KAHATU BAI Vs. KHATIJA BAI

JUDGEMENT

(1.) The Judgment Debtors in O. S. 1 of 1961 on the file of District Court, Nalgonda are the appellants here.

(2.) The facts giving rise to this appeal may briefly be stated: The respondents 1 to 3 herein obtained a preliminary decree in O. S. 1 of 1961 on the file of the district Court, Nalgonda for partition of certain immovable properties. An appeal was preferred to the High court against the said decree in A. S. 72 of 1962 and the appeal was dismissed, and the preliminary decree, confirmed. The respondents then filed an application in the district Court, Nalgonda, for execution of the decree to the extent of costs awarded by the High court in appeal. It appears that the costs awarded by the trial court were already deposited by the judgment debtors and withdrawn by the decree-holders respondents.

(3.) The District Court, Nalgonda transferred the execution petition to the district Court, Mahaboobnagar, which in its turn transferred the same to the Court of Subordinate Judge, Mahaboobnagar. When notices were issued to the judgment-debtors-appellants, they raised several objections to the maintainability of the execution petition in that court. The first objection was that all the judgment-debtors should have been impleaded as party-respondents to the execution petition and the petition was not maintainable if they were not impleaded. This objection was overruled by the lower court on the ground that the decree was joint and several and that impleading of all the judgment-debtors was not necessary as the certified copy of the decree was filed along with the execution petition and that under the proviso to O. 21, R. 11 (2), C.P.C. when a certified copy of the decree is filed, the names of the parties, the date of the decree and the amount of costs need not be given in the application. It also found that the other judgment-debtors being minors, the decree-holders were justified in proceeding against judgment-debtors the appellants herein. In this view the lower court overruled the first objection.