KAMAL MISHORE NARAYAN CHOUDHARY Vs. BIRJENDER NARAIN CHOUDHARY

JUDGEMENT

(1.) THIS appeal arises out of an application under Section 47, Civil P.C., which has been dismissed by both the Courts below. It is necessary to give some of the facts in order to appreciate the point of law raised by Mr. Lakshmi Kant Jha appearing on behalf of the appellant. One Mt. Karanphul executed a mortgage bond in favour of Damodar Narain Choudhury for a sum of Rs. 250. On the foot of this mortgage bond a suit was instituted which was No. 36 of 1927. A decree was passed which was upheld in appeal. In that suit the defendants were not only the executant of the mortgage bond but also some of the presumptive reversioners. The decree was passed jointly against all the defendants for a sum of Rs. 200 and for Rs. 50 against the widow alone. The reversioners happen to be father and son and are respectively, defendants 2 and 3 in this suit, the son being a minor. In the suit itself a guardian was appointed by the Court. On 11 August 1932 execution was taken out by the decree-holder, in which the minor defendant 3 was mentioned as under the guardianship of a person not nominated by the Court. The sale was held on 9 January 1933, and delivery of possession was taken on 16 December 1933. But on an objection raised by the minor the sale was ultimately set aside on 29 June 1938. The decree-holder then initiated the present execution proceedings on 5 March 1939. The chief objection raised by the present appellant is that the present execution is barred by time inasmuch as the sale that was held originally in the first execution proceedings was set aside as being vitiated by fraud and, therefore, it could not be said that those proceedings were a step-in-aid of execution. Moreover, it is said, that defendant 3 was not described in the first execution proceedings as being under the guardianship of a person appointed by Court, and therefore, it was not in accordance with law as contemplated by Order 21, Rule 11, Civil P.C.

(2.) WE are concerned in this case chiefly with the question whether the first execution proceedings was a step-in-aid of execution. It must be remembered that in those proceedings not only the widow but the father of the present minor were mentioned as judgment-debtors and, although the person who was mentioned as the guardian of the present appellant was not nominated by the Court, yet the execution case was there and at least two of the judgment-debtors were correctly impleaded. The argument of Mr. Jha, as I understand it, is that because the present appellant's guardian was not a proper guardian appointed by Court the first proceedings was not a step-in-aid of execution. That is a contention which cannot be accepted in the circumstances of the ease. A case very much in point is to be found in Ramasray Chaudhuri V/s. Lashhmi Narayan A.I.R. 1927 Pat. 416 where it was held that in the case of a joint and several decree, an application for execution made against any one of the judgment-debtors is a step-in-aid of execution against all. Mr. Jha has tried to distinguish this case by pointing out that it may be all right to mention only one of the judgment-debtors but it would be quite different if one of the judgment-debtors is correctly mentioned and the other is not correctly mentioned. I am afraid, this contention cannot prevail. A similar view was expressed in Jogendra Prasad Narayan Singh V/s. Mangal Prasad Sahu A.I.R. 1926 Pat. 160 where their Lordships of this Court have explained as to what is meant by the expression "an application in accordance with law" and said that the word "law" in the expression does not refer only to the Civil Procedure Code. On the arguments advanced and in the circumstances of the case, I am of opinion that the view taken by the Courts below that the case comes well within Clause (5) of Art. 182, Limitation Act, is correct. I would dismiss the appeal with costs. Rowland, J. I entirely agree.