Venkatarama Ayyar, J.-This appeal arises out of proceedings in execution of the decree in O.S.No.6 of 1936 on the file of the Court of the Subordinate Judge of Kozhikode. That was a suit instituted by one Appunni Nayar against the appellant for recovery of amounts due under three promissory notes and it was decreed on 30th March, 1936. There were various proceedings in execution of that decree but we are concerned only with the last of them, E.P.No.71 of 1943. In this execution application the immovable properties of the judgment-debtor were attached but before they could be brought to sale the decree-holder died on 20th May, 1945. Thereafter on 6th June, 1945, the following order was passed in E.P.No.71 of 1943:

“The decree-holder is reported dead. No sale taken place. Petition closed. No.L.R. impleaded”.

Meantime a suit had been instituted for partition of the properties belonging to the tarwad of the decree-holder, O.S.No.32 of 1941, on the file of the bub-Court Kozhikode. In that suit a receiver was appointed on 27th March, 1945, for the tarwad properties and it is common ground that the decree in O.S.No.6 of 1936 is one of the properties covered by the receivership order. On 16th June, 1948, the receiver filed E.P.No.192 of 1948 out of which the present appeal has arisen and in that he prayed for attachment and sale of the immovable properties of the judgment-debtor. It may be mentioned that the properties sought to be sold under this execution application are the very properties which were attached in E.P.No.71 of 1943.

The judgment-debtor resisted the application on the ground that on the date on which it was filed more than 12 years had elapsed from the date of the decree and that it was consequently barred under section 48, Civil Procedure Code. The Subordinate Judge overruled this objection. He held that no final order had been passed in E.P.No.71 of 1943 and that, therefore, it must be deemed to be pending and that the present application was in substance one to continue those proceedings and that, therefore, it was not barred under section 48, Civil Procedure Code. In this view he directed the execution to proceed. It is against this order that the present appeal has been brought by the judgment-debtor.

Mr. N.R. Sesha Iyer, the learned advocate for the appellant has raised two contentions. Firstly he urged that the order in E.P.No.71 of 1943 and dated 6th June, 1945, is a final one and that it really amounts to one of dismissal and that, therefore, the present application dated 16th June, 1948, could not be treated as its continuation. Now it is well settled that when an execution application is closed or struck off such an order does not terminate the proceedings. The decree-holder having died and the legal representatives not having come on record the order closing the petition, must be construed not as one of dismissal but as one of disposal for statistical purposes. In Damodara v. Official Receiver, Krishna1, an execution application was closed and it was held that the subsequent application for execution of the decree was one really to continue the previous petition and not a fresh application. The present case is directly governed by this decision. The order dated 6th June, 1945, cannot be construed as one of dismissal for any default on the part of the decree-holder because he was dead. The following passages from the judgment of the Privy Council in Debi Bakhsh Singh v, Habib Shah2 are in point:

“It requires no words of their Lordships to show the inapplicability of Rules or Orders dealing with the case of the non-appearance of a suitor to the situation which arises when the suitor is dead. The principle of forfeiture of rights in consequence of a default in procedure by a party to a cause is the principle of punishment in respect of such default, but the punishment of the dead, or the ranking of death, under the category of default, does not seem to be very stateable”.

The order dated 6th June, 1945, refers expr

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