MANMOHAN DAYAL Vs. KAILASH NATH

JUDGEMENT

(1.) This appeal arises out of proceedings for execution of a decree which was obtained by five persons, Shrimati Bitto, Radhey Shyam, Rameshwar Prasad, Gulley Ram and Bal Govind, on 3rd of April, 1941. The appeal, which was filed against that decree in this Court, was dismissed on 26th November, 1943, and the application for execution of the decree was presented on the 22nd of December 1944. By this time two of the decree-holders, Gulley Ram and Bal Govind, were dead. In their places Shrimati Jasoda, widow of Gulley Ram, and Salig Ram, son of Bal Govind, applied for execution as legal representatives of the original decree-holders and sought permission to execute the decree in that capacity. While this execution was still pending, Shrimati Bitto died in the year 1945 and her daughter, Shrimati Naraini Devi, applied for substitution in the execution application. She is now one of the persons executing the decree but, in this appeal, we are not concerned with her at all. Later still, by the year 1953 two other original decree-holders, Radhey Shyam and Rameshwar Prasad, died. Thereupon on 6th September, 1953 an application was presented by Shrimati Sheo Piari Devi for substitution of her name as legal representative of Rameshwar Prasad deceased and Shrimati Tulsa widow and Kailash Nath and Amar Nath, sons of Radhey Shyam, applied for substitution of their names as legal representatives of the original decree-holder, Radhey Shyam. In the application, they also made the prayer that the execution, which was already pending, should be continued and the decretal amount realised. This application was allowed ex parte on the 2nd of April, 1955. Thereafter the judgment-debtors filed an application for the review of this ex parte order. In addition an objection under Section 47 of the Code of Civil Procedure was filed on behalf of Manmohan Dayal judgment-debtor and another objection under Section 47 of the Code of Civil Procedure was filed on behalf of Shrimati Gilla Kun-war judgment-debtor. The review application and these two objections under Section 47 of the Code of Civil Procedure all raised the same point as to whether Shrimati Sheo Piari Devi, Shrimati Tulsa, Kailash Nath and Amar Nath were entitled to continue execution of the decree or not. The learned Judge presiding over the execution court held that they were entitled to execute the decree and, consequently, dismissed the review application as well as the two objections under Section 47 of the Code of Civil Procedure. This instant appeal is directed against that order of the executing court.

(2.) During the course of arguments in this appeal, learned counsel for the appellants had to concede in view of a Full Bench decision of this Court in Baij Nath v. Ram Bharose, ILR 49 All 509: (AIR 1927 All 165) (A), that the legal representatives of the two deceased decree-holders, Rameshwar Prasad and Radhey Shyam, were entitled to ask for continuation of the execution proceedings without moving any fresh application for execution. On this point there are also decisions of other High Courts clearly indicating that if an execution be already pending at the instance of a decree-holder, his legal representatives," after his death, need not make a fresh application for execution and it is sufficient that they apply for continuation of the proceedings in the pending execution. Reference may be made to a Full Bench decision of the Madras High Court in Venkatachalam Chetti v. Ramaswami Servai, ILR 55 Mad 352; (AIR 1932 Mad 73) (B), a Division Bench decision of the Chief Court of Oudh in Mahabir Prasad v. Raja Mohan Manucha, AIR 1946 Oudh 154 (C), and a Division Bench decision of the Nagpur High Court in Govind Rao v. Ganpat Rao, AIR 1947 Nag 116 (D). In view of this established position of law, learned counsel for the appellants rested his arguments on only one point. The point raised by learned counsel was that, even though the legal representatives of Rameshwar Prasad and Radhey Shyam were entitled to apply for continuation of the execution proceedings, they were bound to do so in the usual form of ten columns prescribed by Order XXI, Rule 11, C. P. C. For this contention, learned counsel relied on certain remarks of the Full Bench of this Court in ILR 49 All 509: (AIR 1927 All 165) (A), cited above. In that case, Ram Lal and certain other persons had obtained a decree for sale which had been made final on 28th September, 1912. After an infructuous application for execution, another application was made on 22nd December, 1915. There was a compromise agreement during that execution and the judgment-debtors were allowed to pay the money due in instalments. Three instalments were paid whereafter there was a default. Thereupon there was another application for execution but it ended in no result. The fourth application was made on 22nd of October, 1923, and since, in the meantime, the judgment-debtor's interest in the property had been sold, the transferee was made a party as successors-in-interest of the original judgment-debtors. The execution of the decree had been transferred to the Collector and before him the person, against whom execution was sought, made a deposit of Rs. 1,000/- asking at the same time for a year's time to enable him to pay up the balance of the decretal amount. The Collector gave three months' time and, finding it unnecessary to keep the case pending in his court, returned the decree and the papers to the civil court. After the expiry of the three months which were granted by the order of the Collector, Ram Lal, by an application dated 28th January, 1925, prayed that the papers of the former execution might be sent to the Collector for execution. That application was granted by the order dated 6th February, 1925. Almost immediately thereafter Ram Lal died and thereupon his legal representatives put in an application on 28th of April, 1925, praying that they might be brought on the record in place of their late father and that the execution might be proceeded with. It was under these circumstances that the Full Bench had to consider the question whether the application dated 28th January, 1925, by Ram Lal and the application dated 28th April, 1925, by his legal representatives were fresh execution applications within the meaning of the expression used in Section 48 of the Code of Civil Procedure. The Bench first considered the question with reference to the application of Ram Lal dated 28th January, 1925, and held that it was not a fresh application within the meaning of Section 48 of the Code of Civil Procedure. It was an application to carry on a previous execution which was still pending. Thereafter the learned Judges proceeded to consider the nature of the application dated 28th April, 1925, made on behalf of the legal representatives of Ram Lal. This application, it may be noted, was in the usual form of ten columns prescribed by Order 21, Rule 11, C. P. C. This fact appears in the judgment of the Full Bench itself where, when giving the facts, it was noted that this application purported to be the sixth application for execution. In order to verify this fact, we sent for the record from the Record Room of our Court and found that, in fact, the application purported to be the sixth application for execution. In order to verify this fact, the application of 28-4-1925, was in that prescribed form. When dealing with that application, the Full Bench held :

(3.) There is, therefore, no force in this appeal and it is dismissed with costs. The stay order is vacated. The record may be sent down to the lower court at once.