Right of decree holder to proceed afresh with the execution petition.

This is a civil miscellaneous second appeal filed by one Satyanarayana, the fourth respondent in E.P. No. 228 of 1946, which was merged in the revived E.P. No. 283 of 1943 in O.S. No. 173 of 1931 on the file of the District Munsif’s Court, Repalle, against the orders of both the lower Courts overruling his objections and directing the execution petition to proceed and his properties to be sold for realising the decree amount.

The facts were briefly these. B. Nagabushanam, the decree-holder, obtained a simple money decree on a promissory note for Rs. 600 dated 6th February, 130, against one B. Ramayya, the executant and his surety P. Sitaramaswami, in O.S. No. 173 of 1931 The decree amount was scaled down, and, after several E.Ps., with which we are not now concerned, E.P. No. 283 of 1943 was filed by the decree-holder on 17th September, 1943, for recovering more than a thousand rupees due under the scaled down decree with subsequent interest and costs. That E.P. was undoubtedly filed within time under section 48, Civil Procedure Code, as well as under Article 181 of the Indian Limitation Act. That E.P. shows Ramayya, the first defendant, as alive, and not as dead, though it is represented to me now by the learned counsel for the appellant, relying on an observation in paragraph 2 of the judgment of the trial Court, and in paragraph 2 of the judgment of the lower appellate Court in A.S. No. 84 of 1948, that the first defendant was dead already by the time of the execution petition and that his legal representatives have not been brought on record till now. There is, however, no formal or legal proof that the first defendant is really dead. Whatever that be, the decree itself is ah old one dated 17th September, 1931 and E.P. No, 283 of 1943 was filed on 17th September, 1943, the very last day of limitation under section 48, Civil Procedure Code. Some immoveable properties claimed to be the first defendant’s were attached and proclaimed for sale on 6th November, 1944. But, just before the sale, one Parachuri Subba Rao filed a claim petition, E.A. No. 529 of 1944, regarding those properties, claiming them to be his. It was dismissed as filed’ too late. The claimant then deposited the sale warrant amount under protest into the Court on 6th November, 1944, itself and the Court ordered the stay of the sale of the properties on his application, E.A. No. 525 of 1944. On 13th November, 1944, the Court closed the execution petition, recording full satisfaction on account of the deposit made by Parachuri Subba Rao under protest. This order was rather. curious as the deposit was made under protest by Subba Rao and a stay had been got by him regarding its payment out to the decree-holder, and the Court should have therefore awaited the result of the suit filed by the claimant. What is more, it, of course, Kept the deposit in Court and did not allow the decree-holder to draw it out, as there was a stay. The claimant filed O.S. No. 296 of 1944 and got the order of the Court dismissing his claim set aside on 22nd December, 1945. On 7th February, 1946, the claimant withdrew from Court the amount deposited under protest by him. He was allowed to withdraw the entire amount as the decree entitled him to do so, having recognised his claim to the attached properties. Therein upon, the decree-holder filed E.P. No. 228 of 1946 to set aside the order of full satisfaction, erroneously passed by the Court on 13th November, 1944, to revive the proceedings in E.P. No. 283 of 1943, to continue the sale proceedings thereunder, and to sell the properties of the present appellant, who was a legal representative of the surety judgment-debtor, the second defendant. The District Munsif allowed that to be done despite all the objections of this appellant. The appellant thereupon filed A.S. No. 84 of 1948 in the Sub-Court, Tenali. The learned Subordinate Judge dismissed the appeal, overruling the contentions of the appellant; and he has preferred this C.M.S.