BHAWANI SHANKAR Vs. GOVIND DASS AND OTHERS

JUDGEMENT

(1.) The appellant in Execution First Appeal is a legal representative of the original judgment-debtor. The decree-holders had obtained a simple money decree against the original judgment-debtor Smt. Sarju Bai and had got the decree executed in two ways simultaneously. In one execution case they were proceeding against some immovable property of the judgment-debtor. In the other application for execution out of which the present Execution First Appeal has arisen they applied for the attachment and sale of certain zamindari compensation bonds belonging to the judgment-debtor. The bonds were attached but before anything could be done further the decree-holders applied that they did not want to proceed with this application for execution and prayed that it be dismissed. This prayer of the decree-holders has been accepted and the execution application so far as the compensation bonds were concerned has been dismissed. The original judgment-debtor died during the pendency of the case and the appellant was brought on record in her place. The judgment-debtor objected to the dismissal of the application for execution and raised two points. The first was that it was not open to the decree-holders to say that they would not proceed with the execution application and that it should be dismissed. The other was that as soon as the compensation bonds were attached under Sec. 9 of the U.P. Zamindars' Debt Reduction Act the executing Court was bound to enter satisfaction to the extent of the amount calculated according to the formula given in Sch. II of the Act. These contentions of the judgment-debtor were not accepted by the executing Court and have been reinterated before us in the present appeal.

(2.) The first contention can be easily disposed of. The decree-holders had approached the Court with an application for execution and had made a particular prayer. It was, in our opinion, open to the decree-holders at any stage to state before the Court that they did not want to proceed with the execution and that it should be dismissed. The judgment-debtor could not have any say in the matter and could not prevent the execution application being dismissed at the request of the decree-holders. The only provision of law to which our attention has been drawn on behalf of the appellant in this connection is Or. XXI, R. 57, Cr. P. C. That rule is, however, wholly inapplicable to the present case because it applies only when the decree-holder is in default. In the present case the decree-holders were never in default. They deliberately wanted the execution application to be dismissed and there was no question of default. Our attention has not been drawn to any other provision under which the decree-holders were debarred from dropping the execution proceedings and getting the execution application dismissed on the ground that they did not want to proceed with it.

(3.) The other contention was also untenable and overlooked the express terms of Sec. 9 of the U.P. Zamindars' Debt Reduction Act. That Sec. reads as follows: