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Venkappa And Others v. Lakshmikant Rao .
Factual and Procedural Background
The decree-holder obtained a decree on 7th Shahrewar 1328 F in the District Judge's Court, Gulbarga, against two persons (Rajappayya, now deceased and represented by his legal representative, and Rampayya). The decree was transferred to the District Court of Raichur for execution. On 16th Dai 1337 F the decree-holder filed an execution application seeking attachment and sale of specified movable and immovable properties; an attachment order was made on 29th Shahrewar 1337 F.
Subsequently the decree-holder applied for the arrest of the judgment-debtors under Section 299 of the Hyderabad CPC, alleging deliberate evasion of the decree. Judgment-debtors filed counters: one contested the decree-holder's right to seek arrest since attachment and an order for sale had already been made and not pursued; the other pleaded limitation, asserting the execution application was filed beyond the statutory period (alleging both that no execution application was filed within three years after transfer to Raichur, and that the earlier objection to execution had been decided on 11th Dai 1334 F).
Proceedings continued: on 23rd Ardhibehist 1339 F the decree-holder's advocate stated he did not wish to continue sale proceedings because of objections and because the decree-holder would instead apply for arrest; an order for arrest of one judgment-debtor was passed and the executing Court later (15th Mehir 1341 F) dismissed the execution application as barred by limitation. The Sadar Adalat and the Judicial Committee ultimately reversed that limitation finding, and the Judicial Committee held the decree-holder's application of 16th Dai 1337 F to be within time (final decision on 14th Isfaiidar 1350 F). The case returned to the executing Court.
After remand the decree-holder filed an application on 26th Azur 1352 F asking the old execution petition be taken on file and necessary orders issued. Notices were served; both judgment-debtors were set ex parte. The executing Court ordered attachment of properties on 24th Khurdad 1352 F and directed the decree-holder to file lists and processes. Objections were filed by the legal representative of judgment-debtor 1, contending the revival application was not competent and raising limitation under Section 262 of the Hyderabad CPC (corresponding to Section 48 Indian CPC). The executing Court in due course held the revival/renewal application to be made beyond 12 years and thus barred; the appellate Court disagreed and held the application within time. The disputed legal question was referred to a Full Bench by a Division Bench of the High Court. The Full Bench heard counsel and rendered the decision summarized below.
Legal Issues Presented
- Whether the decree-holder's application of 26th Azur 1352 F (seeking revival/continuation of earlier execution proceedings and attachment) was a "fresh application" made after the expiry of twelve years from the date of the decree and therefore barred by Section 262 of the Hyderabad CPC (corresponding to Section 48 of the Indian CPC).
- Whether the decree-holder had, by his statement and conduct when seeking arrest of the judgment-debtors, abandoned the earlier relief for attachment and sale of immovable property such that any later prayer for attachment must be treated as a fresh application.
- Whether an order of attachment, where no formal release or final order terminating attachment was made, continued to subsist so that subsequent proceedings for attachment were continuation rather than a fresh start.
Arguments of the Parties
Appellants' (Judgment-debtors') Arguments
- The decree-holder, by applying for arrest and expressly stating he did not wish to pursue sale proceedings (citing objections to the attached lands and their allowance), abandoned the relief for attachment and sale. Consequently, the later application of 26th Azur 1352 F must be treated as a fresh application.
- If the decree-holder voluntarily relinquished the attachment relief and then later applied again after the expiry of twelve years from the date of the decree, such subsequent application is barred by limitation under Section 262 of the Hyderabad CPC (Section 48 Indian CPC).
- The fact that an earlier order of attachment existed is irrelevant because no attachment was actually effected (no report of attachment was filed), and deliberate relinquishment converts any later attempt to attach into a fresh application.
- Reliance on Section 229 (and its explanation) of the Hyderabad CPC to argue that a decree-holder who applies for arrest effectively cannot continue sale proceedings if the judgment-debtor shows there is sufficient property; therefore the decree-holder chose arrest and abandoned attachment.
