suit failed and final decree of dismissal was passed on 14-2-33. On 25-7-36 the decree-holder applied for execution of the decree against Smt. Tulsa and other judgment-debtors who contended that it was barred by time. The Civil Judge in the lower appellate court accepted the objection of the judgment-debtors following certain decisions and held that the application made on 25-7-35 having been made beyond three years from the final disposal of Tulsa's suit it was barred by limitation. In the appeal, it was contended for the decree-holders that the application of 25-7-1935 should be regarded merely as step taken by the decree-holders to inform the execution court that the bar to the execution proceedings had been removed and it should not be regarded as either fresh application for execution or an application to revive excution proceedings.

37. The learned Judges held that in the present case so far as the execution application was concerned, the decree-holders had done every thing that was required of them. They had presented their application for execution within time. They had taken all the necessary steps in the execution Court. That Court had sent the application to the Collector for disposal since the property to be sold in execution of the decree was ancestral property. It was for the Collector to have acted in accordance with the rules of Chap. XL of the Revenue Manual promulgated by the Local Government under Section 68 C.P.C Before the Collector could act in accordance with the provisions of these rules however he was directed by the execution court to stay proceedings. He accordingly did so and returned the file to the execution court. When the stay order ceased to operate it clearly was the duty of the execution Court to re-trasmit the file to the Collector. If this had been done the Collector would have proceeded to dispose of the application in accordance with the aforementioned rules. It was in fact unnecessary for the decree-holders to have moved in the matter at all. No doubt in their own interests the decree-holders might have brought the facts that Mt. Tulsa's suit had been disposed of to the notice of the execution court by means of a minute, but there is no statutory provision under which it was incumbent on them to make an application, and if therefore they did make an application, clearly it was not governed by the provisions of the Limitation Act.

38. In Pattannayya v. Pattayya AIR 1926 Mad. 453 the court ordered in E.P 323/1915 on 21-7-1915 the delivery of the property to the decree-holders. Third persons objected to the delivery. The objection was removed and item 3 was delivered to them on 27-3-1916 and the Court passed an order on that day to the effect that the third item was delivered to the petitioners end the petition was recorded A suit was filed by the obstructors and a temporary injunction was Granted against the delivery of item 2. The suit was ultimately dismissed on 18-12-1916 and consequently the temporary injunction ceased to be in force from that day. The respondent filed E.A on 3-9-1921 and prayed for delivery of item 2 from the 10th defendant. Both the courts dismissed the application as being barred by limitation. But the learned single Judge of the High Court held in CMSA. No. 38/1923 that the application was within time. Hence the appeal, by the 10th defendant, to the High Court. It was contended before the court by the appellant that the application of 1915 is barred by limitation as the order of the District Munslf on the application of 1915 that the third item was delivered to the petitioners and the petition was recorded amounts to an order of dismissal of the application.

39. The learned Judges held that the Code of Civil Procedure does not contemplate the passing of such an order. When execution application is filed and if it is in order it has to be disposed of on the merits. If it is barred by limitation or if the decree has teen satisfied or if the applicant is not the decree holder's assignee or his legal representative or if the decree-holder does not help the court in executing the decree or omits to do anything which the court directs him to do the application will have to be dismissed unless for proper reasons the court adjourns the application. If the decree-holder is not able to do the thing directed to be done within the time allowed by the court, the court has to give him further time. There is no provision of law by which the executing court could lodge the petition or record it or strikes it off for what is only on the statistical purposes. The executing court is bound to follow the procedure laid down in the Code and it cannot dismiss the application for the reason that it is long pending. If there is obstruction to the execution of the decree the court ought to adjourn the petition till the removal of the obstruction. It does not matter how long the obstruction continues if a temporary injunction is issued against the court executing the decree, the court should stay its hand till the injunction is disallowed, or till the suit in which it is granted is disposed of. If a permanent injunction is granted against the execution of the decree, then the application for execution will have to be dismissed. If the executing court adjourns the petition from time to time it will enable the decree-holder to inform the Court as to the progress of the suit or proceeding which the temporary injunction is granted and as soon as it is informed that the obstruction has been removed, the court should proceed to dispose of the application according to law. It is to prevent dilatory proceedings and the long pandency of execution applications that Order 21 Rule 57 has been enacted. It lays upon the decree-holder the duty of helping the Court to execute the decree in his favour and if by reason of the decree-holders default, the Court is unable to proceed further with execution, it shall either dismiss the application or for sufficient reasons adjourn the proceedings to a future day. Upon the dismissal of such an application the attachment shall cease. Instead of following the procedure laid by the Code if the executing Court orders that the petition be lodged or recorded or be struck off, such an order is not one sanctioned by the Code and it only amounts to this Petition is adjourned sine die. In this view the petition of 1915 is still on record of the executing court and the petition of 1921 is not a further application for execution nor is it an application to revive that of 1915; for that is still on the file and no application is required to revive an application which is pending. As the dismissal is not on the merits or for the default of the decree-holder, but for statistical purposes or on account of obstruction which would take time to remove, and as the application of 1915 is still pending, the application of the executing court to that effect that the execution application had to be proceeded with.

40. In Krishnamachari v. Chengalraya AIR 1940, Mad. 281 the main question raised by the appellant in the appeal was whether an application for restitution made on 13-11-1925 in consequence of an order passed on appeal on 9-7-1924 and returned by the Court on the ground that an order of interim injunction restraining the applicant from recovering the amount deposited by him for costs was still in force and should therefore be proceeded with. In other words, whether the application of 13-11-1925 should till be deemed to be pending as no final orders were passed on it. It was held that the Court was not justified in returning the application to appellants on the ground that an interim order for stay had been passed by it two days before. The application should have been retained in court and any legal order that the executing court might have considered to be proper and which it was competent to give should have been passed thereon. As no final order was passed on the application of 13-11-1925, the application although not physically in court must be yet treated to be pending and undisposed of. There is no duty cast on a decree-holder to make an application to revive an execution petition and the subsequent application of 1934 must be in the absence of any such duty taken to be a kind of reminder to the court to take up his application for execution or restitution which has not been disposed of and decide it according to law.

41. In Venkata Subbayya v. Venkanna 1952 (II) MLJ 498 the decree-holder filed an application for the execution of the decree the first of which was E.P No. 338/1939. When this was pending, the judgment-debtor filed an application E.A No. 565/1940 on 28-6-1940 under Sec. 20 of the Madras Act IV of 1938 and on the application there was an order for stay passed on 2-7-7940. On the same day E.P 333/1939 was struck off from the file. On 20-8-1940 the judgment-debtor filed a regular application under Section 19 of the Madras Act IV of 1938, and the decree-debt was eventually scaled down to about Rs. 300/- by an order of the Court dated 3-1-1941. On 2-11-1944 more than three years after the orders scaling down the decree, the decree-holder filed E.A No. 1341/1944 to bring E.P No. 338/1939 Into the pending list and to continue further execution. The judgment-debtor objected. The learned Judges held that E.P No. 338/1939 was not dismissed lawfully as there was no default on the part of the decree-holder and the court did not Intend by the words “struck off” to finally dispose of the execution petition. It must therefore be deemed to have been alive all the time and all that the decree-holder presumably did in E.A No. 1341/1944 was to request the court to take up petition and proceed with the further execution. The decree-holder is, therefore, entitled to get the dismissed petition revived.

42. In Banarsi Prasad v. Kirtyanand AIR 1934 Patna 532 it was held that subsequent application must be treated are a continuation of the previous application, because the previous application could not be proceeded with on account of the bar having been placed by the allowance of the claim and the fresh application was nothing more than an application to revive the proceeding which had to be stopped and hence the execution must proceed.

