KESHO DASS Vs. UNION OF INDIA

JUDGEMENT

(1.) IN order to appreciate the controversy between the parties, the following facts may be noticed:-M/ s. Surjit and Co. obtained a money decree against the Union of India, for a sum of Rs. 32696/2/- on 24th July, 1954. An appeal was filed in the High Court by the Union of India against the said decree in which the amount was reduced from Rs. 32696/2/- to Rs. 10570/2/-, vide its judgment and decree dated 26th Oct. 1960. Before the execution proceedings were stayed by the High Court, the decree-holder realised the decretal amount on 10th Feb. , 1956, on furnishing security to the satisfaction of the Executing Court. Kesho Dass, appellant in the present appeal, stood surety for the refund of the amount in case the appeal was allowed. After the decision of the High Court, Union of India made an application under Section 144 read with S. 145 of the Civil, P. C. on 15th Dec. , 1962, against both i. e. the decree-holder M/s. Surjit and Co. , as well as against the surety Kesho Dass. During the pendency of that application, Kesho Dass appellant admitted the claim of the Union of India in his application dated 30th Oct. , 1963, which is Exhibit DE/4, on the record. He stated in the said application that in case the amount is not realised from the decree-holder, i. e. M/s. Surjit and Co. the balance may he deducted out of a decree standing in his favour against the Union of India passed by the Court on 16th June, 1961. Consequently, the Executing Court vide its order dated 21st Dec. , 1963, copy of which is Exhibit DH/3 on the record, consigned this application to the record room. On 21st July, 1964, again a second application for execution under S. 144 read with S. 145 of the Civil P. C. , was made, but the same was also consigned to the record room along with the application filed on 20th August, 1964, under O. 21, R. 68 of the Civil P. C. on 7th Nov. , 1964. The present application, out of which this appeal has arisen was filed on 16th April, 1970, to which Kesho Dass, surety, filed the present objection petition. The Executing Court framed the following issues on the pleadings of the parties:-1. Whether the execution application does not lie?

(2.) WHETHER the execution application is within time?

(3.) WHETHER the execution does not lie against the objector, without executing it against the J. D. ?