CHIMNA Vs. CHUNNILAL

JUDGEMENT

(1.) THIS it a special appeal against the judgment of a learned Judge of this court [see Chimna vs. Chunnilal (1953 R. L. W. 592 ). ] dated 9th of October, 1953,in a second appeal in execution.

(2.) THE brief facts giving rise to it are that the respondents Chunnilal, Bakhtawarmal and five others who were minors, obtained a decree against the appellant Chimna on 18th of March, 1948, for Rs. 3073/7/-on the basis of a mutual compromise. According to that decree, the appellant was to pay a sum of Rs. 700/-on Fagan Sud 11, Svt. 2004 Rs. 1,000/- on Baisakh Sud 15 of the same year and the rest thereafter. It was also provided that in default of the judgment debtor's making the payment on the due dates, the decree-holders would be entitled to recover the entire decretal amount. On the 1st of July, 1940, an application was presented for the execution of the decree. It was stated that Rs. 700/-were received on 2nd of April, 1948, but the second instalment of Rs. 1000/-was not paid in time and, therefore, it was prayed that the judgment-debtor be directed to pay the entire decretal amount. THE judgment-debtor raised an objection that he had gone to the decree-holders' house at Falna on Baisakh Sud 13 and 14 but neither Chunnilal nor Bakhtawarlal was there. THEn he against went on Baisakh Sud 15 with Rs. 1,000/ -. That day also Chunnilal and Bakhtawarlal were not present at their house at Falna and so he went to Khudala. THEre he met Chunnilal and Bakhtawarlal and offered them Rs. 1,000/- but they avoided acceptance of payment by a pretext. Later on he deposited Rs. 1,000/- in the court on 1st of July, 1948. His contention was that the had not failed to keep his promise and so the decree-holders were not entitled to realise the entire amount. THE executing court dismiss-ed the objection. THE judgment-debtor went in appeal to the District Judge, Pali, but he got no success and, therefore, he filed a second appeal in this Court.

(3.) COMING to the fourth point, the question for determination is whether in an application under Order-XXI Rule 15 it would be necessary to implead all the decree-holders as parties in appeal. As stated above, an application under this rule would be considered to be an application only by those persons who have actually made the application even though such an application is made for the benefit of all the decree-holders. This is a special provision which has been made in order that a judgment-debtor may not be harassed by a number of applications for execution against him. When an application is made under this rule, it is the duty of the court, before allowing the execution of the decree to proceed, to see that there is sufficient cause for allowing the decree to be executed on such an application and it must take such steps as may be necessary in the circumstances of the case to protect interests of the persons who have not joined in the application. When this is done, then it would follow that the persons who have made the application represent the interest of all the decree-holders. Under such circumstances, if it becomes necessary at any stage to file an appeal against the order of the executing court in the higher court, then it would not be necessary that all the decree-holders must be impleaded by the party filing the appeal. If the persons filing the application represent the interest of all the decree-holders in the court of execution, there is on reason why they should not represent the other decree-holders in appeal. Of course, if the appellate court thinks that it is necessary to safeguard the interests of other decree-holders, it can and should bring them on the record of the appeal. If there is a danger that the interests of the decree-holders who are not directly parties to the appeal will be affected, then it would only be proper that they should also be ordered to be impleaded; but in case on such order is made, then the mere fact, that a party filing the appeal has hot impleaded them, would not be fatal to the prosecution of the appeal.