43. In Firm Dahin v. Raghunandan AIR 1952 Assam 172 the previous execution case terminating the order which was in the following terms “seen D.J's order in Misc. appeal No. 2 of 1944. The case is old. J.D's petition No. 55 for stay of execution till the period of appeal before the High Court. Stay execution till the period of appeal. Case very old. Disimissed. “The learned Judges held that the intention of the Judge in this case was to stay the proceeding to enable the judgment-debtor to follow. 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 and application is stayed without any final determination in the proceeding. It should be treated as a pending and in suspense and is, therefore, capable of revlval. Hence the decree-holder is entitled to ask for the revival of the previous proceeding even though the subsequent application which on the face of it is one for execution, may be considered as one for revival or continuation of the earlier proceeding.

44. In Venkanna v. Bangararaju AIR 1964 S.C 1454 a question whether E.P No. 58 of 1953 is a fresh application within the meaning of section 48 of the Code arose for consideration. The previous execution petition i.e, E.P No. 13/1939 was disposed of by the executing court with the order “closed” as the High Court stayed the execution pending the appeal by the judgment debtors and as such the decree-holders were not in a position to proceed with the execution petition, After the disposal of the appeal by the High Court and before the filing of E.P No. 58/1953, the decree-holders filed E.A No. 142/1952, for reopening E.P No. 13 of 1939. On that petition the learned Subordinate Judge made the following orders:

“The previous E.P was merely closed. Petitioner may file a regular E.P on which proceedings will continue from the stage at which they were left in E.P No. 13 of 1939.”

45. Against that order appeal was preferred before the High Court. The High Court held that the previous application was merely closed for statistical purposes and hence the execution petition No. 13/1939 should be deemed to be pending. The Supreme Court had to examine whether the view expressed by the High Court was correct. Their Lordships held that the passing of such an order as ‘closed’ for statistical purpose cannot tantamount to an order of dismissal. It is intended not to finally dispose of the application, but to keep it pending. Whether the order was without jurisdiction or whether it was valid, the legal position would be the same; in one case it would be ignored and in the other, it would mean 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 made, whether the Court intended to finally terminate the execution proceedings, if it did not intend to do so it must be held that the execution proceedings were pending on the file of the Court. Their Lordships finally held that they have no hesitation in agreeing with the High Court that E.P No. 13/1939 is pending on the file of the executing court and that the present application is only an application to continue the same.

46. The above cited authorities clearly lay down that where the decree-holder is not responsible for the stay of the execution of his decree and it was the stay or injunction obtained by the judgment-debtors that prevented the decree-holder from proceeding with the execution. The decree-holder is entitled to file a subsequent application for continuation of the original execution proceedings and the subsequent application though appears to been application for execution should be considered as one to remind the Court about the need to continue the execution of the earlier execution, the execution of which was obstructed by the stay or Injunction order.

47. The next question that requires consideration is whether the application, filed to bring to the notice of the executing Court that the injunction was vacated and that it can proceed with the execution, can be filed at any time Irrespective of the period of limitation or whether any period of limitation was prescribed for filing such art application.

48. There is a sharp divergence of judicial opinion on this question. One view is that an application for revival of an execution proceedings is governed by Article 181 which is a residuary Article and the other view is that the Law of Limitation does not apply to an application for the revival of or the continuation of the original execution proceedings which was not finally disposed.

49. In Akshoy Kumar Roy v. Abdul Kader (10) the learned Judges observed that it is well known that an application for reviving execution proceedings is governed by Article 181 of the Limitation Act and the time from which the period begins to run is when the right to apply accrues and it is settled that the time runs from the date when the right to apply first accrues.

50. But in Kristo Kamini Devi v. Girish Chandra (3) the learned Judges took a different view. They did not agree with the view that after the removal of an injunction staying execution and further proceedings, the decree-holder is bound to file a petition for permission to go on with his case within three years. The learned Judges observed that this implies that a duty is cast upon the decree-holder to file such a petition. “With great respect to the learned Judges who have taken that view”, the learned Judges observed, “we are of opinion that such a petition is entirely redundant, and the decree-holder cannot be prevented from going on with his pending case in the ordinary way. Indeed in some cases it is not necessary for the decree-holder to do anything at all. For example, if the court has directed the issue of a notice under the provisions of Order 21, Rule 22 and before such notice is actually issued further proceedings are stayed, it is obviously for the Court of its own motion as soon as the bar is removed to issue the notice. Again if the judgment debtor after receipt of such notice has been granted time to file objections and before that time has expired further proceedings are stayed, the next step after the removal of the injunction would lie with the judgment-debtor”. The learned Judges thus held that the rusult is that when a decree-holder files a petition asking the court that a pending case may be proceeded with, the court should inquire whether there is in fact such a case pending or not if there is, the decree holder obviously entitled to go on with it. If there is not, the application is clearly misconceived and would fail. But in neither case can any question of limitation arise.

51. In Lal Pasi v. Ramsaran Lal Chowdary AIR 1925 Patna 298 the question was whether an application by the decree-holder was necessary to put law again in motion and whether it should be filed within the period of limitation prescribed by Article 181. Ross, J., observed, it is argued for the respondent that the present application should be treated as a continuation of the previous application ……… But in my view there must be some limitation to the continuation of execution proceedings and the limitation would appear to be imposed by Article 181. This rulling was followed in Bibi Hajo v. Har Sahay Lal (12) A.I.R 1926 Patna 62. The appellant obtained a rent decree against respondents on 2nd April 1917 which was affirmed on appeal on 12-9-1917. Execution proceedings were first instituted in 1918 but were dismissed. A second application was made on 23-5-1919 and certain properties of the judgment, debtor were attached and proclaimed for sale on 15-9-1919, Mean, while the judgment-debtor Instituted a title suit O.S No. 136/1918 on 15-4-1918 in the Munsif's Court of Bihar against the decree-holders and others impugning the decree-holder's title to the land in respect of which the rent decree had been obtained and claiming, amongest other reliefs, a declaration that the rent decree was null and void. This part of his claim was rejected by the Munisif by his judgment dated 10th March, 1919. An appeal was carried to the Subordinate Judge of Patna and pending the appeal the judgment debtor obtained an order from the Subordinate Judge in September, 1919, granting an injunction restraining the sale in the execution proceedings until the disposal of the appeal then before him. On the 16th September, 1919, the Executing Court ordered the sale to be stayed until the disposal of the appeal before the Subordinate Judge in Suit No. 136 of 1918, and on the 13th November, 1919, the Executing Court passed an order in these terms; ‘let the case be dismissed at present’. The Subordinate Judge of Patna delivered his judgment on appeal in Suit No. 136 of 1918 on June, 9th 1920. He varied the decree of the Munsif in certain respects but affirmed that part of his decision which rejected the prayer for a declaration that the rent-decree was null and void. The effect of his decision was to declare that the judgment-debtor (the plaintiff in that suit) was not liable to pay rent until certain conditions had been fulfilled by the landlords. This decision, however, did not and could not effect the decree holder's right to the previous rent payable under the rent-decree of 1917 which still subsisted and was not declared null and void. The injunction which had been granted restraning the sale in execution pending the hearing of the appeal in Suit No. 136 thereupon automatically came to end. An appeal from the Subordinate Judge of Patna was preferred to the High Court, but no further application for an injunction restraining the execution proceedings was made. The High Court's decision was pronounced on the 18th January, 1923, restoring the decree of the Munsif and a further appeal under the Letters Patent was dismissed on the 10th May, 1923. The present execution case was instituted on the 7th August, 1923, which is more than three years from the date when the previous case was dismissed in November, 1919, and more than three years from the 9th June, 1920, when the injunction restraining execution came to an end. The learned Munsif in whose Court the present application was presented was of opinion that the operation of the injunction continued upto the date of the dismissal of the Letters Patent appeal in the High Court in 1923 and that the present application was not barred. The Subordinate Judge of Patna reversed the decision of the Munsif. Then the decree-holders have appealed to the High Court from the decision of the Subordinate Judge. On behalf of the decree-holders it was contended that the previous execution case was never finally dismissed and is still pending and that there is no limitation for an application to proceed with a case temporarily suspended. They further contend that it was the Court's duty to restore the case and call on the parties to proceed as the order of the 13th November, 1919, in the previous execution case was not a final dismissal of those proceedings.

