SHEOCHAND Vs. NEKIRAM

JUDGEMENT

(1.) THIS is a Letters Patent Appeal arising out of a decision of a learned single Judge of this Court in an execution matter. A preliminary decree for foreclosure was passed on 14th November 1958 in favour of two brothers Nekiram and Pyarelal. The decree was made final on 2nd November 1963. One of the two brothers, namely, Pyarelal filed an application for execution of the decree and claimed delivery of possession over the property, as the amount was not paid by the judgment-debtors. During the pendency of the execution the other decree-holder Nekiram filed an application on the 16th of July 1964 praying that the decree was being executed by the joint decree-holder against his interest and that he is not likely to give him his share. He, therefore, prayed that some arrangement be made so that he may get his rights secured. One of the suggestions made in the application was that the possession be delivered jointly to both the decree-holders. Subsequently, the judgment-debtors made an application on the 20th of August 1964 stating that they had purchased the interest of the decree-holder Nekiram in the decree and they prayed that the name of the judgment-debtors be substituted in place of Nekiram decree-holder. They also prayed that the execution be dismissed. THIS application of the judgment-debtors was rejected by the trial Court on the ground that the judgment-debtors, even if they had purchased the share of Nekiram, were not entitled to be substituted in place of the decree-holder; nor were they entitled to have the application for execution of the decree dismissed merely on that ground. That order was upheld by a learned single Judge of this Court and consequently this Letters Patent Appeal has been filed.

(2.) LEARNED counsel for the judgment-debtor-appellants has strenuously contended that the judgment-debtors' prayer could not be rejected without making an enquiry into the facts whether the judgment-debtors had in fact purchased the share of the decree-holder Nekiram and without finding out what was the share of Nekiram in the decree and that the Court was bound to give effect to the sale in favour of the judgment-debtors at least to the extent that the decree must be deemed to have been satisfied as regards the share of Nekiram, and without going into these facts the Courts were wrong in dismissing the application of the judgment-debtors.