- Counsel also relied on Privy Council authority (Maharaj Bahadur Singh v. A.H. Forbes) for the proposition that where a decree-holder deliberately abandons the earlier position, the later application can be held to be a fresh one and barred by limitation.
Respondent's (Decree-holder's) Arguments
- The attachment of immovable properties did not cease: there was no court order releasing the properties from attachment. Absence of a formal release means the attachment continued to subsist.
- Even under Order 21, Rule 57 of the CPC, attachment made at the instance of the decree-holder ends only upon dismissal of the execution application for default; as there was no such dismissal, the attachment survived.
- Therefore the 26th Azur 1352 F application was not a fresh application but a continuation or revival of earlier execution proceedings, and Section 48 (Section 262 Hyderabad CPC) does not bar it.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Oudh Commercial Bank Ltd. v. Bind Basni Kuer, AIR 1939 PC 80 | Principle that the substance of an execution application, not its form, determines whether it is a fresh application; courts look to the character of the application on particular facts. | The Court relied on this principle to decide that the character of the 26th Azur 1352 F application must be judged by substance and antecedent proceedings, not by its formal label. |
| Thakur Parshad v. Fakir-ul-lali, 22 Ind App 44 (PC) | Privy Council view permitting the decree-holder the right to withdraw execution proceedings and acknowledging the Legislature contemplated a succession of applications. | The Court cited this to show a decree-holder can withdraw and later apply, subject to certain exceptions; it supported the proposition that withdrawal does not necessarily bar subsequent applications. |
| Sarju Prasad v. Sita Ram, 10 All 71 | Allahabad High Court view that Order 23, Rule 1 applied to execution proceedings (which Privy Council later dissented from). | The Court noted the Privy Council reversed this view, using that reversal to support the decree-holder's ability to reapply after withdrawal. |
| Kenaram v. Kailash Chandra, 18 Cal LJ 53 | High Court view that right to withdraw may be restricted where a third party has acquired an interest and would be prejudiced by withdrawal. | The Court cited this as illustrating the limited exceptions to the decree-holder's right to withdraw; it found those exceptions did not apply here because no third party had acquired an interest. |
| Kishun Dutt v. Gulabchand, AIR 1948 Pat 113 | Patna High Court view (followed with similar reasoning) that withdrawal may be disallowed where it prejudices third parties or causes injustice to judgment-debtors. | Used to show recognized exceptions to withdrawal rights; Court held those exceptions were inapplicable on the facts of this case. |
| Maharaj Bahadur Singh v. A.H. Forbes, AIR 1929 PC 209 | Privy Council decision where subsequent application marked a substantial departure and was held to be a fresh application barred under Section 48. | The Court distinguished this authority on its facts, explaining that in the present case proceedings relating to attachment did not come to an end and no final terminating order was made, so the Maharaj Bahadur Singh rationale did not apply. |
| Raja of Ramnad v. Velusami Tewar, AIR 1921 PC 23 | Privy Council authority supporting the view that an objection grounded on a fresh-application limitation, if not raised at the time of notice/service, may be precluded later (constructive res judicata/estoppel principle). | The Court relied on this decision to hold that the judgment-debtors, having not raised the limitation point at an earlier stage, could not be permitted to raise it later. |
| Venkata Lingamma v. Dhanrajgirji, AIR 1929 Mad 826 | Madras High Court decision supporting the same view as Raja of Ramnad on the preclusion of belated limitation objections. | The Court cited this case in support of its view that a plea of limitation, not raised earlier after service of notice, could not be allowed to be raised later. |
Court's Reasoning and Analysis
The Full Bench examined the sequence of events and the legal character of the applications before it, applying the following analytical steps (as reflected in the opinion):
- Identification of the statutory bar: the Court noted Section 262 of the Hyderabad CPC (corresponding to Section 48 of the Indian CPC) bars orders on a "fresh application" to execute a decree made after the expiry of twelve years from the date of the decree, except in certain cases (e.g., injunction decrees). Thus the central factual-legal inquiry was whether the 26th Azur 1352 F filing was a "fresh application" in the statutory sense.
