BHUBNESHWAR NARAYAN SINGH Vs. LOKENATH DHANDHANIA

JUDGEMENT

(1.) This is an appeal against the decision of the Additional District Judge of Bhagalpur who set aside the decision of the Subordinate Judge of Madhipura. The appeal is on behalf of the judgment-debtor objecting to the execution of a decree. On 23-6-1937, a compromise decree was obtained by one Lokenath Dhandhania, and it was directed by that decree that the sum of Rs. 3,094/- was to be paid by 15-8-1939. The decree was actually registered on 30-9-1937. The first execution which took place concerning the decree was on 20-1-1941, and it was sought to be executed by one Rameshwarlal Jhunjhunwala. It was dismissed on the ground that the application was untenable. The estate of Lokenath Dhandhania was the subject of partition in partition Suit No. 998 of 1939 in the High Court of Judicature at Calcutta. In Extraordinary Suit No. 4 of 1939, Naresh Mohan Thakur, Kamaldhari Lal, Bansidhar Dhandhania and Rameshwarlal Jhunjhunwala were appointed receivers. The receivers applied for appointment of trustees, On 3-6-1940, Rameshwarlal Jhunjhunwala and Rawat Mul Nanpania were appointed trustees. The second application for execution was made on 20-12-1941, by Rameshwarlal Jhunjhunwala and Rawat Mul Nanpania, and this was dismissed on 27-8-1943. The third application for execution was made by Rameshwarlal Jhunjhunwala and Rawat Mul Nanpania on 2-3-1944. This was also dismissed on 27-3-1944 for default and the present application for execution filed by Rameshwarlal Jhunjhunwala Rawat Mul Nanpania and Lokenath. Dhandhania was made on 29-7-1946, but was dismissed on 10-4-1948, by the Subordinate Judge whose decision was reversed by the Additional District Judge from whose decision the present appeal has been filed.

(2.) The sole question in the appeal is as to whether the present application for execution is within time. For the purposes of the present case, one might ignore the application made by Rameshwarlal Jhunjhunwala for execution of the decree on 20-1-1941. The second and third applications made by Rameshwarlal Jhunjhunwala and Rawat Mul Nanpania purported to state that the application was under Order 21, Rule 16, Civil P. O. It was held in the second execution proceedings that Rameshwarlal Jhunjhunwala and Rawat Mul Nanpania had not proved that they were the transferees or the assignees of the decree in favour of Lokenath. Dhandhania. So far as that matter is concerned, for the purposes of the present appeal one must proceed on the basis of that finding whatever knowledge the Court may possess today whether, in fact, Rameshwarlal Jhunjhunwala and Rawat Mul Nanpania were transferees or assignees by operation of law in view of their having been appointed trustees.

(3.) The main submission made by Mr. Chatterjee on behalf of the appellant has been that as the decree did not stand in the name of Rameshwarlal Jhunjhunwala or Rawat Mul Nanpania, they could not have executed the decree of Lokenath Dhandhania. Consequently, the applications for execution filed by them on 24-12-1941 and 2-3-1944 were invalid and could not be said to be applications in accordance with law. The question as to whether these two persons were transferees or assignees of the decree by operation of law could not now be gone into. They were strangers to the decree and had no 'locus standi' to execute it. Mr. Sinha for the respondents, however, relied upon the finding of the Additional District Judge to the following effect: