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Moti Ram and ors. Vs. Onkar Prasad and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1935All27
AppellantMoti Ram and ors.
RespondentOnkar Prasad and ors.
Excerpt:
- - the learned subordinate judge's order of 19th january 1933 dismissing the application for execution was clearly wrong. he did not realise that onkar prasad was the applicant and that his application for execution could not be dismissed for failure of panna lal to apply for substitution......prasad assigned his rights to ulfat rai who subsequently died and is now represented by his son onkar prasad. the decree was passed in 1912 so that any fresh application for execution is barred. onkar prasad had made an application within time for execution of the decree for the common benefit of himself and narain das. the decree was transferred to the collector as the property to be sold was ancestral property. narain das died in the meantime and his son panna lal made an application to the collector praying for substitution of his name in place of his father narain das. it transpired before the collector that narain das had died long before panna lal made his appearance. the collector sent back the record of the case to the civil court for substitution proceedings being taken. on.....
Judgment:

Niamatullah, J.

1. This is a judgment-debtors' appeal which arises in the following circumstances:

Jwala Prasad and Narain Das obtained a mortgage decree against Moti Ram and others. Jwala Prasad assigned his rights to Ulfat Rai who subsequently died and is now represented by his son Onkar Prasad. The decree was passed in 1912 so that any fresh application for execution is barred. Onkar Prasad had made an application within time for execution of the decree for the common benefit of himself and Narain Das. The decree was transferred to the Collector as the property to be sold was ancestral property. Narain Das died in the meantime and his son Panna Lal made an application to the Collector praying for substitution of his name in place of his father Narain Das. It transpired before the Collector that Narain Das had died long before Panna Lal made his appearance. The Collector sent back the record of the case to the civil Court for substitution proceedings being taken. On the case being laid before the Subordinate Judge on 3rd January 1933, he ordered that a 'service post card' be issued to Panna Lal directing him to apply for substitution of names by 18th January 1933. The case was laid before the Subordinate Judge on that date and it was noted that Panna Lal had made no application. Next day, namely, on 19th January 1933, the Subordinate Judge dismissed Onkar Prasad's application for execution. It should be observed that orders dated 30th January, 18th January and 19th January were all passed behind the back of Onkar Prasad. It does not appear from the record when Onkar Prasad came to know of the dismissal of his application for execution but he applied on 18th March 1933 that the record of the case be sent to the Collector for execution. This application was followed by another application dated 1st April 1933 praying that his application for execution dismissed on 19th January 1933 be restored. The learned Subordinate Judge who, it should be noted, is the same officer who had dismissed the application for execution on 19th January 1933, restored it acting under Section 151, Civil P.C. The present appeal is from that order.

2. It is doubtful whether an appeal lies because orders under Section 151, Civil P.C., are not appealable, but the learned advocate for the appellants contends that the order is in substance one under Section 47, Civil P.C., and I heard arguments on the assumption that this is so, and pass my order on the same assumption.

3. In my opinion the order of the learned Subordinate Judge which is challenged before me is a correct one and if he had refused to pass the order which he did and if such order was justified by law it would have been a blot on the administration of justice. Onkar Prasad had an absolute right to execute the decree for the benefit of himself and other decree-holders (Order 21, Rule 15, Civil P.C.). It was not strictly necessary that the heirs of the deceased decree-holder Narain Das should be brought on the record. Order 22, Civil P.C. under which substitution proceedings are taken is not applicable to execution proceedings. The Collector was not justified in returning the case to the civil Court. He should have proceeded with the execution of the decree at the instance of Onkar Prasad, the original applicant. The Subordinate Judge correctly noted in his order of 3rd January 1933 that one decree-holder can apply for the benefit of himself and other decree-holders but as he had received back the record from the Collector for substitution proceedings he directed Panna Lal to make an application for substitution. Panna Lal took no steps. The learned Subordinate Judge's order of 19th January 1933 dismissing the application for execution was clearly wrong. If the decree-holder is driven to necessity of making a fresh application for execution which, as already stated, is barred by limitation, the result will be a gross abuse of the process of the Court. Section 151, Civil P.C., which reserves to the Court the inherent power to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court is meant for cases of this kind. I have no doubt that the order of the learned Subordinate Judge dated 19th January 1933, was passed by an oversight. He did not realise that Onkar Prasad was the applicant and that his application for execution could not be dismissed for failure of Panna Lal to apply for substitution.

4. In all the circumstances of the case the order under appeal is correct. The appeal is dismissed under Order 41, Rule 11, Civil P.C.


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