MADHO PRASAD Vs. SHAMBHOO NATH

JUDGEMENT

(1.) THIS appeal is by the decree-holders. The appellants ob tained a money decree against the res pondent and put that decree into execu tion. In the execution Court an appli cation dated 16-7-1958 was received by post purporting to have been signed by the decree-holders stating that a com promise had been arrived at between the parties and praying that the execu tion of the decree be postponed. It is not necessary to refer to the terms of compromise set out in that application. On 17-7-1958 the Court passed on order "the execution is struck off in terms of the compromise". On 26-7-1958 the decree- holders made an application (10-C) under Section 151, Civil P. C. praying that the order striking off the execution be recalled and the execution restored on the ground that the application dated 16-7-1958 was a forged document and did not contain the signature of the de cree-holders. The judgment debtor filed an objection supported by an affidavit to this application. Thereafter the de cree-holders filed another petition (20) wherein it was stated that the judgment debtor might have obtained some blank paper already signed by the decree-hol ders and used that paper for making the application dated July 16. 1958. It was, however, prayed that as the aforesaid application was not made personally by the decree-holders in Court, no action could be taken on that application. From the record it appears that on 6-2-1959 the Court passed an order to the effect that the order dated 17-7-1958 striking off the execution be set aside and the execution be revived. It was observed in that order that it would be open to the judgment debtor to move the Court by a proper application for recording any settlement that might have been ar rived at between the parties.

(2.) THE execution Court there after considered the various applications and objections filed by the parties and arrived at the conclusion that the ap plication dated 16-7-1958 had been signed by the decree-holders and could be act ed upon. The subsequent applications made by the decree-holders (10- C and 20-C) were dismissed and the order dated 17-7-1958 striking off the execu tion case was maintained. Against this order of the execution Court dated 14-11-1960 an appeal was preferred by the decree-holders. The learned Addi tional Civil Judge dismissed the appeal holding that the appeal was not compe tent as the impugned order was in feet an order under Order XXI Rule Civil P. C. and no appeal lay against such an order. Reliance was rainy placed on a Bench decision of this Court in Munni Lal v. Kishun Prasad, AIR DL 948 All 443. In that case an objection was raised that the appeal was not com petent. That case related to an appeal against an order of an Arbitrator to whom objections tinder Order XXI, Rule 90. Civil P. C. had been referred. The Bench rejected the objection that the appeal was not maintainable on the ground that the appeal in question was filed under Section 39 of the Arbitra tion Act. However, the Court observed that even if it be held that no appeal lay. the Court was competent to inter fere with the impugned order under its revisional jurisdiction. I fail to under stand how the learned Judge treated this case as an authority for the proposition that no appeal was competent against an order passed under Order XXI. Rule 2, Civil P. C. A very curious reasoning was adopted by the learned Judge. In his opinion this Court did not dispel the contention of the learned counsel for the respondent in that case that the appeal was not competent. After holding that the appeal was competent under Sec tion 39 of the Arbitration Act. it was not necessary for this Court to go into the question whether the appeal would also be competent under the provisions Of Civil P. C.

(3.) THE appeal is accordingly al lowed and the case is sent back to the Court below for hearing the appeal on merits. The costs shall abide the re sult.