DIWAN SAIYED ALI RASUL Vs. SETH BALKISHEN

JUDGEMENT

(1.) The Following question has been referred to the full Bench: Having regard to the provisions of the Ajmer Courts Regulation, 1926 (Regulation IX of 1626), can a reference be made to this Court under Secs.17 and 18 of Regulation I of 1877 on a point of law arising in connection with an application in execution made after Regulation IX of 1926 came into force but in connection with a suit instituted before that Regulation came into force?

(2.) A suit for sale on a mortgage was filed in 1913; and a decree absolute was obtained in 1920. The first application for execution was filed in 1920. Later, owing to the deaths of the parties, there were proceedings for the substitution of names. An objection was raised by the present appellant in 1925 that he was not the legal representative of the deceased. In 1928 the Subordinate Judge decided in his favour; but the order was upset in appeal in 1930.There was a second appeal to the Judicial Commissioner, who set aside the order and held that the appellant was the legal representative but left other questions for the decision of the Court below. When (he case went back to the first Court, two sets of written objections were filed by the appellant on January 3, 1931, a January, 19, 1931, to which the decree-holder filed written replies. Issues, were framed on the points thus raised and evidence was recorded. On March 15, 1933, the Subordinate Judge held that the appellant was the legal representative of the deceased and that only two out of several properties could be sold in execution of the decree.

(3.) Both parties appealed to the District Judge, who on June 16, 1933, returned the appeals for presentation to the Judicial Commissioner, but this order was on revision set aside on July 21, 1933. The appeals: were then again presented to the District Judge, who dismissed them on September 22, 1933. An application for review was rejected on May 11, 1934. Another, application for reference to the Allahabad High Court was made on May 11, 1934, and the case was referred to the High Court on December 5 1933. In the meantime the old, Regulation was replaced by the Regulation of 1920 When the reference came before a Bench of this Court, a preliminary objection was taken on behalf of the respondent that the case was give in by the new Regulation under which no reference can be made to the High Court. The preliminary objection was overruled, the Bench holding that inasmuch as the suit had started while the old Regulation was in force, the execution proceeding was governed by the old Regulation and not the; new Regulation. They, however, returned the reference on March 8, 1934, on the ground that the questions raised in it were questions of fact and not of, law. Thereafter some more applications were dismissed in Ajmer. While the application for reference to the High Court was pending, a fresh set of objections were filed on November 12 or 13, 1932, which were dismissed by the Subordinate Judge on November 28,1933, on the ground that they were barred, by res judicata.