Decided on March 07,1952



Krishnaswami Nayudu, J. - (1.) The judgment-debtor is the appellant in this civil miscellaneous second appeal. In execution of a decree passed against him on 3-4-1935, his properties were attached and brought to sale in E. P. No. 104 of 1947. The execution petition was posted for sale to 6-2-1948 and for final hearing to 13- 2-1948. On 6-2-1948, the following endorsement is found on the E. P. "No instructions, no bids, sale stopped. E. P. closed." On the 11th February 1948 the decree-holder filed an execution petition No. 73 of 1948 with a prayer that it may be treated as a continuation of the prior E. P. No. 104 of 1947 and for fixing a date of sale and for proceeding with the sale.
(2.) Two objections were raised on behalf of the appellant (i) that the order dated 6th February 1948 was a final order and E. P. No. 73 of 1948 having been presented 12 years after the date of the decree, is barred by limitation & (ii) that the counsel having reported no instructions on the 6th of February 1948, he is not entitled to present E. P. No. 73 of 1948 and the presentation is not a proper presentation.
(3.) As regards the first of these objections, the learned Counsel relies on Rule 187 of the Civil Rules of Practice and argued that there was a default on the part of the decree-holder and that the order closing the petition amounted to a dismissal of the petition and therefore it was a final order. But it must be noted that Rule 187 will have application only, in cases of default in compliance of any order of court as to payment of batta and other steps to be taken as provided therein. Rule 187 has therefore no application to this case. Further the learned counsel relied upon Order 21, Rule 69 and contended that inasmuch as the sale was posted for the 6th of February 1948 and neither the decree-holder nor his counsel appeared and requested for an adjournment, the order disposing of the petition amounted to a dismissal and, therefore, it was a final order. Order 21, Rule 69 only empowers the court to exercise its discretion to adjourn any sale under certain terms and conditions provided therein but it does not say anything as to what the court ought to do in case the sale is not adjourned. The court has rightly in such cases closed the petition for statistical purposes and it cannot amount to a final order dismissing the petition. This position is covered by the authority of the judgment of Happell J. in 'Gangaraju v. Bhimalingam', 1947-2-Mad. L. J. 423, where it has been held that where in an execution application the property is put up for sale but is not sold because there were no bidders and thereafter the District Munsif makes an order that the petition was "closed", there is no final disposal of the petition and a subsequent execution application filed would be in continuation of the prior one. I, therefore, consider that the petition, having been closed only for want of bids the order closing the petition does not amount to a final order and E. P. No. 73 of 1948 is a continuation of the previous execution proceedings.;

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