DEORAM MANGALRAM Vs. NANDAN SHIVRAM

JUDGEMENT

(1.) THIS is a second appeal by the legal representative of a decree -holder whose application for execution of the decree obtained by his father against the respondents has been rejected by both the Courts below as barred by limitation.

(2.) FACTS which are necessary to appreciate the dispute between the parties are that in Civil Suit No. 30 of 1956 one Mangalram obtained an ex parte decree against the defendants -respondents, on February 14, 1957 in the Court of the Small Causes, Amravati. After the decree, the decree -holder died on August 30, 1957. On December 3, 1958, the appellant, who is the son of the deceased decree -holder, filed an application purporting to be one under Order XXI, Rule 16, Civil Procedure Code before the executing Court below and the prayer in that application was that 'his: name may kindly be allowed to be substituted in place of the decree -holder and he be kindly allowed to execute the decree.. '. A notice of this application was issued to the judgment -debtors, but they did not enter appearance though they were served. On June 28, 1959, the Court directed the present appellant, who was the applicant, to file a succession certificate. This succession certificate was obtained and was filed before the Court on July 22, 1960. On that day the Court passed the following order: Applicant with Shri Jawarkar. He files succession certificate. It is ordered that the name of the applicant be substituted as legal representative of the deceased Mangalram. Note be taken in C. S. R. Papers be filed. In the meantime, on August 29, 1959, the applicant had filed another application also under Order XXI, Rule 16, Civil Procedure Code, signed by himself along with the widow, four daughters and two other sons of the deceased decree -holder stating that they had also interest in the decree and their names may be allowed to be substituted in place of the decree -holder and that they be allowed to execute the decree. Since the order of the Court directed that only the applicant -appellant should be brought on record as legal representative, it will be only the first application with reference to which the rights of the parties will have to be decided.

(3.) THE judgment -debtors objected to the execution application on the ground that it was barred by limitation as it was filed more than three years from the date of the decree. The appellant relied on the order of the Court passed on July 22, 1960 reproduced above and contended that that order was passed on an application which was a step -in -aid of execution, and therefore, the application for execution was not barred.