OFFICIAL RECEIVER Vs. HIRA LAL

JUDGEMENT

(1.) This is an appeal by the decree-bolder arising out of an execution proceeding. A simple money decree was passed on 1 August 1924, and an application, which was in accordance with law, was made on 23 July 1927, for execution, but had become infructuous because the decree-holder was unfortunately murdered. On 18 June 1930, an application was made on behalf of his three sons for substitution of their names and for execution of the decree. The application was signed by a pleader and was accompanied by a vakalatnama in which however the place meant for the name of the pleader was left blank, and the vakalatnama did not bear any signature of the pleader showing that he had accepted it. The facts were overlooked by the office, and the Court ordered notices to issue to the judgment-debtors. They did not appear to show cause or raise objections. The Court accordingly ordered that the names of the sons of the deceased decree- holder should be brought on the record in his place and that execution should proceed. The proceeding however did not fructify and the execution case was ultimately struck off.

(2.) On 14 November 1930, a fresh application for execution of the same decree was made and notice ordered to issue. The judgment-debtor on this occasion appeared and objected that the present application was barred by time inasmuch as the previous application of 18 June 1930, was not an application in accordance with law. The Courts below disallowed the objection on the ground that it was no longer open to the judgment-debtor to raise any such plea. In second appeal a learned Judge of this Court has come to the conclusion that the judgment-debtor is not prevented from raising this matter.

(3.) So far as the defect in the vakalatnama is concerned, the point is covered by the authorities of this Court, namely, Muhammad Ali Khan V/s. Saktu (1913) 19 I.C. 674 and Chitta V/s. Jafo 1931 All. 767. The application as filed had not been filed by a duly authorised person and was not in accordance with law.