52. The learned Judges held that the injunction was for a limited period only and expired at the termination of that period viz., when the appeal before the Subordinate Judge of Patna was disposed of. No fresh application was made and the injunction was never renewed. The learned Judges also felt that the effect of the Subordinate Judge's judgment in suit No. 136 was to suspend all payment of rents past and future including the rent covered by the previous decree. In taking this view he was again mistaken. The right to recover the rent included in the decree of 1917 could not be challenged in the subsequent title suit unless the decree itself was declared void, but this part of the claim was rejected throughout and once the injunction automatically terminated on the 9th June, 1920, there was no longer any bar restraining the decree-holder from proceeding with his execution. The effect of the order of the 13th November, 1919, was to dismiss the execution case then pending with an intimation that an application for renewal might be made if and when the obstacle should be removed. It was, however, for the parties to move the Court for a reinstatement if so advised. It is never the duty of the Court to initiate any proceedings on behalf of the parties. An application by the decree-holder was necessary to out the law again in motion and even if the present application should be treated as one in continuation of the previous application there must be some limitation for such a proceeding. Assuming that Article 182 of the Limitation Act does not apply, and it does not help the appellants, then Article 181 must be applicable and the period of limitation is three years from the date when the right to apply accrued. The right accrued in this case on the 9th June, 1920. when the injunction was removed and the present application of the 7th August, 1923, is time barred.

53. But in Banarsi Prasad v. Kirtyanand (8) the Division Bench took a different view. In that case the decree under execution was passed by the Subordinate Judge of Bhagalpur on 1st July, 1918, and in about April, 1928, it was brought on transfer to Monghyr where an application for execution was made on 10th April, 1928 certain properties seem to have been attached in execution of the decree, but a claim to the property preferred on behalf of an idol was allowed on 25th December, 1929, and apparently the execution could not pressed further. The decree-holder had to institute a suit under Order 21, Rule 63 for a declaration that the property, which he sought to attach and sell was in fact the property of the judgment debtor and liable to be sold for satisfaction of the decree. The suit was decreed on 20th September, 1932; and a week later, on 28th September, 1932 the present petition for execution was filed. The objection raised was that the application was barred under section 48 of the Civil Procedure Code. The learned Subordinate Judge held that as the decree-holder was prevented from executing the decree on account of the fraud of the judgment-debtor committed within 12 years of the date of the decree, the execution was not-barred. The fraud consisted in falsely setting up a claimant and thereby forcing the decree holder to fight out a Civil Suit. The judgment debtor has preferred this appeal. It seems that after the decree-holder was prevented from proceeding to sell the properly on account of the claim having been allowed, he sought execution of the decree by the arrest of the judgment-debtor and an application to this effect was made on 18th June, 1930. Some how or other this application was dismissed on 30th September, 1931, but this Court, ordered on 22nd March, 1933 the execution to be rivived, and in fact that application is still pending, and it has been kept in, abeyance till the present application for execution, which is the subject-matter of the appeal is disposed of the learned Judges held that a part, from the applicability of section 48 of the Civil Procedure Code; this application for execution, can safely be treated as a continuation of the application in which the property could not be sold on account of the claim having been allowed. This was exactly what was held in Rudra Narain Guria v. Pachu Maity (13) 23 Cal. 537. No doubt, the question before the Calcutta High Court, was not one under section 48 of the Civil Procedure Code but under the limitation Act. But the principle is exactly the same. There also a claim was allowed and the decree-holder has to institute a suit for a declaration of his right to execute his decree against the property. After the suit was decreed, the decree-holder filed a fresh application for execution. Their Lordships held that, that application must be treated as a continuation of the previous application, because the previous application Could not be proceeded with on account of bar having been placed by the allowance of the claim; and once the bar was removed that execution could proceed and the fresh application was nothing more than an application to revive the proceeding which had to be stopped. Taking any view of the case, namely, whether the exceptions mentioned in section 48 of the Civil Procedure Code are applied or the present application was treated as a continuation of the previous application the execution must proceed. The proceedings are not barred by limitation.

54. In Chatter Singh v. Kamal Singh (2) Full Bench though held that the Subordinate Judge is not justified to pass an order that the execution application should be struck off from the list of pending applications on 31-8-1920 and as such the application of 10-1-1923 was one made during the pendency of the execution proceedings and is not to be treated as a fresh application for execution finally it held that the application for rivival should be made within three years from the date when the obstacle was removed and in that case as the obstacle was removed on 6-7-1920 when the order of the High Court dismissing the suit which led to the suspension of the execution proceedings commenced by the application of 4-1-1916 was passed and consequently as the application for revival was filed on 10-1-1923 it was filed within three years and hence it was within the time prescribed under Article 181. The learned Judges also observed that the application for revival not being a fresh application for execution cannot be governed by Article 182 and there is not however any special Article which would apply except the omnibus Article 181 and when Article 181 applies the period of limitation is three years from the date when the bar to the executions was removed.

55. But the latter Full Bench of the same High Court in Bhan Datta v. Tulsa Kuer (4) held that an application for revival of execution proceedings after the bar imposed by the Court to these execution proceedings has been removed is not necessary and such a revival application need not be filed within three years from the date of the removal of the bar and the revival application is not governed by Article 181. The learned Judges also held that the Calcutta High Court in Kristo Kamini v. Girish Chandra (3), the Patna High Court in Banarasi Prasad v. Krityanand (8) and the Madras High Court in Pattannayya v. Pattayya (5) have taken the view which they have taken that Article 181 of the Limitation Act does not apply to an application to continue the execution petition which has been stayed. As the opinion of all these Courts has been that in such circumstances it is the duty of the Court to proceed suo motu and as such the question of limitation does not arise. The learned Judges therefore did not agree with the view taken by the Full Bench of the adllahabad High Court in Chattar Singh v. Kamal Singh (2).

56. The Division Bench of the assam High Court in Firm Ram Dahin v. Raghunadan (9) held that when a proceeding has not been finally disposed of in a judicial manner and has to be treated as pending, the Court will undoubtedly have the power to Take notice of it and dispose of it at any time. The bar of limitation cannot apply if the Court acts suo motu. If the proceeding can be revived and disposed of by the Court acting on its motion at any time, it would be anomalous to hold that the Court may not act on the motion of the decree-holder or the person concerned. I am also inclined to the view that Article 181, even though residuary, should apply only to applications not provided for elsewhere if they are substantive applications for relief. The law of limitation comes in when an aggrieved person first comes to the Court for relief. Article 181 is a part of it and ought to apply only when relief is first claimed by a substantive application. Where the application merely asks for the disposal of a pending proceeding not judicially disposed of, no question of limitation should arise, for in such a case, the obligation to dispose of the pending proceeding does rest on the Court. In this view of the matter, the application cannot be thrown out on the ground of limitation.

