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Ram Lohia Vs. Mt. Manno and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberEx. First Appeal No. 16-D of 1953
Judge
Reported inAIR1955P& H255
ActsCode of Civil Procedure (CPC) , 1908 - Sections 146 - Order 21, Rule 16 - Order 22, Rule 12
AppellantRam Lohia
RespondentMt. Manno and ors.
Appellant Advocate Bishambar Dayal, Adv.
Respondent Advocate Harnam Dass, Adv.
DispositionAppeal dismissed
Cases ReferredMt. Bhagwanta Kuer v. ZamirAhmad Khan
Excerpt:
.....& a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. .....8 shall apply to execution proceedings.the executing court held that the relations of the deceased decree-holder could not be substituted for him in the execution application but that under the provisions of order 21, rule 16, and under section 146 they could continue the pending execution proceedings. it is against this order that the judgment-debtor has appealed.2. his contention, which appears to mo to be somewhat captious, is that although the legalrepresentatives of the deceased decree-holder can execute the decree, they must do so by means of a fresh execution application and they cannot carry on the one which was pending. this contention is based on the decision in -- 'baij nath v. ram bharos', air 1927 all 165 (fb) (a), in which a full bench of five judges held that there is no.....
Judgment:

Falshaw, J.

1. The facts in this execution appeal are that one Ram Gopal obtained a compromise decree for Rs. 12,787/12/- on the basis of a mortgage against Sri Hum Lohia appellant. Ram Gopal died while the execution proceedings were pending and his widow, two sons and minor grandsons through their fathers applied under Order 22, Rule 3, Civil P. C., to continue the execution proceedings as his legal representatives. This was opposed by the judgment-debtor on the strength of the provisions of Order 22, Rule 12, which are to the effect that nothing in Rules 3, 4 and 8 shall apply to execution proceedings.

The executing Court held that the relations of the deceased decree-holder could not be substituted for him in the execution application but that under the provisions of Order 21, Rule 16, and under Section 146 they could continue the pending execution proceedings. It is against this order that the judgment-debtor has appealed.

2. His contention, which appears to mo to be somewhat captious, is that although the legalrepresentatives of the deceased decree-holder can execute the decree, they must do so by means of a fresh execution application and they cannot carry on the one which was pending. This contention is based on the decision in -- 'Baij Nath v. Ram Bharos', AIR 1927 All 165 (FB) (A), in which a Full Bench of five Judges held that there is no rule of law which enables the legal representative of a deceased decree-holder to apply for mere substitution of names and he must apply, whenever he docs apply, for fresh execution even when his predecessor's application is pending. This view was also followed by a Division Bench of the Luck-now Chief Court in -- 'Muhammad Sadiq Ali Khan v. Sajjad Mirza', AIR 1928 Oudh 30 (B).

3. As against this, however, there in an overwhelming preponderance of authority from other Courts including the Bombay, Calcutta, Nagpur, Madras and Patna High Courts in -- 'Shankar Balchand v. Hiralal Balchand; AIR 1931 Bom 425 (2) (C); -- 'Annacharya Sitaramacharya v. Narayan Paiidurang', AIR 1933 Bom 358 (D); --'Annanda Prasad v. Sushil Kumar Mandal', AIR 1942 Cal 390 (E); -- 'Tejraj Rajmal v. RAMPyari', AIR 1938 Nag 528 (F); -- 'VenkauchelamChetty v. Ramaswami Servai', AIR 1932 Mad 73-(FB) (G) and -- 'Mt. Bhagwanta Kuer v. ZamirAhmad Khan', AIR 1924 Pat 576 (H). '

4. There are thus on the one hand decisionsof two Courts, which are now uuited, as against ;the views of almost all the other old High Courtsin India and the only reason I think of for there being no reported decision on the point by theLahore Court or this Court is that so far nobody has seriously thought it worthwhile to fight the point'whether the legal representatives of the deceaseddecree-holder can continue a pending execution application or have, as a matter of form, to file a freshapplication. I entirely agree with the view of themajority of the High Courts and accordingly holdthat a' correct view was taken by the lower courtand dismiss the appeal with costs.


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