MADHORAM SAND Vs. LACHMI PRASAD SINGH

JUDGEMENT

(1.) This appeal has been preferred from an order of the Subordinate Judge of Monghyr dismissing an execution case on the ground that it was barred by limitation. The decree which was for money was obtained in the Court of the Subordinate Judge of Benares in 1917. There were execution cases in that Court in 1919, 1921 and 1923 by means of which the decree was partly satisfied. The fourth-case was numbered 166 of 1925. In that case on 20 May 1926 after attachment of movable property belonging to the judgment-debtor the decree holders were directed to take further action in the matter of the sale proclamation within a week, but on 25 May, when the decree-holders had still two days in which to comply with the order, information was received by the Court that the sale had been stayed by the High Court.

(2.) The order then made was that the execution case would be struck off with costs to the decree-holders, the order of attachment being kept in force. Within three years from the date of that order, that is to say on 11 August 1928, the decree-holders made another application for execution of the decree in which the following prayer was made: As Pandit Sheoramji Sand, son of Maniram Sand, one of the decree- holders died while a member of the joint Hindu family and the petitioners decree-holders are jointly in possession and occupation of all his heritage by right of survivorship and inheritance they are entitled to recover the decretal money. Hence a notice for substitution was at first issued and the property under attachment which is on sale was attached in execution case No. 166 of 1925; the execution case went up to the High Court in appeal on the objection of the judgment-debtor under the decree; but the appeal having been dismissed it has come back. Hence the notification of sale may be issued and the entire amount of the decree and the costs of execution may be realised by sale of the properties under attachment.

(3.) The application was made by the original decree-holders and the heirs of the deceased decree-holder Sheoramji Sand. This application is noted in the order sheet as having been filed as an execution petition on 11 August 1928 and a report on it was called for from the office, On perusal of the report the Court directed that the application for execution should be entered in the register of miscellaneous cases for disposal of the substitution matter and it was not numbered as an execution case until 20 July 1929 when proof was given of notice of the application to the judgment-debtor by publication in a newspaper, personal service of the notice having proved ineffective.