57. But the Madras High Court maintained uniformity and consistency on this aspect.

58. In Chalavadi Kotaiah v. Alimelamma (14) (1907) 31 Mad. 71 and Subbacharier v. Muthu Veeran Pillai (15) (1912) 36 Mad. 553. it was held that if an execution application is pending, a subsequent application is not an application under Article 181, but an application asking the Court to continue the proceedings in a pending application. In Ayissa Umma v. Abdulla (16) AIR 1924 Mad. 176, it was held that an order of dismissal of an execution petition for statistical purposes did not amount to a dismissal of the petition, but that the petition should be considered as pending, one capable of revival. In Pattannaiah v. Pattaiah (5) it was held that if the executing court orders that the petition be lodged or recorded or struck off such an order is not one sanctioned by the court and it only amounts to this: “Petition is adjourned sine die”. In this view, the petition of 1915 is still on record of the execution court and the petition of 1921 is not a further application for execution nor is it an application to revive that of 1915: for that is still on the file and no application is required to revive an application which is pending it is an incorrect use of the language to speak of reviving a petition which has not been dismissed. If the application has been improperly dismissed an application would be necessary to revive it viz., where the dismissal is not on the merits or for the default of the decree-holder, but for statistical purposes or on account of obstruction which would take time to remove. As the application of 1915 is still pending the application of 1921 was intended to call the attention of the execution court to the fact that the execution application had to be proceeded with. If a Court lodges or records an execution application it should be regarded as pending. There will be no time limit for asking the Court to proceed with it When a Court keeps the matter pending, the party, should not Suffer by reason of the dilatoriness of the Court or by an action of the Court not sanctioned by the law. The remedy to prevent long pendency of applications for execution is to adjourn applications from time to time and to have them brought up for orders. If that is done, the Court would be in a position to know whether the execution could be proceeded with or not, and as soon as the obstruction is removed, the Court would be able to proceed with the execution according to law.

59. In Venkata Subbayya v. Venkanna (7) it was contended on behalf of the judgment-debtor that it was necessary for the decree-holder to file an application to revive the original execution petition which had been struck off and that application for revival must be filed within three years from the date on which impendiment to the continuance of the original execution petition had been removed i.e 31-1-1941, the date on which the decree was scaled down. The basis of this argument is the application of Article 181 of the Limitation Act. Their Lordships held that the answer to this contention is that there is no question of reviving an execution petition which legally must be deemed to be dead. It may be that when as in the case in Suppa Reddiar…(Defendant-Counter-Petitioner) v. Avudai Ammal…(Assignee-Petitioner) .* (17) (1904) 14 M.L.J 401 : ILR 28 Mad. 50 an execution petition is dismissed on some ground or other, but subsequently that dismissal turns out to be wrong and the decree-holder becomes entitled to have the dismissed execution petition revived, then the application must be made for revival and such an application might well fall within Article 181 of the present Limitation Act (Article 198 of the Previous Act). In this case, however, E.P No. 338/1939 was not dismissed nor could it have been lawfully dismissed. There was no default on the part of the decree-holder and the Court did not intend by the words struck off, to finally dispose of the execution petition. It must be deemed to have, been alive all the time and all that the decree-holder presumably did in E.A No. 1314/1944 was to request the Court to take up petition and proceed with the further execution. Article 181 will not have any application to such a request.

60. Thus it is clear that the Madras High Court has been consistently taking the view stated above that the subsequent application cannot be treated as fresh application and is not governed by Article 181 of the Limitation Act it should be regarded as an application to bring the notice of the Court that obstruction against the execution has been removed and it should therefore proceed with the execution. This view was also followed by the Calcutta High Court in Kristo Kamini v. Girish Chandra (3), the Patna High Court in Banarsi Prasad v. Kirtyanand (8) and the Allahabed High Court in Bhan Datta v. Tulsa Kuer (4) and also by the Assam High Court in Firm Ram Dahin v. Ragunandan (9).

61. The Supreme Court also took the same view in S.K Sahga v. Kishore Khan (18) AIR 1959 S.C 809. Their Lordships held; that if the application for execution was made in a pending execution proceeding, no question of the application of Article 182 arises. A right to continue a proceeding which is pending is a right which arises from day to day and no question of any bar of limitation with regard to the enforcement of such a right arises. Before the Supreme Court the contention that the decree was barred by limitation long before the order for its transfer was made, was raised. It was contended that Article 182 of the Limitation Act governed the case and the application for its execution had been made beyond the time prescribed. The High Court held that Article 182 of the Limitation Act had no application to the present case and that no question of limitation arose “for the execution proceeding in Purnea Court is merely a continuation of the execution proceeding pending before the Collector of Banaras” Their Lordships held that in their opinion the High court was right in taking that view and observed that it is quite clear that if the application for execution was made in a pending execution proceeding, no question of the application of Article 182 arises. It has long been recognised by the Courts in our country that a right to continue the proceeding which is pending is right which arises from day to day and no question of any bar of limitation with regard to enforcement of such a right arises: See Kedar Nath Dutt v. Harra Chand Dutt (16) ILR 8 Cal. 420 and Subba Charier v. Muthuveeran Pillai (15). The question is was the application for execution which has resulted in the order under appeal one for continuing a pending execution proceeding? It is not disputed that all along since the decree was sent by the Special Judge to the Collector for execution and before that date the decree was not executable it has continuously been in execution under the provisions of the act by the additional Collector Banares, and that such execution proceeding was pending on the date of the present application for execution. The question thus is whether the execution proceeding started in the Court of the Subordinate Judge, Purnea, was a continuation of the execution proceeding by the additional Collector, Banares. Their Lordships held in the affirmative Section 14(7) of the act which said that an adjudication of the Special Judge was to be deemed to be a decree also provided that decree would not be executable within the United Province except under the provisions of the Act. The act provided that as against the properties within the United Provinces the decree could only be executed by the Collector on his own by the various methods provided. It is, therefore, clear that the only mode of execution of the decree within the United Provinces contemplated by the act is the execution by the Collector. The execution of the decree by the Collector within the United Provinces would thus be deemed to been execution under the Civil Procedure Code. The execution by the Collector is execution of what is a decree within the Court. When the decree is executed outside the United Provinces where, as already stated, it can be legally executed, the amount realised by the execution by the Collector has to be taken into account when the Subordinate Judge, Purnea has to decide the question whether the application for execution made to him is in continuance of an existing execution proceeding he has to recognise the proceeding before the additional Collector, Banares, as a proceeding in execution under the Code for it is so under the act. In doing this for the reasons earlier mentioned, he would not be giving any extra-territorial operation to the act. Thus the execution of the decree by the Collector must be deemed to be execution of the decree for all purposes and therefore an application made to the Subordinate Judge Purnea, for execution of the same decree while an execution proceeding was pending before the Collector, must be a continuation of the execution last mantioned. Hence no question of limitation arises in regard to such an application.

