SITARAM Vs. TARACHAND

JUDGEMENT

(1.) THIS appeal is directed against the order dated May 26, 1959, passed by the Senior Civil Judge, Ajmer, dismissing the objections of the judgment-debtors-appellants under sec. 47 of the Code of Civil Procedure in the execution case.

(2.) THE relevant facts, though not elaborately set out in the order under appeal, are not disputed by the parties and they may be briefly indicated as follows. THE decree-holder-respondent instituted a suit for recovery of certain ornaments which were said to have been in the custody of Bengali Lal, and in the alternative, for recovery of the value thereof amounting to about Rs. 26,000/ -. THE suit was filed in December, 1945. A written statement on behalf of Bengali Lal was presented sometime in March, 1947, denying his liability. It is said that Bengali Lal was mentally infirm at the time and therefore the written statement was presented by a guardian on his behalf. Bengali Lal died during the pendency of the suit and in December, 1948, his sons, who were then minors, and, who are the present appellants before us, were impleaded as heirs and legal representatives of the deceased. Later, in the course of the proceedings in May and August, 1953, two properties belonging to the joint family of Bengali Lal and his sons, the appellants, were ordered to be attached before judgment. In July, 1955, Sita Ram, one of the appellants here, who had by that time attained majority, filed an objection to the attachment before judgment. This objection was not| finally decided, but the suit itself was eventually decreed on April 30, 1957, for a sum of Rs. 113,875/- with proportionate costs. THE decree was passed against the appellants as legal' representatives of the deceased Bengali Lal and no decree for the return of the ornaments could be made as the where abouts of the ornaments were not known. Execution proceedings followed almost immediately thereafter on May 16, 1957. As the proceedings were initiated within a year of the date of the decree no notice under Order XXI rule 22, Civil Procedure Code was served, but a notice under Order XXI, rule 66 for settlement of the terms of the sale proclamation was issued to the appellants. In response to that notice the judgment-debtors filed their objections on May 1, 1958, and raised various pleas against the execution of the decree. THE decree-holder presented his reply to the objection of the judgment-debtors on May 15, 1958, and the executing court framed a number of so called issues for the purpose of deciding the objections raised. It appears that, with a view to enable the judgment-debtors to adduce evidence in support of their objections, time was given to them on various occasions. In his order under appeal the learned Civil Judge pointed out that since August 16, 1958, the matter had been pending to enable the judgment-debtors to produce their evidence and on November 8, 1958, the judgment debtors were warned that they should obtain copies of the necessary documents and present them in court; yet they did not comply with the order without any reasonable explanation nor did they pay even the costs which they were directed to pay as a condition precedent to their obtaining adjournments. THErefore, there was nothing on which the objections could be determined and he accordingly rejected the objections by his order under appeal and directed that steps should be taken for the sale of the properties attached. It is against this order that Mr. Johari has come up in appeal on behalf of the judgment-debtors.