BAIJ NATH Vs. RAM BHAROS

JUDGEMENT

(1.) This case has been referred to a Full Bench to obtain a decision on the question, viz., which of the two cases Jurawan Pasi V/s. Mahabir Dhar Dube [1918] 40 All. 198 and D.S. Apte V/s. Tirmal Hanmant Savnur A.I.R. 1925 Bom. 503 was correctly decided.

(2.) The facts of the case are only partially given in the judgment of the lower Court. This being a first appeal we looked into all the facts involved in the case and we find that having regard to certain facts, to be presently mentioned, the question referred does not arise for decision.

(3.) The appellants late father, Ram Lal, and certain other persons obtained a decree for sale which was made final on the 28 September 1912. The date given in the execution application of 28 April 1925 is presumably the date of the preliminary decree. After an infructuous application, another was made on the 22 December, 1915. In the course of this execution the parties came to terms. It was agreed that out of the sum of Rs. 5,338 then found due, the judgment- debtors should pay up at once the sum of Rs. 338 and should pay the balance by yearly instalments of Rs. 330. The judgment-debtors regularly paid three instalments and thereafter made a default. Another application, accordingly, followed and it ended In no result. The fourth application was made on the 22nd October 1923 and the property being ancestral the execution of the decree was transferred to the Collector. In the meantime the judgment-debtors interest in the property had been sold in execution of a simple money decree obtained by the respondent against them, and was purchased by him, and, consequently, the respondent was made a party as a successor-in-title of the original judgment- debtors. The respondent made a deposit of Rs. 1,000 and asked for a year's time to enable him to pay up the balance of the decretal amount. The Collector gave three months time, and finding it unnecessary to keep the case pending in his Court, returned the decree and the papers to the civil Court. After the expiry of the three months which were granted by order dated the 16 October 1924, Ram Lal, by an application dated the 25 January 1925, prayed that the papers of the former execution might be sent to the Collector for execution. This application was granted by order dated the 6 February 1925. Almost immediately after this Ram Lal died and his sons, the present appellants, put in the last and sixth execution application on the 28 April 1925, praying that they might be brought on the record in place of their late father and that the execution might be proceeded with. It is to be noted that Ram Lal had been taking out execution for the benefit of himself and his co-decree-holders and his sons also made a similar prayer.