- (1.)On the 3 of October 1899, an application was made to execute the decree in O.S. No. 260 of 1893, by attachment and sale of certain immoveable property mentioned in the application. An order was obtained on the 7 October 1899. The judgment-debtor objected that the decree had been satisfied, but that objection was disallowed on the 31 October. The judgment-debtor appealed to the District Judge and obtained an order for stay of execution pending the hearing of the appeal. Upon this the District Munsif, on the 15 December 1899, passed the following order on the execution petition: "Execution ordered to be stayed. Petition dismissed." On the same day, as a diary entry shews, the immoveable property was attached. The District Judge disposed of the appeal of the 20 July 1900, remanding the matter for further enquiry, and on the 25 January 1901, the District Munsif decided that the decree had been satisfied before the attachment. On n December, 1901, the District Judge reversed this order, and on the 29 of October 1903, his decision was confirmed by the High Court.
(2.)The execution petition now under consideration was presented on the 9 July 1905; it asks for a notice under Section 248 of the Civil Procedure Code for the attachment of" certain immoveable property, for the issue of a proclamation of sale of the property already attached, for the attachment of moveables, and for the arrest of the defendants.
(3.)The question for our decision is whether this petition is barred by limitation as held by the District Munsif, or not so barred as held by the District Judge in appeal from him. There is no doubt that when on the n December, 1901, the District Judge reversed the District Munsif's order declaring the decree already satisfied, it was open to the decree-holder to proceed with the execution, and the fact that an appeal was preferred to the High Court presented no obstacle, no order for stay of execution having been obtained. It is impossible, therefore, to accede to the contention that limitation commences to run from the decree of the High Court, and the petition of the 7 July 1905 is clearly barred so far as it is a fresh application for execution, that is to say, so far as it asks for attachment of property not proceeded against in proceedings instituted by the application of the 3 October 1899. In so far as it asks for a proclamation of the sale of the property already attached in pursuance of the petition of 1899, the case is different. For the appellant it is contended that the order of the 15 December 1899 dismissing the petition closed the proceedings, that the attachment closed with them, and the subsequent application is throughout a new petition for execution. If that be the true position, the respondents must fail not merely on the ground of limitation but also because they do not ask for attachment of the property previously attached. But that is not the position. There is nothing to show that the order of the 15 December 1899 was passed after notice to either party. It is not stated in the order that either party was heard, and the diary entry does not indicate any hearing on the 15 December. It has been held in Sasivarna Tevar V/s. Arulanandam Pillai (1897) I.L.R. 21 M. 261 that the Court has no legal authority to dismiss a petition for execution simply because execution has been stayed, but if that is so, the order of dismissal is not necessarily ineffective to dispose of the proceedings. If wrong, an appeal might lie to stet it right. But here, the order being made without notice, and in the absence of both parties, cannot be regarded as an order between the parties at all. It amounts to no more than a direction to officers of the Court to remove the proceedings from the pending list. Cf. the case of Narayan V/s. Sono (1890) I.L.R. 24 B. 345 at 349. Indeed it appears not improbable that this is the view taken of the matter by the District Munsif himself, for the record contains no indication of any order to remove the attachment or for costs. However that be, the order had not the effect of closing the proceedings, and they must be considered to have been still pending when the application was made in 1905.