KIRTILAL JIVABHAI Vs. CHUNILAL MANILAL

JUDGEMENT

(1.) THIS is an appeal from a judgment of Mr. Justice Kania, and the question that arises for determination is1 whether a decree is capable of execution or is barred by limitation. It was an ex parte decree that was passed on November 13, 1923, in favour of Jivabhai Maganlal, the father of the appellant, against the firm of Vadilal Manilal. On January 4, 1926, Jivabhai applied for execution of the decree to this Court and a warrant was issued for the arrest of Vadilal Manilal and Chunilal Manilal, respondent No.1 herein, partners of the defendant firm, the notices under Order XXI, Rule 22, and under Order XXI, Rule 37, Civil Procedure Code, 1908, being dispensed with. In June, 1928, Jivabhai died leaving behind him two sons, Kantilal (respondent No.2), Kirtilal (the appellant), a widow and a brother's widow. In August, 1930, the decree was transferred to Ahmedabad for execution. On September 4, 1930, a certificate was issued by; the Prothonotary and Senior Master that further execution had been stayed in this Court. On February 10, 1931, Kantilal applied for execution in the Ahmedabad Court. On March 2, 1931, notice was issued by that Court under Order XXI, Rule 22 The service of this notice was effected by substituted service, and on August 31, 1931, the Court made an order for attachment of properties belonging to the judgment-debtors. On September 30, 1931, notice was issued under Order XXI, Rule 66, for settling draft proclamation of sale. On October 15, 1931, respondent No.1 appeared and raised various objections. On March 12, 1932, Kantilal applied to withdraw his application for execution with liberty to file a fresh one. THIS application of Kantilal was granted and he was made to pay the costs of the application for execution.

(2.) KANTILAL filed a suit for partition in this Court toeing Suit No.1177 of 1940, and in that suit a consent decree was passed on September 23, 1940. By that decree the joint family properties were partitioned, and it is the appellant's case that the judgment-debt against the firm of Vadilal Manilal came to his share. The appellant applied for execution to the Ahmedabad Court on July 25, 1941, and that Court issued notice under Order XXI, Rule 22 On August 30, 1943, the appellant got the stay order for the execution of the decree in this Court removed; and on August 31, 1943, he presented an application under Order XXI, Rule 16, which Mr. Justice Kania dismissed holding that the decree was time-barred and not capable of execution.

(3.) RELIANCE was placed on Madhav Prabhakar v. Balaji Govind (1926) I. L. R. 51 Bom. L. R. 75. In that case a decree on a mortgage was passed in favour of one Vishnu Vishwanath Oke. He died on April 8, 1919, and in 1920 Vishnu's brother Balvant applied for execution. The darkhast was sent to the Collector for execution on August 20, 1920. On April 27, 1922, the Subordinate Judge held that it was not competent to the applicant Balvant to proceed with the execution as other persons interested with him in the decree as coparceners after the death of Vishnu were not joined. The proceedings were, therefore, called back from the Collector on May 5, 1922. On October 23, 1923, another application for execution was filed to which all the coparceners were parties; and the question arose whether the time occupied before the Collector from August 20, 1920, to May 5, 1922, in execution of the previous darkhast could be excluded under para 11, Sub-para (3), of Schedule III, of the Civil Procedure Code. The learned Subordinate Judge held that it could not be excluded. From this decision there was an appeal to the High Court before Mr. Justice Shah and Mr. Justice Fawcett. Mr. Justice Shah, in delivering the judgment of the Court, held that the time could be excluded; he then went on to hold that the first darkhast was properly presented by one of the coparceners under Order XXI, Rule 15 To the extent that Mr. Justice Shah held that Balvant could present the application as one of the assignees by operation of law on the death of Vishnu under Order XXI, Rule 15, read with Order XXI, Rule 16, that decision, with respect, is perfectly correct and is consistent with the recent decision of our Court that when a decree is assigned to two persons jointly, any one of the co-assignees can validly present an application for execution of the decree under Order XXI, Rule 15, of the Code see Shankar Hari v. Damodar Vyankaji (1944) 47 Bom. L. R. 104. But if the decision of Mr. Justice Shah is sought to be read as meaning that a coparcener of the decree-holder can apply for an execution of the decree under Order XXI, Rule 15, as a decree-holder, with great respect to the learned Judge we are unable to agree with that view. A coparcener in whose favour a decree is not passed can never be a decree-holder. He may become a transferee of the decree by operation of law; and if there are other coparceners in whose favour also the decree becomes transferred, then he may apply as one of the assignees under Order XXI, Rule 16, read with Order XXI, Rule 15, of the Code. ' The same view of the law has been taken by Mr. Justice Burn and Mr. Justice Stodart in Narayanan v. Panchanathan [1940] Mad. 79; and they have expressly dissented from the contrary view taken in Ramsewakprasad v. Saran Singh [1937] A. I. R. Pat. 607.