- Substance over form: relying on the Privy Council authority (Oudh Commercial Bank v. Bind Basni Kuer), the Court emphasized that the substantive character of an application, not its form or label, determines whether it is a fresh application. The particular circumstances of the case must therefore be examined.
- Examination of antecedent proceedings: the Court reviewed the history — an attachment order dated 29th Shahrewar 1337 F; subsequent steps, including notice issuance and proceedings going on into 1339 F; the decree-holder's later statement he would not pursue sale because of objections and would seek arrest; and the absence of any formal release or final terminating order ending the attachment proceedings.
- Consideration of abandonment/withdrawal: the Court acknowledged that a decree-holder can abandon or withdraw execution relief and later file afresh (Thakur Parshad v. Fakir-ul-lali), but also observed recognized exceptions (where third parties have acquired interests such that withdrawal would prejudice them). The Court found those exceptions did not apply here because no one had acquired such an interest at the time the decree-holder chose to apply for arrest.
- Effect of the decree-holder's statement: the Court concluded that the decree-holder's statement that he did not wish to pursue sale proceedings, made in the course of continuing proceedings, did not amount to a final abandonment that terminated the earlier attachment proceedings. There was no court order releasing the property, no dismissal of the execution application, and no report that attachment had been effected and then ended.
- Continuity of attachment proceedings: because the attachment order remained unrevoked and the executing Court had not passed final orders terminating those proceedings (in fact the Court adjourned and did not order release), the Court treated the later application as a continuation or concurrent step in existing execution proceedings (including a prayer for simultaneous execution by attachment and by arrest), not as a fresh application under Section 48/262.
- Estoppel against belated limitation pleas: the Court held that because the judgment-debtors did not press a limitation objection at the earlier stage when they could have (after service of notice on the earlier execution application), they could not raise it later — a principle supported by Privy Council and High Court authorities (Raja of Ramnad v. Velusami Tewar; Venkata Lingamma v. Dhanrajgirji). The Court treated the failure to raise the point as a form of constructive estoppel.
- Distinguishing adverse precedent: the Court distinguished Maharaj Bahadur Singh v. A.H. Forbes — where the Privy Council found a deliberate abandonment and a substantial departure from the original application — on the ground that in the present case the earlier attachment proceedings were not terminated by any final order and thus the subsequent filing did not represent that same kind of substantial departure.
- Conclusion from these steps: on the facts, the 26th Azur 1352 F application was not a fresh application within the meaning of Section 262/48; it was rightly treated as within time and as a continuation or revival of earlier proceedings.
Holding and Implications
Holding:
APPEAL DISMISSED
The Full Bench held that the decree-holder's application dated 26th Azur 1352 F could not be regarded as a "fresh application" barred by Section 262 of the Hyderabad CPC (Section 48 Indian CPC). The Court concluded the application was within time and dismissed the appeal with costs (advocate's fee Rs. 50).
Direct consequences and implications:
- The decree-holder's revival/continuation application was held to be valid and within the statutory period; the executing Court's order that had treated the application as barred was set aside by the appellate Court and the Full Bench affirmed that view.
- The judgment-debtors' contention that the decree-holder had abandoned attachment such that any later application would be fresh was rejected because there was no final order releasing the attachment and proceedings had not been terminated.
- Because the Court grounded its decision on the facts and established authorities, the opinion does not purport to establish a novel legal principle beyond applying existing precedent (the Court distinguished adverse authority rather than overruling it). In other words, no new precedent was announced beyond the application of established rules to the facts before the Court.
