LAXMILAL Vs. ONKARLAL

JUDGEMENT

(1.) THIS is an execution first appeal by the judgment-debtors Laxmilal and another against an order of the Civil Judge, Udaipur, dated 20th December, 1951.

(2.) THE facts are briefly these. One Onkarlal, proprietor of the firm Shrilal Kistoorchand obtained a decree against the entire Punches of village Nerach for Rs. 6006/13/-only from Adalat Sadar Dewani on 30th January, 1920. THE decree-holder then appealed to the Mahendraj Sabha on the point of interest and was successful in having the amount of the decree enhanced to Rs. 7509/13/ -. It may be pointed out that although the decree obtained by Onkarlal appears to have been passed against certain individuals also, namely, Tolaram, and Nenuram (among others) whose sons respectively are the present appellants, Laxmilal and Chaturbhuj, the decree was clearly passed in this case against certain persons named therein as mukhias or representatives of village Nerach, and not in their personal capacity. No decree was prepared in this case and naturally we do not have it before us; but what we have stated above clearly appears from a certified copy of a judgment of the Mahendraj Sabha, dated Asad Vadi 13, Svt. 1978, which is on the record. THE decree, holder took out his execution of the decree from time to time and in this connection we need refer only to his applications made in 1944 and 1951. As regards the application filed in 1944, it was dismissed in 1950 THEreupon another application was filed on 18th January, 1951, out of which the present appeal arises. On 1st December, 1951, the present appellants raised certain objections to the execution of the decree. THEir objections briefly were four in number, (1) that as no decree had been prepared in the present case when it was finally decided, execution under the Code of Civil Procedure could only be of a decree and, therefore, could not proceed in the absence of such a decree ; (2) the execution application dated 18th January, 1951, was barred by time, as it was made beyond 13 years of the appellate decree of the Mahendraj Sabha dated 23rd June, 1922, by virtue of the provisions of sec. 48 C. P. C. ; (3) the decree-holder had actually recovered more than the decretal amount in satisfaction of the decree ; and (4) the decree-holder had sought to attach the personal property of the judgment-debtors and that that could not be done as the decree was passed against mukhias of the village not in their personal capacity but as representatives of the entire village. THE executing court repelled all these objections and held that the decree was executable. Hence the present appeal.