V. R. NEWASKAR, J.

( 1 ) FACTS giving rise to this second appeal are as follows:

( 2 ) A decree for money was obtained by the appellants against the respondents on 30-9-1930. This decree was put into execution from time to time. Last execution petition was filed on 14-12-1946. By this petition the decree-holders prayed for attachment of the moveables belonging to judgment-debtors for the realisation of their dues. The judgment-debtors raised an objection on the basis of Section 48 of Civil Procedure Code that since more than 12 years bad elapsed since the passing of the decree no fresh order for execution could nave been passed. The executing court held on 24-1950 that since the execution of decree had been stayed by lawful order the petition, for execution was not barred under Section 48 C. P. C. At this stage the executing court asked the decree-holders to disclose what relief did they want and fixed the case for further orders on 25-10-50. On that day the decree-holder submitted a petition that the fields belonging to judgment-debtors, mentioned in the petition and in respect of which documents called 'certificates Khatejat' had been filed, might be attached as according to him by their sale his dues could be realised. Thereupon the court passed an order for attachment of those fields on the same day. In pursuance of this order attachment was made and later the execution proceeding was transferred to the Collector for effecting the sale of those holdings on a petition submitted on behalf of the decree-holders on 13-2-1951. The Collector returned back the proceedings holding that the land in question could not be sold being less than 15 acres due to the provisions of Section 71 (2) of the Madhya Bharat Land Revenue and Tenancy Act. The petitioners thereupon submitted an application on 21-2-1952 that they wanted to continue the same execution proceedings. Both the courts below were of the opinion that it was an attempt to have a fresh application for execution in the garb of an application for continuation. They therefore held tho execution to bo incompetent and barred under Section 48 C. P. C.

( 3 ) THIS second appeal is directed against that order.

( 4 ) AT an earlier stage of this appeal my learned brother Shrivastava J. , heard the appeal and held that the execution petition was not barred under Section 43 C. P. C. since the prayer was for continuing the same execution petition which was not barred by twelve year's rule in Section 48 C. P. C. The decision reported in Shrikisandas v. Sitaram, AIR 1952 Nag 123, sought to be relied upon on behalf of the respondent was distinguished on the ground that in that case an altogether new relief, not previously prayed for, was sought though in the course of the same execution petition. In the present case according to him what the decree-holders asked for was the initial relief of attachment of moveables. The relief remained as it was and no amendment of the petition was asked for or granted so as to abandon that relief. He therefore allowed the appeal by holding that the execution petition could not have been dismissed. The orders of the court below were set aside and the case sent back to the court of first instance for further proceedings. However it was later discovered that the guardian for one of the minor respondent was not heard. Consequently the learned Judge set aside the decree and posted the case for rehearing.

( 5 ) THE same now is placed before me for hearing.

( 6 ) IT is clear that in the original execution petition the decree-holder prayed for the assistance of the court by attaching moveable properties of the judgment-debtors. During the pendency of that application, after determining the question regarding bur of execution by reason of Section 48 C. P. C. the court asked him in what manner he needed assistance of the court for realisation of his dues. At that stage he submitted an application that the fields belonging to judgment-debtor might be attached. This was d

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