DAYALDAS Vs. TIKAMDAS

JUDGEMENT

(1.) THIS is an appeal by the judgment -debtor against an order of the Additional District Judge of Khandwa rejecting his application that the respondent decree -holder No.1 was not competent to file an application for execution for recovery of the entire decretal amount and that the application filed by him was beyond time.

(2.) THE material facts are that on 10th August 1948 a mortgage -decree in favour of the respondents Nos. 1 to 5 and against the judgment -debtor appellant and Sheikh Kalu (Respondent No. 8) was passed by this Court. By that decree. Rs. 11699 -4 o were payable to the respondent decree -holders Nos. 4 and 5 (who will be hereafter referred to as the first set of decree -holders), and an amount of Rs. 6784 -14 -6 was made payable to the respondents Nos. 1, 2 and 3 (who will be hereafter referred to as the second set of decree -holders). Two applications for the execution of the decree were filed, one in 1951 and the other in 1952. Thereafter on 16th July 1953, the first set of decree -holders applied for execution of the decree claiming recovery of not only the amount to which they were entitled but also the amount payable to the other set of decree -holders by the sale of the mortgaged property. It appears that no notice of this application could be served on the second set of decree -holders. But the application for the execution of the whole decree for the benefit of all the decree -holders was held to be competent. On 26th February 1954 the judgment -debtor Dayaldas filed an application under the Temporary Postponement of Execution of Decrees Act for the postponement of the execution of the decree which was granted. Thereupon the application for execution presented on 16th July 1953 was dismissed. Subsequently on 20th December 1956 Tikamdas of the second set of decree -holders filed the application for execution in question for recovery of the entire decretal amount by the sale of the mortgaged property. On 12th February 1957 he made an application under O. 21, R 15, C. P. C. for being allowed to execute the whole decree for the benefit of all the decree -holders. The lower court allowed this prayer of the present applying decree -holder on 12th February itself. The judgment -debtor appellant then raised the objections that the decree not being a joint decree within the meaning of O. 21, R. 15 C. P. C., the second set of decree -holders could not execute the whole decree for the benefit of all the decree -holders, and that application dated 20th December 1956 for execution of the decree to the extent of their separate interest was barred by time as it was not filed within three years of the date of the final order passed on their previous application. The execution Court rejected both these objections. It held that the leave granted to Tikamdas of the second set of decree -holders on 28th February 1957 could not be rescinded and that he was entitled to execute the whole decree for the benefit of all the decree -holders. On the question of limitation, the executing Court held that the judgment -debtor Dayaldas did not object in the execution proceedings initiated on the application dated 16th July 1953 of the first set of decree holders that they could not execute the decree for the entire amount and that, therefore, he was precluded by the principle of res judicata from raising such an objection in the present proceedings and the execution application in question was within three years from 26th February 1954, the date on which the application dated 16th July 1953 was dismissed.

(3.) IN reply, Mr. Razak, learned counsel for the respondent Tikamdas, said on the authority of Shri Chandra Chur Deo vs. Musammat Shyam Kumari I.L.R. 11 Pat. 445 and Kanak Prova Debt vs. Dhirendra Nath Roy A.I.R. 1928 Cal 861 that though the shares of the two sets of decree -holders were determined by the decree, it was none the less a joint decree and the second set of decree -holders were competent to execute that decree under O. 21, R. 15, C. P. C. for the benefit of all the decree -holders and that the judgment -debtor's omission to object to the maintainability of the application for execution of the whole decree filed by the first set of decree holders in 1953 operated as resjudicata.