Srinivasa Chari, J.:— This appeal which arises in execution proceedings case has been referred to the Full Bench by a Division Bench of this Court by its referring order dated 14-6-1952. The appellants before us are the judgment-debtors and the respondent the decree-holder. The respondent obtained a decree on 7th Shahrewar 1328 F in the Court of the Dist. Judge, Gulbarga against two persons, (1) Rajappayya, who is now dead but is represented by his legal representative and (2) Rampayya.
2. The decree was transferred to the District Court of Raichur for execution and the decree-holder applied for execution in the executing Court on 16th Dai 1337 F. In this application the decree-holder prayed for an attachment and sale of certain move-able and immovable properties mentioned in the list annexed to the execution application. An order of attachment was made by the Court on 29th Shahrewar 1337 F as would appear from p. 29 of the printed paper book.
3. Subsequently on some date in Meher 1337 F the decree-holder applied for the arrest of the judgment-debtors under Section 299 of the Hyderabad CPC alleging that the judgment-debtors were deliberately avoiding execution of the decree, judgment-debtor 2 filed a counter to the petition for arrest stating that the decree-holder could not apply for arrest of the judgment-debtors, inasmuch as he had already attached the properties of the judgment-debtors” and an order for sale of these properties had been made by the Court and in spite of such an order the decree-holder did not take further steps to get the properties sold.
4. He also stated that the decree could be satis-filed by sale of the properties attached; that, there fore, the application for arrest could not be granted. Judgment-debtor 1 also filed a counter to the application for arrest on 1st Farwardi 1338 F objecting to the arrest of the judgment-debtors and pleading that the application was barred by limitation. Limitation was pleaded on two grounds:
(a) that the decree had been transferred for execution to the Court at Raichur on 13th Mehir 1333 F and no application for execution was filed within three years of that date and
(b) that the objection of the judgment-debtor to execution was decided by the appellate Court the Sadar Adalat, Gulbarga on 11th Dai 1334 F and that therefore the application filed on 16th Dai 1337 F was barred.
5. The proceedings were at this stage when it would appear from the proceedings of the Court of 23rd Ardhibehist 1339 F printed at p. 24 of the Paper Book that the Vakil for the decree-holder made a statement that he does not wish to carry on the sale of the properties that were attached on 29th Shahrewar 1337 F because objection petitions were being filed with regard to the lands that were attached and those objection petitions were allowed, and because the judgment-debtors were unnecessarily putting the decree-holder to inconvenience. The Court passed an order that the file be put up on 27th Khurdad 1339 F. Order was passed for the arrest of judgment-debtor 2. On 15th Mehir 1341 F the District Judge of Raichur accepted the contention of the judgment, debtors and held that the application of 16th Dai 1337 F was barred by limitation and dismissed the same.
6. The decree-holder preferred an appeal to the Sadar Adalat and the Sadar Adalat confirmed the order of the lower Court. On appeal to the High Court, the High. Court by its order dated 15th Bahaman 1349 F reversed the decisions of the Courts below and held the application to be within time.
7. Against this judgment of the High Court the judgment-debtors preferred an appeal to the Judicial Committee and the Judicial Committee finally upheld the judgment of the High Court on 14th Isfaiidar, 1350 F. The result was that the case came back to the executing Court for further proceedings as the application of the decree-holder of 16th Dai 1337 F was held by the highest Court as being within time.
8. After the case came back to the executing Court the decree-holder filed an application on 26th Azur 1352 F stating that the Judicial Committee had held his application of 16th Dai 1337 F to be within time. He prayed that the old execution application be taken on file and necessary orders be issued. Notice was issued to the judgment-debtors. J.D No. 1 was absent in spite of service of notice and he was set ex parte on 23rd Farwardi 1352 F.
