Skip to content


Niader Vs. Khazan and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1930All604
AppellantNiader
RespondentKhazan and ors.
Excerpt:
- .....the contention did not find favour with the lower appellate court and did not find favour with the learned judge of this court. it was contended before the learned single judge of this court that the lower appellate court had relied on the case of mohan singh v. jagat singh a.i.r. l928 all. 299, but that case was contrary to a full bench ease of this court decided earlier viz: baijnath v. ram bharos : air1927all165 . the learned single judge seems to have accepted this contention, but he did not follow the alleged full bench decision on the ground that the passage on which the appellant's counsel relied was mere obiter dictum.4. we have considered both the eases and are of opinion that there is really no conflict between the two decisions, in the full bench case it was pointed out that.....
Judgment:

Mukerji J.

1. This is an appeal against a judgment of a learned single Judge of this Court and the point for decision is very short and simple.

2. It appears that one Harkesh obtained a decree for possession which was to be executed on the death of a certain lady, Mt. Roopo, if defendant 1 omitted to do something within one month of the death of the aforesaid lady. The contingency contemplated did happen and Harkesh put his decree into execution. While the decree was in execution, Harkesh died and his sons made an application for substitution and were substituted in place of Harkesh and the execution was proceeded with The judgment-debtors took several exceptions to the execution of the decree and one of these was that the sons were bound to make a fresh application and the execution application by Harkesh could not bo continued and should bed ropped.

3. The contention did not find favour with the lower appellate Court and did not find favour with the learned Judge of this Court. It was contended before the learned single Judge of this Court that the lower appellate Court had relied on the case of Mohan Singh v. Jagat Singh A.I.R. l928 All. 299, but that case was contrary to a Full Bench ease of this Court decided earlier viz: Baijnath v. Ram Bharos : AIR1927All165 . The learned single Judge seems to have accepted this contention, but he did not follow the alleged Full Bench decision on the ground that the passage on which the appellant's counsel relied was mere obiter dictum.

4. We have considered both the eases and are of opinion that there is really no conflict between the two decisions, In the Full Bench case it was pointed out that the application on the part of the sons of the deceased decree-holder was not a fresh application, but it was really an application to continue the father's execution application, with themselves on the record. If that be so the Full Bench never said that when a decree-holder died, his sons must make a fresh application and could not continue the previous application.

5. The learned single Judge expressed the opinion that when a decree-holder died after having made an application in execution, his representative-in-title by succession could apply for substitution of names under Order 22, Rule 10, Civil P.C. It is not necessary really to discuss how far this opinion is correct and therefore we leave the matter undecided. In the result, the appeal fails and it is hereby dismissed with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //