MT NASIBAN Vs. SURENDRA NATH KARAN DEO

JUDGEMENT

(1.) It appears that in Title Suit No. 2 of 1934 the respondents had obtained against the appellants a decree for costs amounting to Rs. 440 and the appellant's sons and daughters had obtained a decree for costs amounting to Rs. 410 against the respondents. These decrees were passed on 22 December, 1938 and the present execution ease was filed on 22 December, 1941 by the respondents for the execution of their decree for costs. The appellants objected to the execution on several grounds, one of which was set out in the objection petition in these words: That when execution proceedings were going to be taken on behalf of the sons and daughters of the judgment-debtors an agreement was arrived at that both the parties would adjust their dues and no one party will have any claim against the other and no one party will bring any execution case against the other.

(2.) The learned Subordinate Judge before whom the execution case was pending disallowed this objection mainly on the ground that under Order 21, Rule 1, Civil P. C, no adjustment could be taken cognizance of by the executing Court unless it was certified or recorded as provided by law. The appellants have now preferred this appeal. In my opinion, it is unnecessary to go into the question as to whether there was a legal adjustment of the decree or not because the appeal must succeed on another ground. Prom the execution petition it appears that there were no less than five persons in whose favour the decree under execution was passed. The present execution petition was filed by only four of the decree-holders and it was not staied in the petition that these decree-holders intended to execute the decree on behalf of and for the benefit of all the decree-holders under Order 21, Rule 15, of the Code. Subsequently on 7 February 1942 the decree-holders applied for adding the name of the fifth decree-holder and this was allowed. Order 21, Rule 17 of the Code provides that on receiving an application for the execution of a decree the Court shall ascertain whether such of the requirements of Rules 11 to 14 as may be applicable to the case have been complied with and if they have not been complied with the Court may reject the application or may allow the defect to be remedied then and there or within a time to be fixed by it. It further provides that where an application is amended under the provisions of Sub-rule (1), it shall be deemed to have been an application in accordance with law and presented on the date when it was first presented. The question is whether the amendment in the present case was one contemplated by Order 21, Rule 17.

(3.) As I have already stated, the original execution petition was filed by only some of the decree-holders, but as a result of the amendment it became an execution petition on behalf of all the decree-holders. Such an amendment which had the effect of changing the whole character of the execution petition is not contemplated in Rule 17 and should not have been allowed. There can be no doubt that the application of 22 December, 1941 was not an application in accordance with law. It was not an application on behalf of all the decree holders and it did not purport to be an application under Order 21, Rule 15 because it did not state that the decree was to be executed for the benefit of all the decree-holders. The application which may be treated as one made in accordance with law was the amended application but this application was time barred as the amendment was made after the expiry of the period of limitation. Therefore the present execution must be held to be time barred. This view is supported to some extent by the decision in A.J. Meik V/s. Midnapur Zamindary Company . In that case it was held that a decree in favour of two persons jointly cannot be executed by one of such persons in respect of what that person considers his share of the decree nor can the whole decree be executed by one of the decree-holders alone unless he applies for execution on behalf of all the decree-holders or for the benefit of them all. It was further held that an application for execution of a decree by one of several joint decree-holders who has not complied with the provisions of Order 21, Rule 15 cannot be amended. I would, therefore, allow this appeal and direct that the execution proceedings be drop, ped. As the respondents do not appear in this Court, there will be no order for costs. Beeyor, J.