9. Substituted service was ordered against judgment-debtor 2 and so both were set ex parte. The Court passed an order for attachment of the property as prayed for by the decree-holder and the decree-holder was asked to file a list of the properties and the necessary process. This order was passed on 24th Khurdad 1352 F. At this stage, on 29th Shahrewar 1.352 F the legal representative of judgment-debtor 1 filed an objection petition contending that the decree-holder should have filed a substantive application for execution, a mere application with a prayer that the old petition be revived, was not competent, and no orders for attachment could be passed on the same.
10. When this application was filed the judgment-debtors raised the plea that the application was barred by limitation under Section 262 of the CPC. The Court passed an order on 24th Khurdad 1352 F of dering the attachment of the ??? as prayed for and calling upon the ??? to file a list of the properties and deposit necessary costs. Subsequently on 25th Ammbd 1353 F the Court passed a further order stating it the properties, a list of which had already been filed by the decree-holder be attached.
11. Evidently no attachment was effected and no renort of the properties having been attached was submitted to the Court. It would appear from there cord that on 1st Fanvaidi 1353 F the Court passed an order holding that the prayer made on 26th Azur 1352 F renewing the relief for the attachment of the properties was made beyond the period of 12 years after the date of the decree & that, therefore, it was barred by ??? under Section 262 of the Hydeabad CPC (Section 48 of the Indian CPC).
12. The decree-holder appealed against this order of the executing Court and the appellate Court disagreed with the executing Court and allowed the appeal holding that the application was within time. The judgment-debtor has, therefore, come up now in appeal to the High Court and the learned Judges who heard the appeal thought it desirable to refer the whole case to the Full Bench inasmuch as the question involved was an important one. We heard the arguments of the learned advocates for the parties.
13. Sliri Gopalrao Ekbote for the appellants, contends that the decree-holder, when he prayed for the arrest of the judgment-debtors abandoned his-prayer for the attachment of the immovable properties of the judgment-debtors. Inasmuch as the decree-holder had abandoned one relief, the application that he made subsequently on 26th Azur 1352 F for the attachment of the properties after the case came back from the Judicial Committee must be deemed to be a fresh application and as this was made after the expiry of 12 years after the date of the decree, the application was barred by limitation under Section 262 of the Hyderabad CPC.
14. He argued that the fact that an order of attachment was made would not make any difference inasmuch as no attachment was effected and if under these circumstances the decree-holder deliberately-chose to give up the relief relating to attachment of the properties and subsequently made a prayer for the attachment of the properties, the second application cannot but be regarded as a fresh application. It was urged that the application, in so far as it related to the attachment of immovable properties, must be regarded as having come to an end by reason of the relinquishment of the decree-holder.
15. This point was further elaborated by the argument that Section 229 of the Hyderabad CPC contained an explanation wherein it was stated that when ait application for arrest was made by a decree-holder, if the judgment-debtor could satisfy the Court that there was sufficient property against which the decree-holder could proceed and his decree could be satisfied, that would be a sufficient ground for not ordering arrest.
16. Basing his argument on this explanation, Shri Ekbote contended that the decree-holder was aware of this provision of law viz., that he could not get an order of arrest while at the same time continue to have the sale proceedings and, therefore, he preferred to abandon the prayer with regard to the attachment and sale of immovable properties and confined himself to the arrest of the judgment debtors.
17. It was also urged that the decree-holder had stated in so many words that he does not want to pursue the proceedings relating to the attachment and sale of the immovable properties as there had been a number of objections filed by the judgment-debtors in respect of these properties and those objections were allowed. These factors according to the learned advocate, conclusively proved that the decree-holder abandoned the relief with regard to the attachment and sale proceedings.
18. The learned advocate for the respondent, Shri Vaidya, urged that under no circumstances could it be considered that the attachment of the immovable properties had ceased, for there was no order of the Court releasing the properties from attachment.
19. He argued that unless and until there was an order passed by the executing Court directing the release of the properties from attachment, the attachment cannot be regarded as having discontinued; even under the provisions of O. 21, R. 57 of the CPC, an attachment on a property made at the instance of the decree-holder would come to an end only when the execution application is dismissed for default; in this case there was no dismissal of the execution application as such, and, therefore, no question of the attachment ceasing would arise.
