1. This letters patent appeal is directed against the order of a single judge in A.A.O. No. 268/82 on July 28, 1982. The question raised in the appeal relates to maintainability of execution application E.P. No. 3/77 laid by the respondents for delivery of item No. 2 in B schedule of the decree under order 21. Rule 35 of the code of civil Procedure. The appellants questioned the maintainability of the execution application, having regard to the earlier proceedings in W.P. No. 458/62 between the parties.
2. In the earlier proceedings a report of 'obstruction' was submitted to the executing Court in Ex. X1 on january 3: A Memo Ex. X-2 on January 19. 1963 was filed by the Decree-holder. The latter memo was to record, item No. 2 of B schedule of the decree was delivered to the decree-holder. This memo (Ex. X-2) was not acted upon by the executing Court: No delivery was recorded. Ont eh report of Ex. X-1, admittedly, no steps within the meaning of order 21, rule 97, were taken by the decree-holder and the execution petition was closed. The respondents raised the objection since the decree-holder failed to take steps within the prescribed period under Art. 129 of the Limitation Act 36 of 1963 and the execution was closed, it was no more open to the decree-holder to seek execution This is emphasised to hold, the execution is not maintainable under order 21. Rule 97 or under order 21, Rule 35 of the code of civil procedure. The learned single Judge, as to the maintainability, rejected the contention holding no authority was cited in support of the objections, therefore, the objection was rejected. Hence the appeal.
3. The appellants argue, in reiteration of the objection, E.P. 3/77 is not maintainable. It is argued, after the report in Ex. X-1 was lodged indiciating obstruction by a third party, the decree-holder failed to take the necessary steps under order 21, Rule 97, therefore, the execution application for Order 21, Rule 35 is not maintainable. Similar objection was rejected in Muttai. V. Appasani (1890) ILR 13 Mad 504 by the Madras High Court . that decision was relied in a full bench decision of the Bombay High Court in Mukund Bapu jaumav v. Tanu Sakhu pawar, AIR 1933 Bom 457 (FB). The Full Bench decision was followed in madanmohan v. Hari Anandilal, : AIR1959Bom269 . The same view was taken in Muniammal v. Rhulukkana Naicker, : AIR1962Mad338 .
4. The other cases in the High Court of India show acute difference of opinion on this question. The view holding the execution application in analogous circumstances, is not maintainable is held in kasri narain v. Abul hasan, (1904) ILR 26 All 365. That is followed in smt. Madora Bibi v. Mohd Mateen, : AIR1980All206 and in that case, the cases holding that view are collected.
5. It is needless to point out, the case (1) binds this Court: That apart we are in respectful agreement with the reasoning and conclusion reached in case (2) supra. In that view. The objection fails. The execution application E.P. No. 3/77 is held maintainable. The appeal is dismissed with costs.