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Manmohan Dayal and ors. Vs. Kailash Nath and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberEx. First Appeal No. 271 of 1955
Judge
Reported inAIR1957All647
ActsCode of Civil Procedure (CPC) , 1908 - Ordre 21, Rule 11 - Order 22, Rule 12
AppellantManmohan Dayal and ors.
RespondentKailash Nath and ors.
Appellant AdvocateSatyandra Nath Verma and ;S.N. Kackar, Advs.
Respondent AdvocateShambhu Prasad, Adv.
DispositionAppeal dismissed
Excerpt:
.....to execute the decree and, consequently, dismissed the review application as well as the two objections under section 47 of the code of civil procedure. on this point there are also decisions of other high courts clearly indicating that if an execution be already pending at the instance of a decree-holder, his legal representatives,'after his death, need not make a fresh application for execution and it is sufficient that they apply for continuation of the proceedings in the pending execution. , and, prima facie, it looked like an application for execution by the legal representatives who were not on the record until that application was made......shrimati jasoda, widow of gulley ram, and salig ram, son of bal govind, applied for execution as legal representatives of the original decree-holders and sought permission to execute the decree in that capacity. while this execution was still pending, shrimati bitto died in the year 1945 and her daughter, shrimati naraini devi, applied for substitution in the execution application.she is now one of the persons executing the decree but, in this appeal, we are not concerned with her at all. later still, by the year 1953 two other original decree-holders, radhey shyam and rameshwar prasad, died. thereupon on 6th september, 1953 an application was presented by shrimati sheo piari devi for substitution of her name as legal representative of rameshwar prasad deceased and shrimati tulsa widow.....
Judgment:

V. Bhargava, J.

1. This appeal arises out of proceedings for execution of a decree which was obtained by five persons, Shrimati Bitto, Radhey Shyam, Rameshwar Prasad, Gulley Ram and Bal Govind, on 3rd of April, 1941. The appeal, which was filedagainst that decree in this Court, was dismissed on 26th November, 1943, and the application for execution of the decree was presented on the 22ndof December 1944.

By this time two of the decree-holders, Gulley Ram and Bal Govind, were dead. In their places Shrimati Jasoda, widow of Gulley Ram, and Salig Ram, son of Bal Govind, applied for execution as legal representatives of the original decree-holders and sought permission to execute the decree in that capacity. While this execution was still pending, Shrimati Bitto died in the year 1945 and her daughter, Shrimati Naraini Devi, applied for substitution in the execution application.

She is now one of the persons executing the decree but, in this appeal, we are not concerned with her at all. Later still, by the year 1953 two other original decree-holders, Radhey Shyam and Rameshwar Prasad, died. Thereupon on 6th September, 1953 an application was presented by Shrimati Sheo Piari Devi for substitution of her name as legal representative of Rameshwar Prasad deceased and Shrimati Tulsa widow and Kailash Nath and Amar Nath, sons of Radhey Shyam, applied for substitution of their names as legal representatives of the original decree-holder, Radhey Shyam.

In the application, they also made the prayer that the execution, which was already pending, should be continued and the decretal amount realised. This application was allowed ex parte on the 2nd of April, 1955. Thereafter the judgment-debtors filed an application for the review of this ex parte order.

In addition an objection under Section 47 of the Code of Civil Procedure was filed on behalf of Manmohan Dayal judgment-debtor and another objection under Section 47 of the Code of Civil Procedure was filed on behalf of Shrimati Gilla Kun-war judgment-debtor. The review application and these two objections under Section 47 of the Code of Civil Procedure all raised the same point as to whether Shrimati Sheo Piari Devi, Shrimati Tulsa, Kailash Nath and Amar Nath were entitled to continue execution of the decree or not.

The learned Judge presiding over the execution court held that they were entitled to execute the decree and, consequently, dismissed the review application as well as the two objections under Section 47 of the Code of Civil Procedure. This instant appeal is directed against that order of the executing court.

