BRAJASUNDER DAS Vs. RADHA PRASAD BHAGAT

JUDGEMENT

(1.) This appeal arises out of an execution proceeding which the appellant sought to resist in the Court of the Subordinate Judge of Cuttack, on two principal grounds: (1) that the decree was barred by limitation and (2) that the application for execution was not in accordance with law. It appears that the decree was passed on 25 November 1927.

(2.) The first execution petition was filed on 10 May 1929, and the present execution proceedings were started on 3 April 1930. It was contended by the appellant that the execution petition of 10 May 1929 was neither in accordance with law nor could it be regarded as a step-in-aid of execution inasmuch as out of the two executors to the estate of the judgment-debtor only one, namely, Brajasundar Das, had been made a party to that application and the other executor, namely, Lalmohan Patnaik had not been made a party. In reply to this contention it was pointed out on behalf of the decree-holder that shortly before the execution proceedings of the year. 1929 were started, the appellant had executed a sale deed on 11 February 1929 in which he had stated in clear terms that Lalmohan Patnaik had filed a petition of resignation in the High Court and the High Court had removed his name from the category of executors on 12 January 1929. Reliance was placed on behalf of the decree-holder also on Ex. A, a petition filed by the appellant on 16 February 1929, which runs as follows: After the institution of the said execution case the petitioner's co- executor Babu Lalmohan Patnaik tendered his resignation to his post of executor and the High Court has accepted the same. The petitioner is qualified under law to conduct the said execution case alone. As the said Lalmohan Patnaik tendered resignation, it is necessary that the petitioner should take permission to conduct the said execution case singly. Therefore the petitioner begs to file this petition for permission and prays that permission for conducting the said execution case singly be granted to him.

(3.) Evidently this prayer was allowed and the property which was sought to be proceeded against by the decree-holder in the execution proceedings of the year 1929 was purchased in the name of the appellant only. Before the learned Subordinate Judge two witnesses were examined on behalf of the appellant, one of whom admitted that Lalmohan Patnaik had applied before the High Court renouncing his executorship and that for the last four or six years Brajasundar Babu had been defraying the expenses of the estate and that the accounts were with him. It was however also stated that Lalmohan Babu had not yet been discharged from the executorship. It is noticeable that the order sheet of the High. Court has not been filed on behalf of the appellant and the question has to be decided as to whether the oral evidence adduced on behalf of the appellant is sufficient to displace the admission made by him in Exs. A and B where in it was stated in clear terms that the High Court had removed the name of Lalmohan Patnaik from the executorship. The appellant himself did not come to the witness box to explain his admission and it would seem difficult in these circumstances to hold that his admission can be entirely ignored in these proceedings.