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Mohan Lal Amrit Lal and anr. Vs. Bai Mahajaveri - Court Judgment

LegalCrystal Citation
CourtMumbai
Decided On
Judge
Reported in70Ind.Cas.859
AppellantMohan Lal Amrit Lal and anr.
RespondentBai Mahajaveri
Excerpt:
execution of decree - decree-holders, death of one of--legal representative, appointment of--notice to decree-holders not issued--ex parte order, whether can be questioned. - .....execution proceedings with regard to a decree in regular civil suit no. 34 of 1915. the original decree-holders were mohanlal and maneklal and the two sons of their deceased brother dahyabhai. after the decree maneklal died, and then his widow put in an application in which she prayed that she should be brought on the record as the legal representative of her deceased husband. she was rsked to produce a succession certificate, which she did. accordingly, on the 30th october 1919 her prayer was granted, but no notice of her application was given to the other decree-holders. on the 4th november they asked that the ex parte order made in favour of maneklal's widow should be vacated. on that the following order was made by the subordinate judge: 'rejected in view of the previous order on.....
Judgment:

1. This is an appeal from the decision of the District Judge of Broach in execution proceedings with regard to a decree in Regular Civil Suit No. 34 of 1915. The original decree-holders were Mohanlal and Maneklal and the two sons of their deceased brother Dahyabhai. After the decree Maneklal died, and then his widow put in an application in which she prayed that she should be brought on the record as the legal representative of her deceased husband. She was rsked to produce a Succession Certificate, which she did. Accordingly, on the 30th October 1919 her prayer was granted, but no notice of her application was given to the other decree-holders. On the 4th November they asked that the ex parte order made in favour of Maneklal's widow should be vacated. On that the following order was made by the Subordinate Judge: 'Rejected in view of the previous order on the Darkhast.' That was a wrong way of dealing with that application. As tire order in favour of the widow was made ex parte, it was open to the decree-holders to ask the Court to reconsider its decision, and the fact that the previous order had been made on the widow's application, would not prevent the Court from considering it when the other decree-holders objected.

2. From the order of the 10th November rejecting the decree-holders applications, an appeal was filed to the District Judge. A preliminary objection was taken that no appeal lay, and, unfortunately, it seems to have been admitted by the appellants' Pleader that he ought to have appealed against the order of the 30th October, and not against the order passed on the 10th November. No question of limitation arose because the appeal was filed within 30 days of the order of the 30th October. But it made no difference in effect whether the appellants appealed against the ex parte order made in favour of the widow on the 30th October, or the order passed against the decree-holders on the 10th November refusing to consider their application to set aside the ex parte order. The fact remains that an order was made ex parte in favour of the widow, end the appellants are entitled to have that considered on the merits. Therefore, we must allow the appeal and send the case back to the Trial Judge so that he may consider whether the appellants' application to vacate the order of the 30th October should be granted or not. The appellants to have their costs of this appeal and of the appeal in the Court below.


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