KIRTILAL JIVABHAI Vs. CHUNILAL MANILAL

JUDGEMENT

(1.) This is an appeal from a judgment of Mr. Justice Kania, and the question that arises for determination is1 whether a decree is capable of execution or is barred by limitation. It was an ex parte decree that was passed on November 13, 1923, in favour of Jivabhai Maganlal, the father of the appellant, against the firm of Vadilal Manilal. On January 4, 1926, Jivabhai applied for execution of the decree to this Court and a warrant was issued for the arrest of Vadilal Manilal and Chunilal Manilal, respondent No. 1 herein, partners of the defendant firm, the notices under Order XXI, Rule 22, and under Order XXI, Rule 37, Civil Procedure Code, 1908, being dispensed with. In June, 1928, Jivabhai died leaving behind him two sons, Kantilal (respondent No. 2), Kirtilal (the appellant), a widow and a brother's widow. In August, 1930, the decree was transferred to Ahmedabad for execution. On September 4, 1930, a certificate was issued by; the Prothonotary and Senior Master that further execution had been stayed in this Court. On February 10, 1931, Kantilal applied for execution in the Ahmedabad Court. On March 2, 1931, notice was issued by that Court under Order XXI, Rule 22. The service of this notice was effected by substituted service, and on August 31, 1931, the Court made an order for attachment of properties belonging to the judgment-debtors. On September 30, 1931, notice was issued under Order XXI, Rule 66, for settling draft proclamation of sale. On October 15, 1931, respondent No. 1 appeared and raised various objections. On March 12, 1932, Kantilal applied to withdraw his application for execution with liberty to file a fresh one. This application of Kantilal was granted and he was made to pay the costs of the application for execution.

(2.) Kantilal filed a suit for partition in this Court toeing Suit No. 1177 of 1940, and in that suit a consent decree was passed on September 23, 1940. By that decree the joint family properties were partitioned, and it is the appellant's case that the judgment-debt against the firm of Vadilal Manilal came to his share. The appellant applied for execution to the Ahmedabad Court on July 25, 1941, and that Court issued notice under Order XXI, Rule 22. On August 30, 1943, the appellant got the stay order for the execution of the decree in this Court removed; and on August 31, 1943, he presented an application under Order XXI, Rule 16, which Mr. Justice Kania dismissed holding that the decree was time-barred and not capable of execution.

(3.) The decree having been passed on November 13, 1923, was revived by the order made on January 4, 1926, for the issue of a warrant, and prima facie the decree would be barred on August 31, 1943, when an application for execution was made under Order XXI, Rule 16, unless in the intervening period the decree had again been revived. The appellant relies on the order made by the Ahmedabad Court on August 31, 1931, as a revivor of the decree. To constitute a revivor of a decree there must be a, determination by a Court that the decree is still capable of execution and the decree-holder is entitled to enforce it. Such a revivor can be effected by an order for execution, provided the order made is a valid order. As we have pointed out, the application for execution on which the order of attachment was made by the Ahmedabad Court on August 31, 1931, was made by Kantilal on February 10, 1931. The most important question we have to consider is : in what capacity did Kantilal make this application? The scheme of the Civil Procedure Code is that it is only a decree-holder who can ordinarily apply for execution of the decree. If there are more than one decree-holders, then under Order XXI, Rule 15, it is competent to one of the joint decree-holders to apply for execution. If the decree is transferred either by assignment in writing or by operation of law, the transferee can also apply for execution under Order XXI, Rule 16, of the Civil Procedure Code.