BANKE BEHARI LAL Vs. RAGHUBAR DAYAL

JUDGEMENT

(1.) This is an execution second appeal by the judgment-debtor arising out of a suit for sale. After the preliminary decree for sale was passed one of the judgment-debtors Duli Chand died. An objection was raised on behalf of the other judgment-debtors that his heirs not having been brought on the record within three months the suit had abated. This objection was overruled and a final decree was passed on 8 April 1922. The surviving judgment-debtors appealed to the lower appellate Court. While that appeal was pending the decree-holder Babu Ram on 7 October 1922, assigned his rights and interests in the decree to Raghubar Dayal. Raghubar Dayal made no attempt to have his name brought on the record in the appeal. The decree-holder alone contested it. The lower appellate Court decreed the appeal against the decree-holder and presumably modified it so far as the deceased judgment-debtor was concerned. The decree-holder preferred a second appeal to the High Court which was ultimately allowed and on 20th February 1925, the final decree in the form in which it had been passed by the trial Court was restored. Raghubar Dayal had not been made a party either in the appeal before the lower appellate Court or in the second appeal in the High Court.

(2.) On 13 March 1926, Raghubar Dayal applied to execute the decree and was met with the objection that his application was barred by time. Both the Courts below have held in favour of the decree-holder and have allowed the application.

(3.) It seems to me that the application cannot be held to be barred by time. No doubt when the decree was assigned to Raghubar Dayal in October 1922, he might have applied to have his name brought on the record in the appeal or even ignoring the appeal he might have applied for execution of the original decree. But after the decree was modified by the lower appellate Court it would have been difficult for him to apply to execute the decree in its original form.