1. These three miscellaneous appeals arise in the following circumstances. On 30th September 1924, the Maharaja of Dumraon obtained a decree for costs against a large number of persons including Ram Sarup Singh and Parmanand Singh. The decree amounted to Rs. 2632-4-0. An appeal against the decree was dismissed for default by this Court on 6th January 1926. After several infructuous attempts to execute the decree, the decree-holder presented an application for execution which was numbered as Execution Case No. 96 of 1937. The petition of execution stated that the person against whom execution was sought was Kesho Prasad Singh. Kesho Prasad Singh is one of the two sons left by the judgment-debtor Ram Sarup Singh who died before this application for execution was presented. Kesho Prasad Singh objected to the execution on the ground that some of the judgment-debtors had applied to the proper authority in the United Provinces under the United Provinces Encumbered Estates Act of 1934 for apportionment of their liability for the decree for costs. This objection was overruled and has given rise to Miscellaneous Appeal No. 379 of 1938 on behalf of Kesho Prasad Singh.
2. In 1937 the decree-holder applied for the attachment of a sum of Rs. 2000 odd which was in deposit in this Court to the credit of Kesho Prasad Singh and his brother Madho Prasad Singh. As Madho Prasad Singh was not a party to the execution proceedings, the executing Court held that the decree-holder was entitled only to attach half the amount. On 9th May 1938, the decree-holder then applied to bring Madho Prasad Singh on to the record of the execution case.
3. This, it will be noticed, was more than 12 years from the date of the dismissal of the appeal by this Court. The application to bring Madho Prasad Singh on to the record of the case was dismissed on the ground that it was a fresh application within the meaning of Section 48 of the CPC, presented more than 12 years after the date of the decree sought to be executed. The order disallowing the application, to bring Madho Prasad Singh on to the record has given rise to Miscellaneous Appeal No. 46 of 1939 at the instance of the decree-holder. On 27th July 1938, the decree-holder applied to amend his execution petition by adding to it a prayer for the attachment and sale of certain immovable properties belonging to Kesho Prasad Singh. This application was also disallowed on the ground that it was a fresh application made more than 12 years, after the date of the decree sought to be executed and was, therefore, barred by S. 48. This has given rise to Miscellaneous Appeal No. 47 of 1939 at the instance of the decree-holder.
4. I will deal with the question which arises in respect of Miscellaneous Appeal No. 47 first. There is a decision of this Court, and there are decisions of at least four other High Courts and of the Privy Council, that an application by which it is sought to proceed against the properties other than those mentioned in the first execution petition is a fresh application within the meaning of S. 48 and that no such application is entertain able after 12 years from the date of the decree sought to be executed. The decision of this Court is 8 Pat 462.1 The decree under execution in that case was a money decree passed on 8th February 1915. After various applications for execution the last application was made on 14th January 1927, praying for the attachment and sale of certain move-able properties belonging to the judgment-debtor. As no moveable properties belonging to the judgment-debtor were found the decree-holder, on 1st August 1927, made an application to be permitted to proceed against certain immovable properties of which he gave a list. He prayed that the original application for execution might be amended in accordance with the terms of the application of 1st August 1927. It was held that this was a fresh application within the meaning of S. 48 and was not entertainable as it was made more than 12 years from the date of the decree of 18th February 1915.
5. The decision of the other High Courts will be found in 53 All 419,2 50 Cal 743,3 52 MLJ 1374 and AIR 1928 Lah 808.5 The Privy Council decision is AIR 1929 PC 209.6 Mr. Mullick on behalf of the decree-holder referred to the decision of a single Judge of the Lahore High Court in AIR 1926 Lah 544.7 In that case a money decree had been passed on 4th March 1913. The last application for execution was dated 17th March 1924, praying for the arrest of the judgment debtor. On 9th November 1925, the Judge of the Small Cause Court with was executing the decree dismissed the petition on the ground that the judgment-debtor had not been arrested and that it was useless in his opinion to take any further proceedings. Against that order of dismissal, the decree-holder applied to the Lahore High Court. The learned Judge of the High Court setting aside the order of the Small Cause Court Judge said:
Under all the circumstances the lower Court should have allowed the decree-holder to exhaust all lawful means of realizing his decree before finally dismissing the application for execution.
6. As I understand the judgment of the learned Judge, what was meant was that the executing Court should not have been hasty to dismiss the pending application for the arrest of the judgment-debtor merely because the decree-holder had not been able to find him but should have allowed the application to remain pending so that the decree-holder would have had a further opportunity of ascertaining the whereabouts of the judgment-debtor. I would dismiss Miscellaneous Appeal No. 47 with costs. With regard to Miscellaneous Appeal No. 46, there does not seem to be any difference in principle between an attempt to proceed at a late stage in the execution proceedings against properties which it was not sought to proceed against in the original application and an attempt at a late stage to proceed against a person other than the person against whom it was originally sought to execute the decree. Reference was made by Mr. Mullick on behalf of the decree-holder to a decision of the Bombay High Court in AIR 1931 Bom 425.8 There an application had been presented within time against the judgment-debtor. On the death of the latter, more than 12 years after the date of the decree, it was sought to continue the proceedings against the legal representative of the deceased. It was held that it was not a fresh application within the meaning of S. 48. That case is distinguishable from cases of the kind before us. Here the original judgment-debtor died before the expiry of 12 years from the decree. The decree-holder chose to initiate execution proceedings against Kesho Prasad only. Now he seeks to proceed against Madho Prasad. His present application cannot be viewed as merely ancillary to the original application.
7. The decision in 11 Pat 5469 is also distinguishable. There, the substantial question was whether an application for amendment of a petition for execution was entertainable. The application was within 12 years from the date of the decree and not, as in the present case, beyond the period of 12 years. As there appears to be no difference in principle between the application to implead Madho Prasad Singh and the application to proceed against the immovable properties of Kesho Prasad Singh, I would dismiss also Miscellaneous Appeal No. 46 with costs. In Miscellaneous Appeal No. 379 of 1938 we have been asked to take steps to protect the appellant judgment-debtor from the possibility that as a result of the proceedings in the United Provinces under the Encumbered Estates Act, 1934, the decree-holder may succeed in realizing more than he is justly entitled to under the decree for costs. Before us there are no materials indicating that the decree-holder has either realized more than he is entitled to or that he intends to do so. The proceedings in the United Provinces are beyond our jurisdiction and we are not in a position to stay them. This appeal must also fail and be dismissed with costs.
D.S/R.K
8. Appeals dismissed.