62. In the light of the above cited rulings, the legal position is now well settled as follows;— An order striking off or closed or dismissed a pending application for execution for statistical purposes is not recognised by law. It should be treated as a pending proceeding. If the execution cannot be proceeded with on account of an injunction or stay granted by a competent Court and consequently if the execution petition is treated to be infructuous and is dismissed, such an application also should be treated as a pending proceeding. The decree-holder is permitted to proceed with the execution after the obstruction or the bar is removed. After the bar against the pending execution proceeding is removed, the decree-holder is entitled to proceed with the execution at any time and no question of limitation arises or operates. There is no legal obligation on the part of the decree-holder to file an execution petition for revival of the original pending execution proceeding, Even if he files an execution petition it cannot be treated as a fresh application or an application to revive the original pending proceeding. It should only be taken as a reminder to the court to proceed with the execution which was kept pending all the while on account of the stay or injunction granted by a competent court. As the execution of a decree has been suspended for no fault of the decree-holder, he has a right to ask the court to revive and carry through the execution proceedings which have been suspended. In fact it is the duty of the court to revive the execution proceeding for proceeding with the execution as soon as the obstruction was removed or the stay was vacated. As the execution petition was struck off or closed or dismissed because of the stay or injunction, the court is not in a position to know when the stay or injunction was vacated and consequently cannot be in a position to revive it, of its own accord. Hence the decree-holder is permitted to bring to its notice about the fact that the stay or injunction has been vacated and the need to revive the execution petition to proceed further. The decree-holder cannot be found fault with for the delay in filing a petition to invite the attention of the court about the stay or injunction being vacated or obstruction being removed. In a case of pending execution petition, the decree-holder is not bound, in order to keep his decree alive, to make applications for execution within the period of limitation under Art. 181. When it is merely an application asking the Court to continue the earlier proceeding such an application falls outside the purview of either Article 181 or Article 182 of the Limitation Act. It is no doubt true that if the provisions of the Limitation Act do not apply to an application to set suspended execution proceedings in motion, it is possible that the disposal of these proceedings may be indefinitely delayed. This contingency can, however be avoided if the execution court refuses to stay proceedings sine die. When the execution could not be proceeded on account of interruption occasioned by the judgment-debtor or dilatory tactics played by him by obtaining temporary injunction or stay or on account of the executing Court passing an order not warranted by law and when the execution Court does not revive the execution, petition suo motu for, proceeding with the execution after all the impediments were removed the petition filed by the decree-holder requesting the Court to proceed with the execution after the obstruction was removed, cannot be objected to on the ground of long delay. The very fact that the Limitation Act does not provide a separate. Article prescribing the time limit for filing a petition in this regard makes it quite clear that the Legislature in its wisdom did not want to provide such an article in order to avoid lending a helping hand to these unscrupulous judgment debtors whose conduct is generally responsible for such long delays. Thus we hold that the execution petition E.P No. 27/1976. Is not barred by limitation.

63. The next question that requires consideration is Whether E.P No. 27/1976 is of the same nature, character and against the same persons.

64. The learned Advocate General contends that the decree-holder and the judgment-debtors in E.P No. 27/76 are different from the decree-holder and the judgment-debtors in E.P No. 16/1962 and hence it cannot be treated as having the same character and nature as that of original E.P No. 16/62. In support of his contention, the learned Advocate General relied upon the decision of the Supreme court in Venkanna v. Bangararaju. (9A).

65. In is true that Balayya is the decree-holder in O.S No. 5/1/1951 and he is shown as the decree-holder in E.P No. 16/1962 and defendants in the suit O.S No. 5/1/1951 were shown as judgment-debtors therein. In the E.P No. 27/1976 the assignee of a portion of the property which is the subject matter of the decree in O.S No. 5/1/1951 is shown as decree-holder, while Balayya and his legal representatives were shown as proforma judgment-debtors 1 to 7. Abdul Razak against whom the order in E.A No. 23/63 was passed and Brahmayya who is a party in O.S No. 155/70 are shown as judgment-debtors along with some others. In so far as relief sought for is concerned, there is no difference in both the execution petitions. Thus it is clear that there is no material difference in between the parties in both the execution petitions. Even in the case dealt with by the Supreme Court, the parties in E.P No. 58/1953 are different from the parties in E.P No. 13/1939 and the Supreme Court was of the view that the new parties added in E.P No. 58/1953 are either legal representatives of the deceased or the representatives of the party who has become insolvent and in the present E.P except a few, all the properties mentioned in the previous execution petition are mentioned. The Supreme Court thus held that merely because new parties were added in E.P No. 58/1953 it cannot be held that E.P No. 58/1953 is a fresh application.

66. It follows that if there is no material change or difference in the parties mentioned in both the execution petitions, the subsequent application cannot be treated as a fresh application. Hence the Supreme Court's decision cited above does not lend support to the contention of the learned Advocate General. Added to this, we have already held above that E.P No. 16/1962 was not disposed of judicially and hence the subsequent application i.e, E.P No. 27/1976 Is only on application to inform the Court that injunction was vacated and as such it is not an execution petition, though it, on its face, is in the nature of execution petition. If that be so, the Court can ignore the several particulars given in the application.

67. According to Sri Gururaja Rao, Ibrahim Khan purchased an extent of 1,224 sq. yards in S. No. 174 from Nalini Bai who purchased the said extent from the original decree-holder, Balayya and hence Ibrahim Khan is entitled to proceed with the execution as transferee of a portion of the subject-matter of the decree.

68. In the ensuing paragraphs, we will examine whether Ibrahim Khan really purchased the extent of 1,224 sq. yards and whether he has produced any documentary evidence or not and whether he proved his title in respect of the extent of 1,224 sq. yards, of land or not. Suppose we accept the contention of Sri Gururaja Rao, that Ibrahim Khan purchased an extent of 1,224 sq. yards is he entitled to proceed with the execution of E.P No. 16/1962 as a transferee even without obtaining permission from the Court?

69. This question was considered by this court in Satyanarayana v. Arun Naik (20) 1964 (II) An. W.R 81. In that case it was held that the transferee of the subject-matter of the decree can continue the execution petition if it is already filed by the transferor-decree-holder or can file a fresh execution petition on the ground that he is such a transferee under section 146 CPC. The learned Judge also relied upon the decision of the Supreme Court in Jugul Kishore v. Raw Cotton Co., Ltd., (21) AIR 1955 SC 376 in which it was held that there is nothing in Order 21, Rule 16, which expressly or by necessary implication precludes a person who claims to be entitled to the benefit of a decree under the decree-holder but does not answer the description of being the transferee of that decree by assignment in writing or by operation of law, from making an application for execution which the person from whom he claims could have made, and held that the Supreme Court applied section 146 CPC. and allowed the respondent Limited Company to continue the execution petition in that case by holding that in a case where Order 21, Rule 16 has no application, section 146 would apply. Hence Ibrahim Khan is entitled to prosecute the original execution petition E.P No. 16/1962, as a transferee of a portion of the property which is the subject-matter of the decree even without obtaining permission from the Court in this regard.

70. Thus the defects pointed out above do not affect the right of Ibrahim Khan to proceed with the original execution petition viz., E.P No. 16/1962. Hence the comment made against the maintainability or executability of E.P No. 27/1976 is devoid of any merit.