2. During the course of arguments in this appeal, learned counsel for the appellants had to concede in view of a Full Bench decision of this Court in Baij Nath v. Ram Bharose : AIR1927All165 , that the legal representatives of the two deceased decree-holders, Rameshwar Prasad and Radhey Shyam, were entitled to ask for continuation of the execution proceedings without moving any fresh application for execution.

On this point there are also decisions of other High Courts clearly indicating that if an execution be already pending at the instance of a decree-holder, his legal representatives,' after his death, need not make a fresh application for execution and it is sufficient that they apply for continuation of the proceedings in the pending execution.

Reference may be made to a Full Bench decision of the Madras High Court in Venkatachalam Chetti v. Ramaswami Servai, ILR 55 Mad 352; (AIR 1932 Mad 73) (B), a Division Bench decision of the Chief Court of Oudh in Mahabir Prasad v. Raja Mohan Manucha, AIR 1946 Oudh 154 (C), and a Division Bench decision of the Nagpur High Court in Govind Rao v. Ganpat Rao, AIR 1947 Nag 116 (D). In view of this established position of law, learned counsel for the appellants rested his arguments on only one point.

The point raised by learned counsel was that, even though the legal representatives of Rameshwar Prasad and Radhey Shyam were entitled toapply for continuation of the execution proceedings, they were bound to do so in the usual form of ten columns prescribed by Order XXI, Rule 11, C. P. C. For this contention, learned counsel relied on certain remarks of the Full Bench of this Court in : AIR1927All165 , cited above.

In that case, Ram Lal and certain other persons had obtained a decree for sale which had been made final on 28th September, 1912. After an infructuous application for execution, another application was made on 22nd December, 1915. There was a compromise agreement during that execution and the judgment-debtors were allowed to pay the money due in instalments. Three instalments were paid whereafter there was a default.

Thereupon there was another application for execution but it ended in no result. The fourth application was made on 22nd of October, 1923, and since, in the meantime, the judgment-debtor's interest in the property had been sold, the transferee was made a party as successors-in-interest of the original judgment-debtors.

The execution of the decree had been transferred to the Collector and before him the person, against whom execution was sought, made a deposit of Rs. 1,000/- asking at the same time for a year's time to enable him to pay up the balance of the decretal amount. The Collector gave three months' time and, finding it unnecessary to keep the case pending in his court, returned the decree and the papers to the civil court.

After the expiry of the three months which were granted by the order of the Collector, Ram Lal, by an application dated 28th January, 1925, prayed that the papers of the former execution might be sent to the Collector for execution. That application was granted by the order dated 6th February, 1925. Almost immediately thereafter Ram Lal died and thereupon his legal representatives put in an application on 28th of April, 1925, praying that they might be brought on the record in place of their late father and that the execution might be proceeded with.

It was under these circumstances that the Full Bench had to consider the question whether the application dated 28th January, 1925, by Ram Lal and the application dated 28th April, 1925, by his legal representatives were fresh execution applications within the meaning of the expression used in Section 48 of the Code of Civil Procedure. The Bench first considered the question with reference to the application of Ram Lal dated 28th January, 1925, and held that it was not a fresh application within the meaning of Section 48 of the Code of Civil Procedure.

It was an application to carry on a previous execution which was still pending. Thereafter the learned Judges proceeded to consider the nature of the application dated 28th April, 1925, made on behalf of the legal representatives of Ram Lal. This application, it may be noted, was in the usual form of ten columns prescribed by Order 21, Rule 11, C. P. C.

This fact appears in the judgment of the Full Bench itself where, when giving the facts, it was noted that this application purported to be the sixth application for execution. In order to verify this fact, we sent for the record from the Record Room of our Court and found that, in fact, the application purported to be the sixth application for execution. In order to verify this fact, the application of 28-4-1925, was in that prescribed form. When dealing with that application, the Full Bench held :

'When the sons of Ram Lal, on his death, made the application of 28th of April, 1925, they did not ask for any, fresh proceedings. They said that Ram Lal's name might be removed and the petitioners' names might he entered in the array of decree-holders. They had to make an application in the usual form of ten columns, because there is no rule of law which enables the legal representative of a deceased decree-holder to apply for mere substitution of names.

