1. These are three appeals in execution. When a few facts are clearly realised, the point that arises is short and simple. It appears that in 1910 a decree was passed on a mortgage in favour of one Vishnu Vishvanath Oka against Govind Vishvanath Joshi and this was an instalment decree. There were certain attempts made by Vishnu to execute the decree with which we are not now concerned. Vishnu died on April 8, 1913. Darkhast No. 54 of 1920 was filed by his natural brother Balvant Kashinath Oka. The table of the family relationship is given in the judgment of the lower Court. That darkhast was sent to the Collector for execution on August 20, 1920. The learned Subordinate Judge, however, held, on April 27, 1922, that it was not competent to the applicant Balvant to proceed with the execution as other persons interested with him in the decree as coparceners after the death of Vishnu were not joined. According to the view taken by the Court at the date of the presentation of the darkhast ho alone was entitled to apply for execution. While dismissing this darkhast, the Court observed as follows:-
This will not stand in the way of the applicant and his brothers or nephews presenting a fresh darkhast after showing that they are entitled to present the same. At the date of the presentation of this darkhast the applicant was not a coparcener and was not the sole surviving coparcener and was not entitled to present the darkhast.
2. The proceedings were called back from the Collector on May 5, 1922. The present darkhast was filed on October 23, 1923, by Mahadev, the son of Prabhakar, as son of Prabhakar, as shown in the pedigree in the judgment of the lower Court, for the benefit of all the other coparceners. The other members of the Oka family, as shown in the genealogical table, were brought on the record in the darkhast on March 15, 1924. Thus unquestionably the darkhast was properly constituted on March 15, 1924. The learned Judge allowed execution in respect of two instalments which fell due within three years prior to this date, but disallowed the prayer for execution in respect of the earlier instalments claimed in this darkhast. The lower Court was of opinion that the time occupied before the Collector, after the Darkhast No. 54 of 1920 was sent up to him for execution, could not be excluded under para. 11, sub para. (3), of Schedule III of the Code of Civil Procedure.
3. Two appeals have been preferred by different members of the Oka family in the same interest, and the third appeal is preferred by one of the judgment-debtors contending that the family wag not joint, and that the previous Darkhast (No. 54 of 1920) was not properly filed by Balvant.
4. The lower Court has found on the evidence that Vishnu died in union with the surviving members of the family. It may be mentioned at once as regards the contention of the judgment-debtor that the family was not joint, that it must be disallowed. There is evidence of union, and there would be a presumption also in favour of union. As against that there is nothing on the side of the judgment-debtor to show that, at the time of Vishnu's death, the family was divided. Accepting that finding, therefore, the main question in the appeal is whether the lower Court was right in not excluding the time during which the Darkhast No. 54 of 1920 was pending before the Collector in consequence of the order of the civil Court under para. 11, sub-para. (3), of Schedule III, Civil Procedure Code. It is admitted before us that, if that time is excluded, all the instalments asked for in this darkhast could be claimed as being within time. The learned pleader for the respondent has not been able to suggest any answer why that provision should not apply, and why the time could not be excluded. It is quite clear that there was an order sending the darkhast for execution to the Collector. That darkhast was pending before the Collector during the period already mentioned, The learned Judge appears to us to have taken an erroneous view in holding that because the darkhast was ultimately found not to have been properly presented, the order referring the matter to the Collector for execution and all the proceedings that were then pending before the Collector were wholly invalid. This view has not been sought to be supported before us, and we feel clear that that time should be deducted.
5. We also think that the darkhast was properly presented although it was presented by one of the coparceners only. Such a presentation could not be said to be invalid in view of the provisions of Section 146, Civil Procedure Code and the provisions of Order XXI, Rule 15. It may be defective and the executing Court may not proceed with execution on the application of one of them under the circumstances. But the presentation by one of the surviving coparceners of the deceased decree-holder, could not be said to be invalid so as to render the proceedings before the Collector invalid and so as to prevent the deduction of the time mentioned in sub-para. (3) of para. 11 of the Third Schedule of the Code. So long as there is nothing to show that Balvant in that application was acting entirely for his own benefit and not for the benefit of the family, it could not be said to be an improper application in the sense that the whole thing was invalid.
6. We, therefore, allow First Appeals Nos. 47 and 86 of 1925, and modify the order under appeal by directing that the execution should proceed in respect of all the instalments claimed in this darkhast. First Appeal No. 208 of 1925 is dismissed with costs, The first two respondents (the original defendants) to pay the costs of the appellants in First Appeal No. 47 of 1925 ; other respondents to bear their own costs. There will be no order as to costs in First Appeal No. 86 of 1925.
7. We are informed that all the members of the Oka family, who were joined formally as opponents in this darkhast, are willing to join with the applicant in prosecuting the darkhast for execution. For the purposes of execution hereafter formally the record may be amended in the lower Court so as to make all these persons applicants. It has been agreed both by the original applicant and all the other members of the Oka family appearing on the record that they all should be treated as applicants.