GOVIND SINGH Vs. DEORAJ

JUDGEMENT

(1.) THIS case comes before us on a reference made by a Single Bench of this court. The question referred is as follows:

(2.) BEFORE we proceed to answer the question, it would be proper to set out briefly the facts which have given rise to the point referred to us. On 27-11-1943, respondent Deoraj, obtained a money decree against appellant, Govind Singh. On 20th October 1949, the decree-holder presented ,an application for execution, but it was dismissed for default on 19-12-49. Thereafter, a second application for execution was presented on behalf of the decree-holder on 16-12-52. It was registered on 20-12-52 and a notice under Order21, Rule 22, C. P. C. was ordered to issue against the judgment-debtor. On 24-1-53 the case came for hearing before the Court. On that day, judgment-debtor was absent and so the court gassed an order, in his absence, for attachment of his property and the case was fixed for hearing on 21-3-53. On that day judgment-debtor's counsel presented an application and raised an objection that the second execution application dated 16-12-52 was not validly presented. It was pointed out that it was presented by a person who was not properly authorised by the decree-holder and so the execution application was not in accordance with law. When this application was presented it was found that Shri Kishan Mal Vakil who had presented the execution application on 16-12-52 had got his vakalatnama signed by the decree-holder's brother, Mohan Raj instead of the decree-holder though the execution application itself was signed by the decree-holder, Deoraj, himself. On 4-4-1953, Shri Kishan Mal presented a proper vakalatnama. It was urged on behalf of the judgment-debtor that subsequent presentation of a proper vakalatnama by Shri Kishan Mal. could not cure the defect of the invalid presentation of the execution application and that if the execution application be deemed to have been presented on 4-4-1953, it would be time barred. It was contended on behalf of the decree-holder that Deoraj and Mohan Raj were real brothers, that there were several decrees in favour of both the brothers jointly, that the present decree was in favour of Deoraj only but Shri Kishan Mal, got the vakalatnama signed by Mohanraj under the impression that it was ii joint decree in favour of both, that this was a bona fide error which could be condoned by the court and it was, therefore, not fatal. The executing court dismissed the judgment-debtor's objection on the ground that the error pointed out by him was only a procedural irregularity arising from a bona fide mistake on the part of the decree-holder's counsel. Against the said order dated 12-12-53, the judgment-debtor went in appeal to the District Judge, jodhpur, but since he got no success, he filed a second appeal to this court.

(3.) THE Judge who heard the appeal in Single Bench found that there was conflict of views amongst various High Courts on the question involved in this case and so he has referred the question set out above.