S MOHD LIAQ Vs. RAMJI

JUDGEMENT

(1.) In 1931 the respondents obtain-ed a decree against Mir Muzaffar Husain for Es. 765 odd together with costs & interest. Mir Muzaffar Husain died on 21-1-1932 & has been succeeded by twelve persons, including the appellants. The first execution application was filed on 22-8-1932; it was really an application to bring the legal representatives of Mir Muzaffar Husain on the record. It was consigned to the Record Room on 22-12-1932. Second execution application was filed in July 1935 & was consigned to the Record Room on the ground that the legal representatives were agriculturists. Third application was filed in July 1938 & was consigned to the Record Room in February 1939. The fourth application was presented on 8-5-1941; it was for attachment of the house in which Mir Muzaffar Husain had a half share. The legal representatives filed several objections against the application. In the meantime one of the legal representatives filed a suit for partition of her share in the house. The suit was referred to arbitration & on 30-1-1943 a decree was passed on the basis of the award. While the suit was pending, the objections to the fourth execution application remained stayed. On 12-7-1943 the respondents-D. Hs. made an application for amendment of the fourth execution application. The amendment was opposed by the legal representatives on the ground that the fourth execution application was not an application in accordance with law & was barred by time & that the amendment application of 12-7-1943 was a fresh application & was consequently barred by the rule of three years' limitation. The objections were rejected by the executing Court. They went up in appeal to the Dist. J. who refused to interfere. So they have come up to this Court.

(2.) Whether the fourth execution application was time-barred or not depends upon the answer to the question whether the second & the third applications were in accordance with law. The second execution application was for attachment & sale of movables belonging to Mir Mazzaffar Husatin J. D. & in the possession of his legal representatives. The application however, was not accompanied by an inventory of the movables. It was contended that an inventory was obligatory under Order 21, Rule 12 & that as the mandatory provision was not complied with, the application was not in accordance with law. The view of the Court below is that the rule applied because the legal representatives are not J. Ds. within the meaning of the rule. The rule is that:

(3.) An examination of the provisions of Sections 50 & 52, C. P. C., Supports the view that the teems 'J. D.' & 'legal representative of a J. D.' are not synonymous. It is laid down in Section 50, that where a J. D. dies before satisfying the decree in full the D. H. may apply to the Court to execute it against the legal representative of the deceased. When the section speaks of a J. D. & of a legal representative of a J. D., it clearly emphasises the distinction between the two. Section 52 deals with a decree passed against the legal representative of a deceased person who was primarily liable. Here the legal representative becomes the J. D., because the decree was actually passed against him. So he is described as J. D., in Sub-section (2), In Section 50 (2) the legal representative of a deceased J. D., is described as legal representative & not as J. D.