NAWAB NUZHAT-UD-DOWLA Vs. BENI MADHAB

JUDGEMENT

(1.) This appeal arises out of an order passed under Section 47, C.P.C. The judgment-debtor is the appellant in this appeal. The application for execution was, filed by one Prince Sultan Hossain Mirza on the 11 April, 1922, for execution of a decree passed in Original Suit No. 3 of 1900 of the Court of the Additional Subordinate Judge, of 24-Pergahas which was ultimately affirmed by the Privy Council in Appeal No. 16 of 1903. The learned Subordinate Judge has held that the application is maintainable under the provisions of Section 47 of the C.P.C.

(2.) The decree in question was in favour of one Prince Nanhey Mirza and others. By transfer of certain interests in the decree the persons who, have become entitled to the decree-holders interests re these: A 10-annas share was sold to one Mehdi Hossain who in his, turn sold 4- annas out of his 10-annas to one Lala Mohun Lal. The 6:annas that remained with the original decree-holders have now been inherited. by three persons, namely, Sultan Hossain. Mirza, Nawab Akbari Begum and Nawab Dilband Begum. The first one of these persons is the executing decree-holder. The 6-annas share which remained with Mehdi Hossain after transfer to Lala Mohun Lal of the 4-annas out of the 10 annas purchased by him has now devolved on his death on his widow Haidari Begum, his two daughters Zakia Begum and Taiba Begum and his two sons Nazir Hossain and Abid Hossain. Nazir Hossain and Abid Hossain have been declared insolvents and. the 3 1/2-annas share which they inherited is now in the hands of the Receiver appointed in the insolvency proceedings, namely, one Pravudayal Rastogi. The 2 1/2- annas share which belonged to the widow and the two daughters of Mehdi Hossain, namely, Haidari Begum and Zakia Begum and Taiba Begum is now in the hands of the administrators to theestate left by them, namely, Beni Madhab and Basanta Roy. Beni Madhab and Basanta Boy are also the heirs of Lala Mohun Lal to, whom Mehdi Hossain had sold 4-annas out of the 10-annas purchased by him.

(3.) The objections put forward on behalf of the appellant in this appeal are mainly three. The first objection is that the application for execution is not maintainable, inasmuch as there are defects in it and because it is not complete. It is urged that the necessary particulars have not been embodied in the application and furthermore, when it is an application under Order XXI, Rule 15, C.P.C. it should contain the names of all the decree holders who are interested in the decree so that notices of the application may be served on them. It appears that, in the application for execution, besides the names of the executing decree-holders, who are interested the names of certain other persons are given, namely, those of Beni Madhab and Basanta Roy and also of Nawab Dilb and Begum and Nawab Akibari Begum. The names of Beni Madhab and Basanta Roy are mentioned; but it is not stated whether they are there in their capacity as administrators to the estate of Haidri Begum, Zakia Begum and Taiba Begum or as heirs of Lala Mohun Lal. It is contended on behalf of the appellant that this is one of me defects in the application. The other defect in the application that is complained of is that the names of Nazir Hossain and Ibid Hossain are not mentioned nor does he name of Pravudayal Rastogi who has been appointed Receiver to their estate, appear therein as one of the decree- holders. Applications have been filed subsequent to he institution of these proceedings both by the Receiver, Pravudayal Rastogi, as also by the administrators, Beni Madhab and Basanta Roy, giving their consent expressly o the execution proceedings. The question now arises as to whether the omission in the part of the applicant for execution if the decree to mention the names of these persons and the interests which they have n the decree is such a defect as would be sufficient for holding that the proceedings are incomplete and, therefore, invalid. On reference to Order XXI, Rule 11, C.P.C. it appears that, so far as the names of parties are concerned, all that is necessary to be stated in the application is, first of all, the names of the parties to the decree and then the name of the person against, whom execution of the decree is sought. These particulars have to be embodied in the application so that there may not be any difficulty in the matter of identification of the decree, in respect of which execution is sought for. I am not prepared to hold that the omission on the part of a decree-holder to state in the application for execution the names of all the persons who are interested in the decree is such a defect as would invalidate the execution proceedings It is quite true that when an application is made under Order XXI, Rule 15, C.P.C., by one of the decree-holders for execution of the whole decree which has been passed jointly in favour of himself and others, the Court has got to pass proper orders in order to protect the interests of all the decree- holders; but, in my opinion, it is not absolutely necessary that the names of all the decree- holders should be given in the execution petition by the executing decree-holder. As has been held in the case of Durga Das Nandi V/s. Dewraj Agarwalla 33 C. 306 : 306 : 3(sic) C.L.J. 112 : 10 C.W.N. 297 it is in the discretion of the Court whether or not notice should be given to the other decree-holders or to the judgment-debtor before making an order for execution under Order XXI, Rule 15, C.P.C. but it is not obligatory upon the Court to issue such notice. In the present case, the other decree-holders having subsequently come in and having given consent to the execution of the decree and there being no reason to suppose that their Interests have not been properly safeguarded, I am unable to say that this defect is one which would invalidate the proceedings in any way.