GOPAL RAO ERBOTE, J.

( 1 ) THIS Letters Patent Appeal has come to us on a reference made by our learned brothers Narasimham and Parthasarathi, JJ. The learned Judges thought that the main issue and the only question involved in the appeal is"whether the amendment by including a new prayer, which was tantamount to a fresh execution petition. could be ordered after 12 years disregarding the provisions of Section 48 of the Civil Procedure Code. "they noticed that conflict of views exists in the Judgments of Jorama v. Latchanna Dora, AIR 1940 Mad 19 and Venkata Lingama Nayanim v. R. Venkata Narasima Rayanim, 1946-2 Mad LJ 383 = (AIR 1947 Mad 216 ). They consequently felt that the point involved being one of sufficient important and as the fate of the appeal depended in their view upon the answer to the said question, they referred the appeal for decision to the Full Bench.

( 2 ) THE facts relevant for the purpose of appreciating the contentions raised before us lie in a narrow compass and are to a large extent (not ?) disputed. The respondent obtained a money decree in O. S. No. 30 of 1949 on the file of the Subordinate Judges Court, Nellore against the appellants, judgment-debtors on 30-10-1950.

( 3 ) THE decree-holder filed E. P. No. 160 of 1951 for execution of the said decree. By attachment and sale of a house property of the judgment debtors, the decree-holder realised Rs. 2946-4-0. The E. P. was dismissed recording part satisfaction of the decree.

( 4 ) THE decree-holder then filed E. P. No. 21 of 1961. He showed in his Execution Petition Rs. 26. 977-45 Ps. as the amount due. He requested the Court to arrest the 1st judgment-debtor and to detain him in civil prison.

( 5 ) IN O. S. 383 of 1954, the judgment-debtor obtained a money decree on the basis of accounts of partnership on 29-8-1960. The judgment-debtor filed a counter in E. P. No. 21 of 1961 contending that the decree-holder was aware of the decree passed against him in O. S. 383/54. He further averred"this respondent submits that under the provisions of the Civil P. C. , the present decree-holder is to given credit to the amount decreed against him in O. S. 383 of 1954, Kavali District Munsifs Court. This respondent submits that after satisfaction of the present decree, now under execution, some more amount will be due by the present decree-holder to this respondent under the decree in O. S. 383/54".

( 6 ) THE judgment-debtor also filed a memo of calculation on 5-9-1961. In the said memo, the judgment-debtor showed amount of Rs. 30,302-0-2 due under the decree passed in O. S. 383 of 1954 from the decree-holder.

( 7 ) THE decree-holder filed a memo on 2-9-1961 agreeing to adjust and set off the decretal amount of O. S. 383 of 1954 which by then stood at Rs. 17,126-22 Ps. The executing court seems to have recorded the adjustment and set off of Rs. 17,126-22 Ps. on account of the decree passed in O. S. No. 383 of 1954. The E. P. was then continued for the recovery of the balance amount.

( 8 ) SINCE the judgment-debtor was resisting his arrest, the Executing Court after a proper enquiry reached the conclusion that"there is no proof to show that first judgment-debtor has got the means to pay the balance of the E. P. amount and his evading payment. "the learned Judge held that"there ate no grounds for sending the first judgment-debtor to civil prison for realisation of the balance of the E. P. amount. "

( 9 ) AGGRIEVED by that order of the learned Subordinate Judge made on 24-6-1963. the decree-holder preferred C. M. A. No. 220 of 1964 to this Court.

( 10 ) WE have already noticed that the judgment-debtor had obtained a money decree against the decree-holder in O. S. No. 383 of 1954 on 29-8-1960. As the judgment-debtor, in that case was not awarded interest from the date of the suit to the date of realisation of the amount but was granted interest only from the date of the decree, he preferred finally S. A. No. 367 of 1964 in this Court. This appeal was allowed partly on 19

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