An order of the executing court closing an execution petition for statistical purposes does not amount to a dismissal of the petition and the execution petition remains pending in the eye of law.

The order of the executing court dismissing the petition for execution is unsustainable. The petitioner obtained a decree against the respondents on 30-11-1963. Execution proceedings were filed on 22-4-1975. It was taken on file on M.P. SC No. 74 of 1975. The property of the judgment-debtor was brought to sale, but the sale was adjourned on the ground of no bidders. The judgment-debtor filed a suit C.S. No. 83 of 1977 and prayed for an order of injunction in I.A. 446 of 1977 restraining the decree-holder from proceeding further with the execution of the decree. On 28-2-1978 an order of injunction was passed. Pursuant to the said order of injunction, the exceeding court closed the execution petition on 30-8-1976, but directed the attachment to continue. The suit O.S. No. 83 of 1977 was dismissed on 11-3-1982. On 27-3-1982, the present execution petition was filed by the decree-holder and numbered on S. P. No.17 of 1983. The decree-holder also filed a memo in the executing court to the effect that the prior E.P. is revived and the present E.P. is only a continuation of the prior R.P.

2. The executing court taking a wrong view that the execution proceeding are barred by limitation dismissed the same. Aggrieved by the said order, the decree-holder has preferred this revision petition.

3. Even on statement of facts given above, it is clear that the execution proceedings are not barred by limitation. On 30-8-1978, the executing court had no jurisdiction to close the R.P. As there was an order of injunction passed by a civil Court restraining further proceeding in the E.P. the executing Court ought to have kept the petition pending. But for statistical purposes it had closed the E.P. and at the same time directed the attachment to continue. That itself shows that the executing court did not intend to terminate the proceedings, but thought of keeping the execution proceedings alive and pending, though for the purpose of record it did not want to show the execution petition of the year 1975 as pending. Thus the order dated 3-8-1976 will not have the effect of dismissing the execution petition filed by the decree-holder. In the eye of law, E.P. 74 of 1975 is still pending on there was no termination of the same in accordance with law.

4. The Supreme Court has in Venkata v. Banararaju, 1964 AIR(ST) 1454 ruled that the legal position in cases like this will be that the execution proceedings is pending. The relevant passage in the judgment of the Supreme Court in as follows at page 1456 :

"The question, therefore is whether E.P. 58 of 1953 is a fresh application within the meaning of Sec. 48 of the Code. The answer to this question mainly turns upon the question whether the previous application i.e., Ex. P. 13 of 1939, was finally disposed of by the executing court from the narration of facts given by us earlier it is clear that the said execution petition was 'closed' for statistical purposes. As the High Court stayed the execution pending the appeal filed by the judgment-debtors, the decree-holders were not in a position to proceed with the execution petition, and, therefore, it was closed. Some argument was raised on the question whether the said execution petition was closed for statistical purpose or was dismissed and it was contended that under the Code of Civil Procedure there was no power conferred upon a court to close execution proceedings for statistical purpose, and that even if such an order was made, it must be deemed to be an order dismissing the execution petition. The actual order dated December 28, 1948 has not been placed before us. But in R.P. 58 of 1953 in Col. 6 thereof it is mentioned that S. P.

No. 13 of 1959 was closed on December 28, 1948. In the counter-affidavit filed by one of the judgment-debtors it is stated that E. P. 13 of 1939 was dismissed on December 28, 1948 and not merely closed. After the disposal of the appeal by the High Court and before the filing of E. P. 56 of 1933, the decree-holders file