CHANDRASHEKHARAPPA VIKUPAKSHAPPA APPAJI Vs. SRIMAD SADGURU MUPPINENDRA SWAMI

JUDGEMENT

(1.) The appellant is the 21st judgment-debtor, Respondent 1 is the decree-holder, and respondents 2 to 22 are the other judgment-debtors. This appeal arises out of the order passed by the 1st Joint Civil Judge, Junior Division, Hubli, in L.D. NO.55 of 1961 over-ruling the objections of the present appellant which was confirmed by the learned District Judge, Dharwar, in Civil Appeal No.369 of 1962.

(2.) The decree-holder is Shrimat Sadguru Muppinendra, Swamiyavaru Lingayat Fund, Byadgi, by its Chairman Channabasappa Rudrapppa Upasi. The Execution application was filed by Muregeppa bugerappa, Yadwad who alleged that he was authorised by the Chairman of the decree-holder-Fund for filing the execution application. In the present execution application it was stated that an application was filed in Diary Application No.22/60 and a certificate of transfer to the Ranibennur Court was obtained. That application was filed on 5-2-1960. After the transfer, no further steps appear to have been taken. Thereafter, an application for transfer was filed in 1961 for transfer of the execution to the Hubli Court in Diary Application No.6 of 1961, and a certificate was obtained on 24-1-1961. It is stated in the application that according to the terms of the decree, the judgment-debtors 2, 6 to 12, 14 to 16, and 18 to 21 are liable to pay Rs.5,265 with interest at six per eent from the date of suit. Thus the sum of Rs.7383- 15-4 and future interest is sought to be recovered from the 21st judgment-debtor. . It was also stated that this M.S.Yadwad had obtained a document of authority from the Chairman of the decree-holder-Fund for prosecuting the execution proceedings. The Office of the Court noted that the execution applicant has not produced the Power of Attorney. But the learned Judge has passed an order under the Office note to the effect that notice under O.21, R.22 CPC may be issued on 16-3-1961. In his objection statement, the present appellant admitted that a decree had been obtained against him and other judgment-debtors. He also stated that according to the decree, he had been making payments from time to time and that he had paid more than his share of the decretal amount. The more substantial contention taken by him was that M.S. Yadwad was not authorised to file the execution application, that he has not filed any letter of authority from the decree-holder and that, therefore, the execution application is not maintainable. The appellant also alleged that the execution application is not within time. Both the lower Courts have over-ruled the objections of the appellant.

(3.) It is contended by Mr. Karanth, that the 1st execution application, Diary Application No.22/60, filed on 5-2-1960 was itself without proper authority from the decree-holder, that the execution application itself was incompetent, that any proceeding thereunder is invalid and that it does not serve as a step-in-aid of execution and that the present application filed on 27-2-61, being beyond three years from the date of the decree, is itself barred by limitation. The objection to the maintainability of the present execution application is also on the ground that M.S.Yadwad is not authorised to file the execution application and that the execution is not maintainable. Hence, the validity of the proceeding under the former execution petition, Diary Application No.22/60 will depend upon the same question namely, the competence of the present execution application.