simultaneous execution praying for the attachment of propertyas well as for the arrest of the judgment-debtor - Maintainable - objection which could have been raised by the judgment-debtors at the time of filing the execution - not having been raised, that plea could not be raised by reason of principles of constructive res judicata

Citation

AIR 1956 HYDERABAD 7

FULL BENCH

HYDERABAD HIGH COURT

MOHD. AHMED ANSARI , J. and A. SRINIVASA

CHARI , J. and JAGAN MOHAN REDDY , J.

Appeal No. 1059 of 1954-3/4 of 1952 D/- 18 - 2 - 1954

Venkappa and others Appellants v. Lakshmikant Ra Respondent

(A)Civil P.C. (5 of 1908), S.48 - Fresh application - Meaning of.

Section 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. What is contemplated under this section

by the words "fresh application" is a substantive application for execution and not one which as merely

ancillary or incidental to a previous application. 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.

AIR 1939 PC 80, Foll.

 (Para 8) 

Anno : AIR Com. : C.P.C., S. 48, N. 7, Pts. 2 to 4

(B)Civil P.C. (5 of 1908), S.51, O.21 R.30 - Simultaneous execution.

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.

 (Para 9) 

Anno : AIR Com., C.P.C., S. 51 N. 2 Pt. 3; O. 21 R. 30 N. 4 Pt. 1

(C)Civil P.C. (5 of 1908), S.48, O.21 R.10, O.23 R.1 - Withdrawal of execution application -

Filing of fresh application.

It is open to a decree-holder to abandon any relief or withdraw his execution application and if he

withdraws his execution application he is not debarred from filing a fresh application. The right of

the decree-holder to withdraw is only subject to tills 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.

19 Ind Cas 904 (Cal) and AIR 1948 Pat 113 (FB), Foll.

 (Paras 10 , 11) 

Where the relief by the decree-holder for execution of the decree by attachment of the immovable

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 and the Court granting the prayer for arrest did not order the release of

the attachment and later on the decree-holder applied for renewing the relief for the attachment of

properties.

Held that the application for the renewal of the relief for attachment could not be regarded as a fresh

application.

 (Paras 11 , 15) 

Anno : AIR Com. : C.P.C., S. 48 N. 7; O. 21, R. 10 N. 1 Pt. 2; O. 23 R. 1 N. 14 Pt. 1a

(D)Civil P.C. (5 of 1908), S.48 - Application should be after twelve years.

It is essential for the operation of S. 48 that the application should have been made for the first time

after the expiry of 12 years.

 (Para 12) 

Anno : AIR Com. : C.P.C., S. 48, N. 6

(E)Civil P.C. (5 of 1908), S.48 - No final orders passed by Court - Application would be held

to be pending.

 (Para 13) 

(F)Civil P.C. (5 of 1908), S.11, S.48 - Applicability of S.11 to execution proceedings - Failure to

raise pica that application was fresh application presented after twelve years.

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 the time of filing the execution, application

not having been raised, that plea could not be raised by reason of the application of the principles of

constructive res judicata. Thus 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.

 (Para 14) 

Anno : AIR Com. : C.P.C., S. 11 N. 23, Pt. 53, S. 48 N. 17

Cases Referred Chronological Paras

(A) (V 26) AIR 1939 PC 80 : 66 Ind App 84 (PC) 8

(B) ('95) 22 Ind App 44 : 17 All 106 (PC) 10

(C) ('88) 10 All 71 : 1888 All WN 1 10

(D) ('13) 18 Cal LJ 53 : 19 Ind Cas 904 10

(E) (V 35) AIR 1948 Pat 113 : 26 Pat 601 (FB) 10

(F) (V 16) AIR 1929 PC 209 : 118 Ind Cas 268 (PC) 13

(G) (V 8) AIR 1921 PC 23 : 48 Ind App 45 (PC) 14

(H) (V 16) AIR 1929 Mad 826 : 123 Ind Cas 23 14

Gopal Rao Ekbote, for Appellants; Vinayak Rao Vaidya, for Respondent.

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