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Damodar Das (deceased by L. R's) Vs. Gurcharan Kapoor and Ors. (21.08.1984 - ALLHC) - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberExecution First Appeal No. 309 of 1968
Judge
Reported inAIR1984All398
ActsCode of Civil Procedure (CPC) , 1908 - Order 21, Rule 16 - Order 38, Rules 11 - Order 21, Rules 11, 16 and 54
AppellantDamodar Das (deceased by L. R's)
RespondentGurcharan Kapoor and Ors.
Appellant AdvocateR.R. Agarwal, Adv.
Respondent AdvocateS.N. Verma, ;S.B. Choudhary and ;Ratnakar Chaudhary, Advs.
DispositionAppeal dismissed
Excerpt:
civil - execution application - order 21 rules 16 and 11 of code of civil procedure, 1908 - decree passed in favour of karta of joint hindu family - karta goes missing- execution of decree filed by next karta - held, right of filing execution application devolves on next karta through operation of law. - .....shiv charan. it was urged that without substitution after due notice to the judgment-debtor shiv charan's application was not maintainable. the lower court held that the application in question is maintainable. i have considered the argument. it is established on record that gur charan kapoor had obtained the decree in his capacity of manager and karta of the joint hindu family business. it is also established on record that gur charan kapoor had disappeared and for the last several years was not heard of before this execution application was filed the lower court rightly relied upon the case of narain swarup v. days shanker : air1938all256 . the facts of that case are fully akin to the facts of this case. in that case also the decree was in favour of the joint hindu family who was not.....
Judgment:

M. Wahajuddin, J.

1. This execution first appeal is directed against the judgment and order of the Civil Judge, Shahajahanpur dated 1-6-1968, rejecting the judgment-debtor appellant's objection under Section 47 C. P. C.

2. The decree initially was passed in favour of Sri Gur Charan Kapoor. The execution application was preferred by Shiv Charan. It was urged that without substitution after due notice to the judgment-debtor Shiv Charan's application was not maintainable. The lower court held that the application in question is maintainable. I have considered the argument. It is established on record that Gur Charan Kapoor had obtained the decree in his capacity of Manager and Karta of the joint Hindu family business. It is also established on record that Gur Charan Kapoor had disappeared and for the last several years was not heard of before this execution application was filed The lower court rightly relied upon the case of Narain Swarup v. Days Shanker : AIR1938All256 . The facts of that case are fully akin to the facts of this case. In that case also the decree was in favour of the joint Hindu family who was not heard of and the execution was sought by the then Manager and Karta of the joint Hindu family. It was held that such execution application was maintainable as the right devolved by operation of law. Any pronouncement of this court to the contrary or of any Supreme Court has not been cited. It was urged that in any case a notice was requisite. In that connection a perusal of Order 21, Rule 16 C.P.C. is important The first paragraph provides for execution application as if the application was made by the very decree-holder. It was argued that under the proviso a notice would be requisite but the proviso covers only transfer of interest by assignment and not in any other manner, while under the Order 21, Rule 16 right may devolve in different manner, viz. transfer by assignment in writing or by operation of law. Had the intention of the Legislature been to provide for a notice in case of transfer of interest by operation of law also the proviso would not have been confined to only such transfers as made by assignment In fact, in the aforesaid case of Narain Swarup (supra) also it was held that where the next Karta and Manager of joint Hindu Family executes a decree in favour of Manager and Karta of joint Hindu family the transfer will be by operation of law and not by any assignment. 1, therefore, do not find any force in the submission of the learned counsel for the appellant to the contrary.

3. The next point urged was that in any case the decree can be executed for Rs. 4000/- only. It would appear that the decree was for a higher and larger amount but later in previous execution proceeding decree-holder agreed to accept a lesser sum of Rs. 11000/- in full satisfaction of the decree provided that the balance money of Rs. 9000/-, Rs. 2000/- having already been paid, was paid by 31-8-1963. It is not disputed that by that date the full amount was not paid Under the terms of the compromise on default to pay the amount by the stipulated time the entire decretal amount was to become payable as per terms of the compromise. It is urged that the clause is a penal clause. This argument again has no force. Actually the decree was for higher amount and the liability under the decree was also for a higher sum. The decree-holder agreed to make a concession as to accept a lesser amount if it was paid by stipulated date, also with express agreement that if not paid by that date the full amount due under the decree will be payable. Thus simply a concession was given stipulating for an early payment and for such consideration and obviously when that was not done further provision for payment of entire decretal amount can in no way be considered as penal. In fact, the term urged to be penal was nothing more than what was contained in the initial decree.

4. The next point urged was that as earlier execution application was struck off an attachment was requisite. This argument ignores a clear provision of Order 38 Rule 11 C.P.C. In the present case the property was attached before the judgment and that attachment continued. So fresh attachment in execution of decree will not be requisite. It was urged that as earlier application for execution was dismissed attachment would cease to be operative. That cannot be the position when actually neither any attachment was made in execution nor such an execution was required. Reliance was placed upon the case of Abdul Hamid v. Karim Bux : AIR1973All67 . The ruling does not apply to this case. Actually it deals with the cases where the very suit is dismissed and obviously when the suit is dismissed the attachment before judgment made in the suit will come to the end and will automatically cease. In the present case the suit was not dismissed and the attachment before the judgment was operative. The only point to be consideredis whether fresh attachment in execution is requisite and Order 38 Rule 11 is a complete answer to the same and no fresh attachment in execution will be requisite. Rather the case of Abdul Hamid v. Asghari Begum : AIR1953All173 . It is an authority for the proposition that in case of any attachment effected before judgment consequent of the dismissal of an execution application on default attachment before judgment does not cease. Reliance was placed upon Kollu Kangayya Naidu v. J. Reddeyya (AIR 1980 Andhra Pradesh 204) (Sic) for a contrary view. But I have already referred to Allahabad Full Bench and I must follow Allahabad Full Bench case and I may observe that in view of the same, the rulings of any other Courts cited will not be preferred. I, therefore, do not find any force in this appeal and it is dismissed. As none appeared from the respondent's side parties are directed to bear their own costs.


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