71. When E.P No. 27/1976 is only application to remind the court that the injunction restraining the decree-holder from proceeding with the Execution Petition No. 16/1962 is vacated and consequently the court should proceed with the execution petition 16/1962 what does it follow? The facts narrated above would show that the decree-holder filed E.A No. 23/1963 for the removal of the obstruction caused by Abdul Razak and that, that petition was contested by Abdul Razak and his two wives and two others and that petition was allowed and as against that order Abdul Razak filed a suit O.S No. 132/1968 and during the pendency of that suit Abdul Razak purchased, on 20-2-1971 the property which is the subject-matter of E.A No. 23/1963 and O.S No. 132/1968 under a registered sale deed Ex. A-98 from the decree-holder Balaiah. Perhaps Abdul Razak made this purchase in pursuance of terms of the compromise memo. Unfortunately there is no evidence to that effect, because the parties were not permitted to adduce evidence and hence abdul Razak did not go into the box to explain the circumstances under which he purchased the property under Ex. A-98. It is pertinent to point out here that though Ibrahim Khan claimed to have purchased an extent of 1,224 sq-yards under sale deed from Nalini Bai who in her turn purchased the same from the decree-holder Balaiah, Ibrahim Khan did not produce his sale deed but relied upon the sale deed Ex. A-1, which of course does not mention the name of Nalini Bai or her husband Sri G.N Haridas but mentions the name of Bansidar. In E.A No. 123/1973 filed by Ibrahim Khan in E.P No. 18/1973 for seeking permission from the Court to the prosecute the E.P as tranferee of a portion of the property which is the subject-matter of the decree in O.S No. 5/1/1951, Ibrahim khan states that the deceased decree-holder sold the land to the extent of 1224 sq. yards in Survey No. 174 at Panjagutta to one Smt. Nalini Bai wife of Sri Haridas for a valuable consideration through a registered sale deed dated 30-4-1969 and the said Smt. Nalini Bai sold the same into him through a registered sale deed dated 14-8-1970 and the original sale deed will be called for in due course of enquiry from the Court of the III Assistant Judge, City Civil Court, Hyderabad in O.S No. 203/1970 as the same was filed there as a security. It is therefore clear that Ex. A-1 is not the sale deed under which Nalini Bai purchased. In these proceedings i.e in E.A No. 95/1976 and E.A No. 101/1976 in which Ibrahim Khan is the respondent he did not chose to file the sale deed under which he purchased the property in question and also the sale deed under which Nalini Bai purchased. In the absence of the sale deeds it is very difficult for the Court to give any weight to his claim as to the title to the property in question. It is true that the V Additional Judge, City Civil Court, Hyderabad allowed the petition E.A No. 123/1973 filed by Ibrahim Khan granting permission to him to prosecute the E.P No. 18/1973 but he cannot take advantage of that order so far as these proceedings are concerned. Unfortunately the lower Court did not permit the parties to adduce evidence. Had they been permitted to adduce evidence, Ibrahim Khan could have opportunity to produce his sale deed or could have requested the Court to send for the said sale deed which is said to have been filed in O.S No. 203/1970 on the file of the III Assistant Judge, City Civil Court Hyderabad. He could have also examined his vendor Nalini Bai in support of his claim as to ownership of the extent of 1224 sq. yards in S. No. 174. Abdul Razak could also have the opportunity to cross examine them on all these aspects. The Court also have the benefit of arriving at the truth of the matters in issue.

72. Abdul Razak, the petitioner in E.A No. 101/1976 consistently claims that he took the land from the Sharfekhas and constructed malgies bearing Nos. 8-2-240 to 945 in S. No. 122 and he was paying rents to Sharfekhas. This plea he has taken in E.A No. 23/1963. In E.A No. 101/1976 he contends that he constructed the malgi bearing Nos. 6-3-687 and 6-3-688 in S. No. 174 on the land taken from Sharfekhas. In view of the mention of different malgi numbers in both the proceedings i.e E.A No. 23/1963 and E.A No. 101/1976, the learned Additional Judge held that the decision in E.A No. 23/1963 does not bind the petitioner. In E.A No. 101/1976.

73. It is true that he did not mention about the malgies bearing Nos. 6-3-687 and 6-3-688 in E.A No. 23/63. But he mentioned about the malgies bearing Nos. 8-2-240 to 245 in S. No. 122 and also malgi Nos. 6-3-687 and 688 in S. No. 174 in the suit O.S No. 132/68 which was filed by him as against the order in E.A No. 23/63. According to the averments in the plaint in O.S No. 132/68 it is clear that his claim is in respect of 500 sq. yards in which 414 sq. yards with malgies bearing Nos. 6-3-687 and 6-3-688 lie in S. No. 124 while 86 sq. yards with malgies bearing Nos. 8-2-240 to 245 lie in S. No. 122. The evidence brought on record in these proceedings make it abundantly clear that the decree-holder Balaiah after obtaining the decree in O.S No. 5/1/1951 levied execution under E.P No. 16/62 and the Court directed the Sharfekhas to deposit the amounts collected by it towards rents into the Court to the credit of the decree-holder Balaiah and also deposit into the Court the rental deeds. Accordingly the Sharfekhas deposited amounts as well as rantal deeds into the Court and informed its tenants that the decree-holder is the landlord in its place and they should pay rents to him. The decree-holder withdrew the amount so deposited into the Court and also obtained the rental deeds deposited by Sharfekhas in respect of the tenants. These facts thus establish that after the Sharfekhas surrendered their rights and interest in lands and malgies thereon in S. Nos. 122 and 174 to the decree-holder Balaiah, Abdul Razak and his wife would become tenants of the decree-holder Balaiah by attornment and hence the relationship of land-lord and tenant ordinarily would prevail between the decree-holder Balaiah and Abdul Razak and his people. But Ex. A-98 clearly shows that Abdul Razak purchased the property from the original decree-holder Balaiah under the registered sale deed the original of Ex. A-98. This transaction took place during the pendency of O.S No. 132 of 1968, which was filed by Abdul Razak as against the order in E.A No. 23/63 in E.P No. 16/62 directing Abdul Razak and his two wives not to cause obstruction to the decree-holder. As Abdul Razak purchased the property under Ex. A-95 he acquired title in respect of the same. In view of his acquisition of title under Ex. A-98, he felt that there is no necessity for him to prosecute his suit and hence got dismissed it. As he become title holder under Ex. A-98 in respect of the property in his occupation, the original decree-holder did not take further proceedings for his eviction from the property in his occupation. But Ibrahim Khan the respondent in E.A Nos. 95 and 101/76 filed E.P No. 27/76 and got an order for delivery of possession in E.P No. 27/76. The Executing Court even without giving notice to Abdul Razak passed order for delivery of possession and the bailiff in pursuance of such orders, dispossessed Abdul Kazak. We have already pointed but above that E.P 27/76 is not at all an execution petition and is only an application to ask the executing court to continue the execution of E.P No. 16/62. That being so, the order passed by the Court in E.P No. 27/76 directing delivery of possession without giving an opportunity to Abdul Razak to explain to the court as to his obtaining a sale deed from the original decree-holder and hance he is entitled to continue in possession has no legal effect. Further the order passed in E.P No. 27/76 cannot also be said to have been passed in E.P No. 16/62.

74. Sri Gururaja Rao contends that the sale deed Ex. A-98 is not genuine, true and valid and it does not effect the rights of Ibrahim Khan, the transferee of a portion of the property which is the subject matter of the decree in O.S No. 5/1/51 as he obtained sale deed even prior to Ex. A-98 from the original decree-holder in respect of 1224 sq. yards in S. Nos. 122 and 174.

75. Ibrahim Khan who claims title in respect of the land measuring 1224 sq. yards in S. Nos. 122 and 174 under a registered sale deed on 14-8-1970 from Nalini Bai who herself purchased the same from the original decree-holder Balaiah under a registered sale deed on 30-4-1969, did not produce those sale deeds in the enquiry in E.A Nos. 95 and 101/76. If Ibrahim Khan purchased an extent of land measuring 1224 sq. yards in S. Nos. 122 and 174 under a valid sale deed during the pendency of O.S No. 132/68 which was filed by Abdul Razak in respect of 500 sq. yards in his occupation in S. Nos. 122 ans 174 he acquires rights and interests only subject to the decision in O.S No. 132/68.

