An execution petition dismissed for the decree-holder's default in paying the sale batta amounts to a final disposal of the petition and a subsequent application for the same purpose will constitute a fresh application within the meaning of Section 48 C. P. C.

( 1 ) THIS appeal is filed by a decree-holder against an order dismissing his execution petition as barred under Section 48 C. P. C. having been filled beyond 12 years from the date of the decree.

( 2 ) THE main point for consideration in this appeal is whether the unregistered execution petition filed on 2-11-1963 is barred by the 12 years rule under Section 48 C. P. C. The decree under execution was passed on 11-4-1936 and hence the period of 12 years expires by 11-4-1948. But the execution of the decree was stayed for a certain period and it is common round that if the period during which execution is stayed I taken into account, the previous execution petition which was within time, is E. P. 4/51. The said execution petition was dismissed on 3-11-1960 for the default of the decree holder as he failed to pay the sale batta. The main point argued on behalf of the appellant-decree-holder is that the previous E. P. 4/51 was not finally disposed of but that its dismissal on 3-11-1960 was only for statistical purpose, that the unregistered execution petition in question should be regarded as one for continuation of the earlier E. P. 4/51, and that it is not a fresh application for execution as contemplated by Section 48 C. P. C. The Court below having dismissed the previous execution petition on 3-11-1960 for non-payment of batta, made a further order that the attachment will continue. On the Strength of this direction to continue the attachment it is strenuously contended on behalf of the decree-holder that the court did not intend to dispose of the execution petition finally though it was expressly stated as having been dismissed for the default of the decree-holder in paying the sale batta. On the other hand, in is contended on be half of the judgment-debtor that the order dismissing the previous execution petition for the decree-holders default operates as a final disposal of the execution petition and that is not open to the decree-holder to regard the subsequent execution petition either as a revival or a continuation of E. P. 4/51, notwithstanding the order of the court below that attachment was continued. Hence the decision in this appeal turns upon the property interpretation to be given to the order passed on the previous E. P. on 3-11-1960.

( 3 ) UNDER Section 48 C. P. C. no order for execution of a decree shall be made upon any fresh application presented after the expiration of 12 years from the date of the decree sought to be executed. The scope of the expression "fresh application" has now been fairly well settled by numerous decisions of the High Court and it would be futile to make a detailed reference to the same. The principle which is accepted is that if the provisos execution petition which was within time was not finally disposed of but merely closed or struck off for statistical purposes, the subsequent application for execution, though filed beyond the period of 12 years, is regarded as an application merely to continue or to revise the previous application. The question whether a previous application for execution was finally disposed of or not expends upon the circumstances under which the application is disposed of. In other words, the nomenclature employed by the courts in disposing of the execution petition, e. g. , closed, struck off or dismissed. is not the determining factor but the question has to be decided on a consideration of the circumstances under which the execution petition is disposed of. It is not however necessary for the purpose of this case to consider the various cases in which it was held that the disposal of an execution petition was only for a statistical purpose. So far ass the case on hand is concerned, the question is, what is the effect of the order passed by the court, on the previous execution petition? It is now settled by the authority of the Full Bench decision of the Madras High Court in Sundaramma v. Abdul khader, AIR 1933 Mad 418 = ILR 56 Mad 490 (FB)