SHRILAL Vs. KANIRAM

JUDGEMENT

(1.) THIS is an appeal by the decree-holder. The decree was originally obtained by Shrilal and Ram Vilas against Kaniram and during the course of execution proceedings after an adverse order had been passed against them, they filed an appeal in the court of the District Judge. That appeal was partially accepted and the case was remanded for fresh disposal after determination of a certain point which was in dispute between the parties. The appeal against this order was presented in this court on 8th of September 1949. It was urged on behalf of the respondents that the appeal had abated for two reasons: - (1) That Kaniram had expired on 25th of September 1949 and an application for impleading his legal representatives had not been made within the period prescribed % (2) That Shrilal, one of the decree-holders, had also expired some time after the filing of the appeal and on 18th of December 1950 Ramvilas stated in this court that he did not want to bring his legal representative on the record.

(2.) THE learned counsel appearing on behalf of Ram Vilas urged in the first instance that the provisions of Order XXII C. P. C. were not applicable to proceedings in execution of a decree or order. So far as that contention goes, it is correct but the question which arises in this case is whether these provisions apply to appeals against orders in execution proceedings. It appears that almost all the High Courts viz. Bombay, East Punjab, Madras, Allahabad, Lahore, Nagpur, Oudh, Sindh and Calcutta have held that an appeal against an order made in execution proceedings is not itself a proceeding in execution of a decree and that such appeals are subject to the same rules in regard to abatement as any other appeals. THE learned counsel for the appellants has cited certain over-ruled judgments of the Nagpur and Lahore High Courts and, in the circumstances is not able to controvert the correctness of the decisions of the various High Courts mentioned above. THErefore, I have no hesitation in repelling the contention of the learned counsel on this point. He next drew the attention of the Court to an application filed by him on 19th of January 1951 under O. 21, R. 9 and submitted that even if the appeal had abated, there was a sufficient cause for the abatement being set aside. THE application mentions three grounds on which it is sought to be set aside and these are as below: - (1) That the appellant was not familiar with court proceedings; (2) That his deceased brother Shrilal was pursuing the application for execution and not the appellant; (3) That on account of the Bench of the High Court having been abolished from Udaipur the file of the case was not traceable.