76. The learned Advocate General contends that Ibrahim Khan did not produce the sale deed under which he claims title and in the absenca of the proof of his title Ibrahim Khan cannot be deemed to have acquired any title in respect of the property in the possession of Abdul Razak which he obtained a valid title under Ex. A-98. We find force in this contention. Unless it is proved with satisfactory legal evidence that Ibrahim Khan purchased 1224 sq. yards in S. Nos. 122 and 174 from Nalini Bai under a sale deed and that Nalini Bai herself purchased the said property from the original decree-holder Balaiah under a registered sale deed as contended by him and unless those purchases are prior to Ex. A-98 and unless it is found that the rights and interests acquired by him under those sale deeds are not affected by Ex. A-98 though he purchased the said land during the pendency of O.S No. 132/68 which was filed by Abdul Razak for declaration of his title and injunction Ibrahim Khan cannot step into the shoes of the original decree-holder for proceeding E.P No. 16/62. As stated above Ibrahim Khan did not file his sale deed as well as his vender's sale deed to establish his title in respect of the property in the occupation of Abdul Razak. Unfortunately the lower Court did not direct its attention to this aspect and hence did not permit the parties to adduce evidence on all these aspects. As both parties attack their respective sale deeds and as evidence is not Brought on record on all these aspects, we find it difficult to give findings on all these aspects.

77. Regarding Brahmaiah the learned Advocate General contends that the order in E.A No. 23/1963 does not bind him as he is not a party in that proceedings. He also contends that the decree-holder or Ibrahim Khan who is said to be the transferee of a portion of the property in question has not filed any petition under Order 21 Rule 97 C.P.C against Brahmaiah for the removal of the obstruction caused by him similar to E.A No. 23/1963 in E.P No. 16/1962. He also contends that the decree-holder or Ibrahim Khan cannot take advantage of the compromise decree in O.S No. 155/1970, as the learned Chief Judge, City Civil Court held in A.S No. 123/1973, preferred by Brahmaiah and Abdul Razak and others that the compromise decree is inexecutable. He therefore contends that in those circumstances the dispossession of Brahmaiah from the land and the malgi in his occupation is illegal.

78. It is true that Brahmaiah along with others claimed in O.S No. 155/70 their title in respect of the land covered by Survey Nos. 122 and 174 out of which his claim is in respect of 450 sq. yards and the said suit was compromised and the terms of the compromise clearly shows that Brahmaiah and others were prepared to purchase from Balaiah, the decree-holder the extent of land in the occupation of each of the plaintiffs therein. In pursuance of the compromise memo filed by both parties the court dismissed the suit. But later Brahmaiah and Abdul Razak and nine others resiled from the compromise and filed E.A No. 60/72 attributing fraud played on the Court by the President of the Hut Dwellers Association in getting the compromise recorded in O.S No. 155/70. But the V Additional Judge, City Civil Court, Hyderabad dismissed the petition E.A No. 60/72. Aggrieved with the said order they preferred A.S No. 123/73 and the learned Chief Judge allowed the appeal holding that the decree passed in O.S No. 155/70 is inexecutable. As there was no Second appeal questioning the correctness of the judgment and decree passed in A.S No. 123/73 by Balaiah the defendant the decision in A.S 123/73 became final.

79. Though lengthy arguments were addressed with reference to case law on the effect of the compromise decree, we feel it not necessary to advert to that as it is unnecessary when the decision in A.S 123/73 became final. The result is that the compromise decree in O.S No. 155/70 is inexecutable. In follows that Ibrahim Khan cannot take advantage of the decree in O.S No. 155/70. If that be so, the parties are relegated to the position that prevailed prior to O.S No. 25/78 (O.S No. 155/70). Prior to O.S No. 25/68 (O.S No. 155/70) there was the order in E.A No. 23/63 in E.P No. 16/62 (Ex. B-2) and aggrieved with that order Abdul Razak filed the suit O.S No. 132/68. In those proceedings Brahmaiah is not a party and hence Ex. B-2 does not bind Brahmaiah Balaiah, the decree holder did not file any petition similar to E.A No. 23/63 under Order 21, Rule 97 CPC for the removal of the obstruction caused by Brahmaiah. For the first time Ibrahim Khan made his appearance in E.A No. 123/73 in E.P No. 18/73 in O.S No. 155/70 and in that E.A he impleaded Brahmaiah as respondent No. 9. Since the decree in O.S No. 155/70 was held by the learned Chief Judge in appeal A.S No. 123/73 as inexecutable, the E.P No. 18/73 has no legs to stand in the eye of law. Further it was dismissed for non-prosecution. There after Ibrahim Khan filed E.P No. 27/76 in which Brahmaiah was impleaded as a judgment-debtor. We have already shown above that E.P No. 27/76 cannot be treated as an execution petition and it is only an application to invite the attention of the executing court to proceed with the execution of E.P No. 16/62 as the injunction preventing E.P No. 16/62 from being proceeded with was vacated. In such case a the order passed in E.P No. 27/76 for delivery of possession even without giving notice to Brahmaiah cannot be regarded as a valid order in the eye of law. It cannot also be treated as an order passed in E.P No. 16/62. If the decree-holder feels that obstruction is caused by third party on his own account not through the judgment-debtor it is open to the decree-holder to file a petition under Order 21, Rule 97 CPC for the removal of the obstruction, Ibrahim Khan who is said to be the transferee did not file any such petition under Order 21 Rule 97 CPC for the removal of obstruction caused by Brahmaiah. When he did not file such a petition he is not entitled to dispossess Brahmaiah from the property in his occupation under an order in E.P No. 27/76 which is illegal even in this case, the learned Advocate General contended that Ibrahim Khah did not produce an iota of evidence to prove his title in respect of the property in the occupation of Brahmaiah and he cannot therefore the treated as transferee in the absence of proof of his title. He also contends that Brahmaiah perfected his title by adverse possession in respect of the property as he has been in the occupation and enjoyment of the property in question beyond the statutory period and there was never a proceeding questioning his enjoyment at any time prior to O.S No. 155/70.

80. Nothing is brought on record to show that the original decree-holder took proceedings against Brahmaiah in pursuance of the decree obtained by him in O.S No. 5/1/51. Unfortunately the lower Court did not permit the parties to adduce evidence to prove their respective claims. If parties had been permitted by the lower Court to adduce evidence they could have produced necessary evidence in support of their claims. In the absence of any evidence it is difficult for us to give a finding that Brahmaiah perfected his title by adverse possession and as such either the original decree-holder or Ibrahim Khan who is the transferee are not entitled to proceed against him by virtue of the decree in O.S No. 5/1/1951.

81. From our above discussion, it follows that in the absence of evidence we are not in a position to give findings on the following questions which are essential for the disposal of E.A Nos. 95 and 101 of 1976. The lower court also did not give findings on these aspects.

(1) Whether Ibrahim Khan purchased 1224 sq. yards in Serial Nos. 122 and 174 under any sale deed from Nalini Bai and whether Nalini Bai purchased the said land from the original decree-holder Balayya?

(2) Whether Ibrahim Khan can be regarded as a bona fide transferee and as such he is entitled to step Into the shoes of the decree-holder Balayya in respect of the extent of 1224 sq. yards?

(3) Whether Abdul Razak purchased the extent of 500 sq yards from the original decree-holder Balayya under the sale deed Ex. A-98 and whether it is true and valid?

(4) Whether Ibrahim Khan is entitled to remove the obstruction caused by Abdul Razak and his people in respect of 500 sq. yards in the occupation of Abdul Razak or whether Abdul Rezak is entitled to continue his possession as he acquired title in respect of the said land under Ex. A-98?

(5) Whether Abdul Razak perfected his title by adverse possession by the date of the order in E.A No. 23/1963 in E.P 16/1962?

(6) Whether Brahmayya perfected his title by adverse possession in respect of 405 sq. yards in his occupation in S. No. 174?

(7) Whether Ibrahim Khan is entitled to alienate a portion of the lands in question to the Municipal Corporation for widening the road and whether the petitioners in E.A Nos. 95 and 101 of 1976 are entitled to receive damages from Ibrahim Khan in respect of the said portion if Ibrahim Khan is found to have alienated that portion without any right?