20. Section 262 of the Hyderabad CPC, corresponding to Section 48 of the Indian CPC, says that where a fresh application to execute a decree is made after the expiry of 12 years: from the date of the decree sought to be executed no order shall be made thereon unless it be a decree granting an injunction. It would therefore follow that S. 48 would be a bar where the execution application is a fresh application and not one in continuation of or by way of revival of a previous application.
21. It should be noted that the words “fresh application” have been substituted for the words subsequent application occurring in the old section. Therefore, what is contemplated under this section by the words “fresh application” is a substantive application for execution and not one which is merely ancillary or incidental to a previous application, that is to say, if the decree-holder seeks to set the court into motion to take further proceedings in respect of an application already pending or where the application has been recorded or where the execution proceedings have been suspended by reason of appeal or other proceedings, it would not) be regarded as a fresh application.
22. The Court would have to consider the substantive nature of the allegation. The form of the application is not what would matter. Therefore, the question of the character of the application has to be decided upon the particular circumstances of each case and when determining the character of the application, the Court would be guided by the substance of the application and not by its form. This principle is well established by the decision of the Privy Council in the case of — ‘Oudh Commercial Bank Ltd. v. Bind Basni Kuer’, AIR 1939 PC 80 (A).
23. The contention of the learned advocate for the judgment-debtors is that although the decree-holder applied for attachment of the immoveable property of the judgment-debtors he gave it up and abandoning his relief by way of attachment of immoveable property sought for the arrest of the judgment-debtors and as such his application praying for the arrest of the judgment-debtors should be regarded as a fresh application.
24. We may point out here that it is open to a decree-holder to ask for simultaneous execution praying for the attachment of property as well as for the arrest of the judgment-debtor. On 29th Shahre war 1339 F attachment of immoveable property was effected.
25. The proceedings of 23rd Ardhibehist 1339 F (printed at p. 24 of the Paper Book) would show that the decree-holder stated to the Court that he did not want the sale proceedings of the immoveable property to be continued because the same properties had been attached in other decrees and objection petitions were filed and those objections, had been allowed the D.H chose to apply for arrest. The argument that is further advanced is that there was no application for attachment pending in the Court as it has been given up.
26. We may straightaway point out that it is open to a decree-holder to abandon any relief or withdraw his execution application and it he withdraws he is not debarred from tiling a fresh application. The question whether the decree-holders has an absolute right to withdraw his execution application, and whether such right is subject to the control of the Court under certain circumstances, has come up for consideration before the Courts. In this regard it might be useful to refer to the-decision of the Privy Council, in the case of — Thakur Parshad v. Fakir-ul-lali, 22 Ind App 44 (PC)(B).
27. Their Lordships of the Privy Council reversed-the decision of the Allahabad High Court in — ‘Sarju Prasad v. Sita Ram’, 10 All 71 (C). The Allahabad High Court held that O. 23, R. 1 of the CPC, applied to execution proceedings and as such where the decree-holder withdrew the execution application without permission to file a fresh execution petition he could not do so. This observation of the Allahabad High Court was dissented from by the Privy Council. Their Lordships-observed:
“And it is clear both from the Code and from the provisions of the Limitation Act, 1877-. that the Legislature contemplated that there might be a succession of applications.”
28. The High Courts of Patna and Calcutta have adopted the view that the right of the decree-holder to withdraw is only subject to this limitation that in cases where a third party has entered on the scene or has acquired an interest in the property sold in execution of the decree the Court might disallow the decree-holder from withdrawing if by such withdrawal the third party is prejudiced or if, that would cause injustice to the judgment-debtor is vide — ‘Kenaram v. Kailash Chandra’, 18 Cal LJ 53 (D) and — ‘Kishun Dutt v. Gulabchand’, AIR 1948 Pat 113 (FB)(E).
