AKHORI RAMSEWAK PRASAD Vs. SARAN SINGH

JUDGEMENT

(1.) The only question in this case is whether the application to execute a certain decree, which application was taken out in the year 1935, was barred by limitation. This depended on the question whether a previous application was a step-in-aid of execution. So far as it is necessary to state the facts, the position is that the father of the present applicant obtained a decree for rent. Subsequently an application was made by one of the brothers of the present petitioner-appellant against one Saran Singh, one of the judgment-debtors. After that a second application was made by one other of the brothels against another of the judgment debtors, namely, Azim Khan; and it will be seen by the observations which I shall make that one of the main questions, if not the only question in the case, is whether that application was in accordance with law. A third application, that is, the application with which we are dealing in this case, was made by Akhori Ramsewak Prasad; the parties to this application were the same parties as those to the first application.

(2.) Now, prior to these applications, and indeed prior to the obtaining of the decree by the father, there had been admittedly certain events which brought about disruption in the family, the father having separated from his sons. Certain proceedings in the nature of an arbitration were taken by tie parties for the purpose of dividing the property by metes and bounds, but those proceedings became abortive. I purposely avoid mentioning any details with regard to those proceedings as it is not necessary for the purposes of the argument in this case to do so. Then further proceedings of a similar character were taken which were likewise abortive. Then it became necessary for one of the brothers to bring a regular action in partition. The properties were eventually divided by metes and bounds by the arbitrators and their award was made the subject-matter of a decree.

(3.) Those are shortly the facts in this case, and it was contended successfully in the Court below, and the contention is again made in this Court, that the present application is barred by limitation by reason of the fact that the second application was made on October 10, 1931, whereas this application wa3 made at a period of more than three years after the second application to which I have already made reference. I. do not think there can be any dispute that the actual dale which is to be treated as the date of the second application is November 10,1932, by reason of fact that certain claim proceedings were brought and were finally allowed and the execution proceedings dismissed. Taking it from that date, the present application, it is conceded, is within three years. The question is whether the proceedings in the claim case which gave rise to the dismissal of the execution proceedings, a fact to which I have already referred, were in accordance with law Without dealing with unnecessary contentions and arguments the whole matter resolves itself into one question, vie., whether it was necessary in the circumstances of the case to comply with Order XXI, Rule 16, Civil Procedure Code. Order XXI, Rule 16, deals with that class of case in which there has been a decree jointly in favour of two or more persons and the interest of one has been transferred by assignment in writing or by operation of law. The Proviso to that Rule is important. Under this Proviso in certain circumstances it becomes necessary to allow certain objection to be raised, if desired.