82. The last question is whether the petitions E.A Nos. 95/1976 and 102/1976 should be enquired into and disposed of in accordance with the provisions of Rules 99, 100 and 101 of the amended Code of Civil Procedure or in accordance with the old Code of Civil Procedure and whether the executing Court can go into the question of title, rights and interests and give its decision on those questions while disposing of the said petitions.

83. Under the new Code the executing Court is given the power and jurisdiction to go into such questions and give its decision a if it is a suit and its decision will be treated as a decree. It is necessary to mention here the relavant provisions end their effect and implications. Rule 99 of Order 21 of the new Code deals with the dispossession by decree-holder. It reads as follows:—

99.(1) Where any person other than the judgment debtor is dispossessed of immoveable property by the holder of a decree for the possession of such property or, where such property has been sold in execution of a decree, by the purchaser thereof, he may make an application to the Court complaining of such possession.

(2) Where any such application is mode, the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained”

84. Order 21, Rule 100 deals with the order to be passed upon application complaining of dispossession. It reads as follows:—

“100. Upon the determination of the questions referred to in rule 101, the Court shall, in accordance with such determination.

(a) make an order allowing the application and directing that the applicant be put into the possession of the property or dismissing the application; or

(b) pass such other order as, in the circumstances of the case, it may deem fit.

85. Order 21, Rule 101 deals with the questions to be determined. It reads as follows:—

“101. All questions including questions relating to right, title or interest in the property arising between the parties to a proceeding on an application under Rule 97 or Rule 99 or their representatives, and relevant to the adjudication of the application, shall be determinated by the Court dealing with the application and not by a separate suit and for this purpose the court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions.”

86. Rule 103 reads as follows:—

“103. Where any application has been adjudicated upon under Rule 98 or Rule 100, the order made thereon shall have the same force and be subject to the same conditions as to an appeal or otherwise as if it were a decree.”

Rule 104 reads as follows:—

“104. Every order made under rule 101 or Rule 103 shall be subject to the result of any suit that may be pending on the date of commencement of the proceeding in which such order is made, if in such suit the party against whom the order under rule 101 or Rule 103 is made has sought to establish a right which he claims to the present possession of the property.”

87. The provisions of Rule 101 are comprehensive and mandatory. This rule clothes the court with the power and jurisdiction to determine all questions relating to title, right or interest in the property arising between the parties to a proceeding when an application is filed under rule 99 by the party who is dispossessed of immovable property by the holder of the decree. The rule also mandates that no separate suit need be filed for this purpose as the court is given the jurisdiction to decide all those questions. From this, it follows that the enquiry under this rule will be treated as if it is a trial in a suit in other words, the procedure prescribed for the trial of the suit under the Code will be the procedure that has to be followed in the enquiry to be conducted under this provision.

88. It is for this reason that Rule 103 categorically declares that the order passed under Rule 100 on the application filed under Rule 99 and enquired and adjudicated under Rule 101 shall have the same force and be subject to the same conditions as to an appeal otherwise as. If it were a decree.

89. A combined effect of the provisions of Rules 99 and 100 is that when in the course of execution the holder of a decree for possession of property dispossesses a person other than the judgment-debtor the affected person may apply under. Rule 99 for restoring him to possession. On his application the Court should investigate into all questions Including questions relating to right, title or interest in the property arising between the parties to the proceedings and determine them. The investigation, therefore, is not to be summary, but must be comprehensive. Under the old Code to the enquiry on the application filed under Rule 100 is only a summary one in order to satisfy whether the applicant was in possession on his account or on account of some one other than the judgment-debtor. This is because the aggrieved party was given the right or remedy to file a separate suit under Rule 103 (old) and establish the right which he claims to the present possession of the property. Rule 103 of the old Code does not apply unless an order under R. 101 (old) was passed on the application filed by the aggrieved party under Rule 100 (old) and there must been enquiry before a valid order can be made under that rule. Rule 103 (old), therefore, does not apply when the Court without passing any order refers to the applicant to a separate suit or when an order is passed without investigation on merits. But under the new Code the party who is aggrieved with the dispossession effected by the decree-holder need not file a separate suit as contemplated under 103 of the old Code, but is entitled to file an application under Rule 99 (new) for restoration of possession and get an adjudication from the Court by a comprehensive enquiry under Rule 101 (New) as contempleted in a suit into all questions relating to right, title or interest in the property. Thus this difference between the old Code and the new Code with regard to the enquiry is very material which cannot be lost sight of by the Courts holding enquiries under Rule 101.

90. It is, therefore, clear that the new Code gives the power to the executing Court to determine all questions of title, rights and interests in the property in dispute under the provisions of rule 101 if an application is filed under Rule 99 complaining of dispossession of the immovable property by the decree-holder and executing Court can pass an order after such enquiry under Rule 100 and that order would be treated as if it were a decree in a suit under Rule 163.

91. It is not in dispute that E.A Nos. 95/1976 and 101/1976 are pending on the date of the commencement of the amended Code. If that be so, Chapter V of the amended Code which deals with repeal and savings is applicable. Section 97 deals with the repeal and savings. According to Sec 97(1), any amendment made or any provision inserted in the Principal Act by a State Legislature or a High Court before the commencement of this Act shall, except in so far as such amendment or provisio is consistent with the provision of the principal Act as amended by this Act stand repealed.

92. Section 97(2) lays down that notwithstanding that the provisions of the act have come into force or the repeal under Sub-Section (1) has taken effect, and without prejudice to the generality of the provision of Sec. 6 of the General Clauses Act, 1897 (10 of 1897), (a) to (p)………(q) the provisions of Rules 31, 32, 48A, 57 to 59, 90 and 97 to 103 of Order XXI of the I Schedule as amended or, as the case may, be substituted or inserted by Section 72 of this Act shall, not apply to or affect (i) to (iii)…………

93. It is therefore, clear that the ameneded provisions of Rules 99, 100, 101 and 103 of Order 21 substituted or inserted by section 72 of the amendment Act 1976 are applicable to the proceedings in E.A Nos. 95/1976 and 101/1976 as they were pending on the date of the commencement of the amendment Act.

94. Sri Gururaja Rao as well as the learned Advocate General conceded this legal position.

95. Thus we finally, hold that Rules 99, 100, 101 and 103 of the new Code are applicable to the enquiry in E.A Nos. 95 of 1976 and 101 of 1976. The reference is answered accordingly.

96. The lower court did not address to this aspect and took the view wrongly that it need not go into the questions of title, rights or interests arising between the parties in the enquiry and disposed of the petitions summarily without permitting the parties to adduce evidence in support of their respective claims. As a comprehensive enquiry contemplated under Rule 103 is absolutely necessary to determine the questions of titile, rights and interests arisng between the parties, the parties should be permitted to adduce all such evidence as they deem it necessary. We, therefore, deem it desirable to set aside the orders passed in E.A Nos. 95/1976 and 101/1976 and remand the matter to the lower court with a direction that it should permit the parties to adduce evidence both oral and documentary on all the points framed above and give its decision. The order in E.A Nos. 95/1976 and 101/1976 is set aside and the matter is remanded to the lower Court for fresh disposal in the light of the directions made above. C.M.As are allowed costs of these appeals will abide the result of the E.As in the lower Court.

97. Pending enquiry by the lower Court, status quo shall be maintained in regard to the properties concerned in these appeals until further orders of this Court. Either party may move this Court for any directions if necessary. The lower Court shall dispose of these matters within not later than 4 months after receipt of this order and records.