SURENDRANATH PATNAIK Vs. DASARATHI DUTTA

JUDGEMENT

(1.) This is a petition on behalf of the judgment-debtors against an order of the Additional Subordinate Judge. Berhampur, disallowing their contention that the appeal as a whole had abated. The sole question thus for consideration in this case is whether Rule 12 of Order 22 of the Code of Civil Procedure applies to appeals arising out of proceedings in execution of a decree or order.

(2.) The facts leading up to this application, shortly stated, are these: Plaintiffs Jambeswar Dutta, Subal Dutta and Dasarathi Dutta obtained a joint decree for recovery of possession of the suit land on April 5, 1941 in O. S. No. 208 of 1939 of the Court of the Munsif, Berhampur, against the present petitioners. Opposite Parties 3 and 4 are the sons of Jambeswar Dutta, plaintiff No. 1, since dead. Opposite party No. 5 is the son of Subal Dutta, plaintiff No. 2 who is also dead. Pursuant to this decree, execution was levied in the court of the Munsif of Berhampur which was numbered as O. E. P. No. 121 of 1952; which was filed by one Lakshman Patnaik who was arrayed as opposite party No. 2 on the ground that he holds a power of attorney on behalf of the decree-holders and as such is competem to file the execution case. The learned Munsif dismissed the execution case on January 8, 1953 holding that Lakshman Patnaik had not the necessary power since he did not file the same in the execution proceedings. Against this order plaintiff No. 3, Dasarathi Dutta, carried an appeal along with the aforesiad Lakshman Patnaik which was numbered as Misc. Appeal No. 12 of 1953 of the Court of the District Judge of Ganjam. This appeal was eventually dismissed for non-prosecution on September 28, 1954. Against this order a Civil Revision was carried to this Court which was numbered as C. R. No. 4 of 1955. The rule in that case was made absolute by this Court on January 25, 1957. It appeared that during the pendency of that Civil Revision in this Court, it stood dismissed as against Bhabagrahi Dutta, a minor son of Subal Dutta, plaintiff No. 2, by order No. 16 dated December 6, 1956. It was contended in this court that so far as Bhabagrahi is concerned, the order of the District Judge has thus become final. Accordingly whatever order is passed in that application will not affect the rights and liabilities of Bhabagrahi Dutta. Consequently while disposing of this application it was stated: "I would accordingly, set aside the order of the learned District Judge and restore the appeal to its file. As I have stated earlier, it would not affect the rights and liabilities, if any, of opposite party No. 10 Bhabagrahi Dutta, minor; since the result of the dismissal of this petition against him would be that the order of the executing court as far as he is concerned is made final."

(3.) After the disposal of the Civil Revision No. 4 of 1955 when the matter went back to the lower appellate court, the appeal was heard by the Additional Subordinate Judge, Berhampur, who by his order dated March 20, 1958 set aside the order of the Munsif and remanded the case to the Court below under Section 151 of the Code of Civil Procedure for disposal of the execution case. During the argument it was urged before the lower appellate Court that the appeal as whole had abated since it had abated against one of the decree- holders, Bhabagrahi Dutta. The Additional Subordinate Judge appears to have thought that Order 22, Rule 12 of the Code of Civil Procedure applies with equal force to the appeals as to the execution proceedings. Accordingly in his opinion Rules 3, 4 and 8 of Order 22 would have application to appeals. In this view of the matter he came to the conclusion that the appeal had not abated as a whole.