He must apply, whenever he does apply, for execution of the decree, vide Order 21, Rule 16 of the Code of Civil Procedure, it is clear, therefore, that neither the application of 28th of January, 1925 nor the application of 28th of April, 1925, was a 'fresh application' within the meaning of Section 48 of the Code of Civil Procedure.'

Relying on these remarks of the Full Bench, learned counsel for the appellants contended that, in the present case before us, the application; which had been presented by the legal representatives of Rameshwar Prasad and Radhey Shyam, was incompetent as it was not drawn up in the usual form of ten columns prescribed by Order 21, Rule 11. C. P. C.

It was urged that the Full Bench had laid down that whenever any legal representative made an application--whether a fresh application for execution or an application for continuing a pending execution--he must apply in that usual form of ten columns. It appears to us that this interpretation sought to be placed by learned counsel on the decision of the Full Bench if accepted, would make the views expressed in the judgment by the Full Bench inconsistent with one another.

The Full Bench held that the application dated 28th April, 1925, was not a fresh application for execution. It was merely an application for the continuance of the execution proceedings which were already pending. Order 21, Rule 11, C. P. C., does not require that such an interlocutory application for continuation of execution proceedings already pending must also be in that form.

The correct interpretation of the remarks of the Full Bench appears from the context in which those remarks were made. The Full Benchs had already held that the application of 28th January, 1925, by Ram Lal was not a fresh application and that it was an application to carry on a previous application for execution which was still pending. After this finding, the Full Bench had to consider the nature of the application made by the sons of Ram Lal on 28th of April, 1925.

That application happened to be in the usual form of ten columns prescribed by Order 21, Rule 11, C. P. C., and, prima facie, it looked like an application for execution by the legal representatives who were not on the record until that application was made. If that application was not to be treated as a fresh application for execution, an explanation was necessary why it had been presented in that form.

It was when examining this aspect that the Full Bench noted that, by the application dated 28th April, 1925, the sons of Ram Lal did not ask for any fresh proceedings. They then proceeded to consider the explanation tendered on behalf of the sons of Ram Lal which was

'that in the application the prayer was that Ram Lal's name might be removed and the petitioners' names might be entered in the array of decree-holders, that they had to make the application in the usual form of ten columns because there was no rule of law enabling the legal representative of a deceased decree-holder to apply for mere substitution of names.'

This explanation was further elaborated by adding that the legal representative must apply, whenever he does apply, for execution of the decree vide Order 21, Rule 16, C. P. C. it appears that the Full Bench, after noting 'the explanation, considered it to be sufficient, so that the application of 28th of April, 1925, was also held not to be a fresh application within the meaning of Section 48 of the Code of Civil Procedure.

What the learned Judges of the Pull Bench noted in their judgment was the explanation for the application dated 28th April, 1925, being in the form of ten columns prescribed by Order 21, Rule 11, C. P. C., and not their own decision that every legal representative must always present the application in that form. They had to take note of the explanation tendered because the application of 28th April, 1925, had been presented in that form.

What they recorded in their judgment was thus neither obiter dictum nor any general rule of law applicable to applications presented by legal representatives of a deceased decree-holder applying for continuation of a pending execution. The Division Bench of the Oudh Chief Court in AIR 1946 Oudh 154 (C), cited above, held that the remarks of the Full Bench that the legal representatives had to apply in the usual form of ten columns and not merely for substitution of names were obiter.

To us it appears that the comment was not obiter but really amounted to acceptance of the explanation which had been tendered on behalf of the legal representatives who had made the application so as to meet the argument that their application was a fresh application. In the circumstances, We do not consider that the remarks of the Full Bench relied upon by learned counsel are of any assistance.

In the instant case, the application made by the legal representatives of Rameshwar Prasad and Radhey Shyam, original decree-holders, was for substitution of names and continuation of the pending execution proceedings which could, in fact, have been carried on by the remaining decree-holder for their benefit and was not an application for execution at all which could be governed by the provisions of Order 21, Rule 11, C. P. C.

3. There is, therefore, no force in this appeal and it is dismissed with costs. The stayorder is vacated. The record may be sent downto the lower court at once.


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