HARAKCHAND Vs. KHETDAN

JUDGEMENT

(1.) THIS is an appeal by the decree-holders Harakchand and another against the judgment and decree of the District Judge Balotra dated the 12th August, 1954 by which he reversed the judgment and decree of the Civil Judge Balotra and held that the decree-holders' application for execution was barred by time.

(2.) IT is necessary to state the following facts in order to appreciate the contentions which have been raised by the decree-holders in this appeal. The decree-holders obtained a decree for Rs. 4000/-and costs against Sameldan on the 13th september, 1932. Sameldan died during the course of the execution proceedings, and, therefore, his son Khetdan the present respondent was substituted on the record in place of Sameldan. The decree-holders filed an execution application on the 5th November, 1941, and this was dismissed in partial satisfaction on the 8th april, 1942. Thereafter they filed another application for execution on the 5th april, 1948. This was dismissed for default on the 24th September, 1948. A further application was thereafter filed on the 15th September, 1949, and it is this application out of which the present appeal arises. The judgment-debtor objected to the last-mentioned execution application mainly on two grounds. The first was that the execution application of 1949 was barred by time inasmuch as the execution application dated the 5th April 1948 was not in accordance with law and was therefore ineffectual to save limitation, and limitation started from the final order dated the 8th April, 1942, by which the execution application of the 5th november, 1941 was dismissed in partial satisfaction of the decree. Tiles second contention was that the judgment-debtor had paid Rs. 3533/-/s up to date. When the judgment-debtor gave particulars of the payments made by him, he admitted having paid a sum of Rs. 734/-, and it is not disputed that this payment was verified by the decree-holders before the execution court on the 8th february 1947. It may also be mentioned at this place that the decree-holder harakehand certified on his own admission two further payments of Rs. 331/-and rs. 250/- to the execution court on the 16th April, 1943, and the 9th February, 1945 respectively. These payments are not disputed either. The judgment-debtor also relied on some more payments but with these we are not concerned for the purposes of the present appeal. It may further be mentioned that Hukmichand one of the decree-holders died on the 2nd January, 1952, when the case was pending before the execution court. The case of the decree-holders is that on his death, they had applied to have substituted the name of another son of his, namely, Jeevraj in his place, Huk-michand's eldest son Harakehand being already on the record. It is contended that the judgment debtor had not impleaded Jeevraj in the appeal before the District Judge, and consequently that appeal was not properly constituted and deserved to be dismissed. It was further contended that Ladmal, one of the decree-holders being the brother of Hukmichand had died during the course of the appeal in the court below and the judgment-debtor applied to substitute Mst. Lehri, his widow, as his legal representative and this prayer was accepted. It is contended that the decree-holders were members of a joint Hindu family and mst. Lehri was substituted in place of Ladmal under a mistaken impression by the learned District Judge that the Hindu Women's Rights to Property Act 1937 applied to Rajasthan, and under this head the further contention is that Hukmichand's second son Jeevraj should have been brought on the record as Ladmal's legal representative, and that having not been done, the entire appeal abated for want of one of the legal representatives of Ladmal having been brought on the record. The executing court over-ruled the objections of the judgment-debtor and held that the execution application of 1949 was within time, On appeal the learned district Judge reversed that decision and came to the conclusion that the execution application of 1948 was not an application in accordance with law and, therefore, the present application having been filed in 1949 was filed more than six years of the final order dated the 8th April, 1942, passed on the next preceding application of November, 1941. The District Judge also held that Jeevraj, another son of Hukmichand was not a necessary party to the appeal filed before him inasmuch as the decree-holder's application for the substitution of the legal representatives of Hukmichand decree-holder on his death did not really contain Jeevraj's name, and the same appeared, according to the learned District Judge, to have been interpolated therein later. The learned District Judge further held that Mst. Lehri was the proper representative of Lad-mal to have been brought on the record, and in coming to that conclusion he placed his reliance on Section 3 of the Hindu Women's Rights to property Act of 1937. On the question of abatement of the appeal before him owing to want of Jeevraj having been brought on the record as Ladmal's legal representative, the learned Judge was of the view that Harakchand son of hukmichand was already on the record, and, therefore, the failure to bring Jeevraj also on the record as the legal representative of Ladmal could not result in the abatement of the appeal.

(3.) IN this appeal the same points have been strenuously mooted before me for the decree-holders and a further ground has been raised that the payments of 1943, 1945 and 1947 having been certified before the executing court were in themselves sufficient to extend the period of limitation, so as to bring the present execution application within time by virtue of the provisions of Section 20 of the limitation Act.