29. Applying the above principle to the above case, at the stage at which the decree-holder is said to have stated to the Court that he did not want, the sale proceedings to go on, no one had acquired any interest. Therefore the principle of those cases, cannot apply to this case.
30. It is a fallacy, in our opinion, to regard the application of 26th Azur 1352 F as a fresh application because the relief by the decree-holder for execution of the decree by attachment of the immoveable property of the judgment-debtors was made in the first instance, and when he found that no useful purpose would be served by pursuing the property he asked for a different relief viz. the arrest of the judgment-debtors. Therefore, in, our opinion, the application of 26th Azur 1352 F could not be regarded as a fresh application having regard to the antecedent proceedings.
31. It is essential for the operation of S. 481, that the application should have been made for the first time after the expiry of 12 years. This is not the case here. It is clear from the record that the border of attachment was made on 30th Shahrewar 1337 F and the further proceedings relating to issue of notice to the judgment-debtors continued till 1339 F. That would show that the proceedings relating to attachment and sale of immovable properties were still going on, when the decree-holder asked for arrest of the judgment-debtor. This must be regarded as a prayer for simultaneous execution.
32. It would also appear from the proceedings of the Court dated 23rd Ardhibehist 1339 F that when granting the prayer for the arrest of the judgment-debtors the Court did not order the release of the attachment but merely adjourned the case. Therefore there was no fresh prayer. Even if this application is regarded as a fresh prayer for attachment, we would only regard it as a superfluity which would not matter. Therefore until final orders were passed the attachment must be regarded as subsisting.
33. Our attention was drawn to a decision of the Privy Council in the case of — ‘Maharaj Bahadur Singh v. A.H Forbes’, AIR 1929 PC 209 (F) and on the strength of this case it was argued that in this case the decree-holder had abandoned the attachment of the immovable property in Mehir 1337 F and therefore, if he made an application in 1352 F it must be regarded as a fresh application. We may point out that the facts of the case which went up to the Privy Council and relied upon by the advocate for the appellants are distinguishable from the facts of the case now before us.
34. Their Lordships were clearly of the opinion having regard to the circumstances of that case that the decree-holder deliberately abandoned the position that there was a charge on the Patnitenure; that the subsequent application marked a substantial departure from the original application and in that view they held that the subsequent application could not be regarded as a continuation of the previous application and therefore the subsequent one was held to be barred under Section 48 of the CPC. That case cannot help the appellants. The distinguishing feature in the case before us is that the proceedings relating to attachment and sale of immovable property did not come to an end. There was no specific order of the Court terminating the proceedings. Where no final orders are passed by the Court, the execution application H would be held to be pending.
35. It would be useful to state here at this stage that when the application in Meher 1337 F was made no objection was raised by the judgment debtors basing it upon S. 48. Although the principle of res judicata as such may not apply to execution proceedings an objection which could have been raised by the judgment-debtors at that time not having been raised, that plea could not be raised by reason of the application of the principles of constructive res judicata.
36. Where after the service of notice of an application for execution by the decree-holder the judgment-debtors do not raise the plea of limitation stating that the application is a fresh one presented after the expiry of 12 years from the date of the decree, they cannot be allowed to raise the same at a subsequent stage. We are supported in this view by the decision of the Privy Council in the case of — ‘Raja of Ramnad v. Velusami Tewar’, AIR 1921 PC 23 (G). The Madras High Court has also taken the same view in the case of — ‘Venkata Lingamma v. Dhanrajgirji’, AIR 1929 Mad 826 (H)
37. We are, therefore, of the opinion that the application of 26th Azur 1352 F cannot be regarded as a fresh application so as to attract the provisions of Section 48 of the CPC. The decree-holder's application must, therefore, be held to be within time. The result is, the appeal is dismissed with costs. Advocate's fee Rs. 50/-.
V.R.B
38. Appeal dismissed.
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