Maintainability of simultaneous execution petition in both the Court.

This is an appeal by the decree-holder in O. S. No. 781 of 1933, District Munsiff Court, Nellore, against the order of the District Judge, Nellore., dated 7th October, 1947, in A.S. No. 111 of 1947 on his file, setting aside the Kavali District Munsiff’s Order, dated 13th December, 1946, in E.P. No. 48 of 1946, in O. S. No. 781 of 1933, and dismissing the execution petition as barred by limitation, as the Order of the District Munsiff, Nellore, dated 27th January, 1936, in Exhibit P-5(a), directing simultaneous execution in his court as well as the District Munsiff Court, Kavali, had been passed without notice to the judgment-debtors and was illegal and would not serve as a step-in-aid of execution and save limitation regarding the subsequent execution petitions, including E.P. No. 48 of 1946, under the rulings in Gurudas Adbya v. Jandra Narain Batchi and others1 and L.H. Kanhere v. V.G. Virkhar and others2.

I have perused the entire records, and heard elaborate arguments on both sides, as there is no direct decision of this court on the legal point involved, where the lower courts have given contradictory decisions.

The facts were briefly these. The appellant had, on 24th January, 1934, got a decree for Rs. 2,640-8-0, on a letter executed by the 1st defendant, against both the defendants, together with costs of Rs. 338-3-0. As usual, his task began only with the decree. In spite of some twelve execution petitions, and the lapse of nearly 16 years, the appellant-decree-holder, has, admittedly, not recovered a pie. He. filed E.P. No. 530 of 1934 (Exhibit P-1) in the Nellore District Munsif Court on 6th April, 1934 for the arrest of the 2nd defendant. He was not found for arrest, and the execution petition was dismissed on 6th July, 1934. E.P. No. 177 of 1935 (Exhibit P-2) was filed on 26th January, 1935, in the District Munsif Court, Nellore, for transmitting the decree in the District Munsif Court, Kavali, for execution. The order for transmission was passed on 1st February, 1935. E.P. No. 204 of 1935 on the file of the District Munsif, Kavali, was filed on 9th May, 1935 for attachment and sale of the 2nd defendant’s immovable properties. The immovable properties of the 2nd defendant were attached, but the execution petition was not pressed, and it was dismissed on 3rd August, 1936. E.P. No. 357 of 1935 on the file of the District Munsif Court, Kavali, was filed on 25th July, 1935 for the attachment and sale of the 1st defedendant’s immovable properties. The immovable properties were attached and brought to sale on 17th February, 1936. As there were no bids, the execution petition was struck off on 20th February, 1936. Meanwhile, on 24th January, 1936, the decree-holder filed E.P. No. 147 of 1936 (Exhibit P-5) in the Nellore District Munsif Court praying for the attachment by prohibitory order, of the produce realised by the Receiver in O.S. No. 898 of 1929 on the file of the District Munsif Court, Gudur. Along with this execution petition he filed also a petition E.P. No. 145 of 1936 (Exhibit P-5 (a)) for executing the decree simultaneously in the District Munsif Court, Nellore, and in the District Munsif Court, Kavali. Simultaneous execution was “permitted” by the District Munsif, Nellore, on 27th January, 1936 in Exhibit P-5(a) without issuing any notice to the judgment-debtor. But E.P. No. 147 of 1936, District Munsif Court, Nellore, came to nothing, and that execution petition was dismissed on 4th February, 1936. Thereafter, of course, the decree-holder filed execution petitions in both the courts, as he had been allowed to execute his decree simultaneously in both the courts. He filed E.P. No. 82 of 1939 on the file of the District Munsif Court, Nellore (Exhibit P-6) on 30th January, 1939, for attachment and sale of the movables of both the judgment-debtors. That execution petition was dismissed on 14th March, 1939 for non-payment of batta. The decree-holder filed E.P. No. 91 of 1939 on the file of the District Mun