GHULAM NABI SEH Vs. GAFFER WAGEY

JUDGEMENT

(1.) This revision is directed against an order dated 4-9-1980 passed by Sub Judge, Anantnag dismissing an execution application. The decree was passed on 15-9-1971'. After sometime an execution petition was filed which was signed and verified by a Vakil who was not duly authorised. That petition was, however, consigned to records on 6-5-1974. Subsequently another execution petition was filed which was again signed by a Vakil who was not duly authorised. The Executing Court of Sub Judge, Anantnag, relying upon, the decision in Appaji Chetti v. Govindasami Reddi, AIR 1937 Mad 760, held that both the applications having been made by a Vakil who was not duly authorised, they were not in accordance with law and consequently the second application was liable to be dismissed as incompetent and time-barred. The court passed an order accordingly.

(2.) In the case of Appaji Chetti (supra) it has been observed as follows :-

(3.) With respects, I am not inclined to agree with this view. Order 21, Rule 10 saps, "where the holder of a decree desires to execute it, he shall apply to the Court which passed the decree", whereas Order 21 Rule 11 (2) enables the applicant either, to move the application himself or through some other person acquainted with the facts of the case. Rule 10 and Rule 11 (2) of Order 21 are complementary to each other Rule 11 (2) is intended to convey that the decree-holder need not necessarily move personally for the execution of the decree. He can have it done through some other person acquainted with the facts of the case. In the case of Appaji Chetti (AIR 1937 Mad 760) (supra) a distinction appears to have been drawn between an application proper and the form of an application and it is on this basis that Rule 10 has been distinguished from Rule 11(2). To my mind, the distinction appears to be more artificial than real. An application is a request, whether it is in one form or the other and as such where a form of an application is prescribed it does not cease to be a request. In my opinion Rule 11 (2) enacts a special rule which is peculiar to the execution appli-cations only. By virtue of Rule 11 (2) read with Rule 10 of Order 21 and Order 3, Rule 1 as execution petition can be moved not only by a decree-holder or his recognised agent of a pleader acting on his behalf only but also by some other person who is acquainted with the facts of the case. Where an execution petition is moved by person other than the decree-holder or his recognised agent or a pleader acting on his behalf, it must be proved to the satisfaction of the Court, that such person was acquainted with the facts of the case, of course, only if his competence to move the application is challenged by the other side. iN this view the lower Court ought not to have dismissed the application merely on the finding that the execution application was moved by a Vakil who was not duly authorised. On the other hand, the Court ought to have gone into the question as to whether he was a person who was acquainted with the facts of the case and decided the application accordingly. Since the Court has not done so, the order is not sustainable in law and must be set aside.