RAMESHWAR PRASAD BHAGAT Vs. RAM RATAN RAM

JUDGEMENT

(1.) This is an appeal by a decree-holder whose application for execution has been struck off by the Subordinate Judge of the Santal Pargannas.

(2.) The facts of the case are briefly these: The decree which is sought to be executed was passed in favour of two persons, namely, Ganesh Lal Bhagat and the appellant Rameshwar Prasad Bhagat on 8 January 1918 in the Birbhum District. On 23 June 1928 it was transmitted to the Court at Rajmahal for execution. On 30 July 1929 Ganesh Lal Bhagat one of the decree-holders died. On 13th December 1929 Rameshwar Prasad Bhagat applied for execution of the decree.

(3.) It may be stated here that both Ganesh Lal and Rameshwar Prasad Bhagat were members of a joint family and as a result of the death of Ganesh Lal Bhagat, Rameshwar Prasad Bhagat became the sole person interested in the decree by right of survivorship. Two objections were taken on behalf of the judgment- debtors before the learned Subordinate Judge. It was urged in the first place that the appellant should have under Order 21, Rule 15, Civil P.C., mentioned the fact of Ganesh Lal Bhagat's death in that execution petition itself and the fact not having been mentioned, the petition for execution could not be amended at a later stage. The second objection was that properly speaking the interest of Ganesh Lal Bhagat had been transferred to the appellant by operation of law and therefore under Order 21, Rule 16, Civil P.C., the appellant should have made his application for execution to the Court which originally passed the decree.