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Ghulam Nabi Seh Vs. Gaffer Wagey - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtJammu and Kashmir High Court
Decided On
Case NumberCivil Revn. No. 113 of 1980
Judge
Reported inAIR1983J& K67
ActsCode of Civil Procedure (CPC) , 1908 - Order 3, Rule 1 - Order 21, Rule 10 and 11
AppellantGhulam Nabi Seh
RespondentGaffer Wagey
Advocates: Zahoor Ahmed and; Shaista, Advs.
DispositionPetition allowed
Cases ReferredAppaji Chetti v. Govindasami Reddi
Excerpt:
- .....observed as follows :--'it is contended that an execution application need not be presented by the decree-holder or by any person specially authorised on his behalf and that the presentation by any person acquainted with the facts is sufficient. it has been contended that the presentation is not an act contemplated by the civil procedure code and is a mere formality. this argument is based upon the wording of order 21, rule 11 (2); but that rule only describes the form of the application. it is necessary to distinguish between an application proper, which is a request to the court to take certain proceedings, and the form in which that request is framed in a document which, although very different, is also spoken of as an application. order 21, rule 10 says: 'where the holder of a decree.....
Judgment:
ORDER

Mufti Baha-Ud-Din Farooqi, Acting. C.J.

1. This revision is directed against an order dated 4-9-1980 passed by Sub Judge, Anantnag dismissing an execution application. The decree was passed on 15-9-1971'. After sometime an execution petition was filed which was signed and verified by a Vakil who was not duly authorised. That petition was, however, consigned to records on 6-5-1974. Subsequently another execution petition was filed which was again signed by a Vakil who was not duly authorised. The Executing Court of Sub Judge, Anantnag, relying upon, the decision in Appaji Chetti v. Govindasami Reddi, AIR 1937 Mad 760, held that both the applications having been made by a Vakil who was not duly authorised, they were not in accordance with law and consequently the second application was liable to be dismissed as incompetent and time-barred. The court passed an order accordingly.

2. In the case of Appaji Chetti (supra) it has been observed as follows :--

'It is contended that an execution application need not be presented by the decree-holder or by any person specially authorised on his behalf and that the presentation by any person acquainted with the facts is sufficient. It has been contended that the presentation is not an act contemplated by the Civil Procedure Code and is a mere formality. This argument is based upon the wording of Order 21, Rule 11 (2); but that rule only describes the form of the application. It is necessary to distinguish between an application proper, which is a request to the court to take certain proceedings, and the form in which that request is framed in a document which, although very different, is also spoken of as an application. Order 21, Rule 10 says: 'Where the holder of a decree desires to execute it, he shall apply to the court which passed the decree.' Whereas Order 21, Rule 11 (2) merely sets out the forms in which the application is to be drafted. Any person acquainted with the facts can sign or verify the written application; but only the holder of the decree can apply to the court under Order 21, Rule 10, Order 3, Rule 1 however permits acts to be done by persons who are not parties if they are the recognized agents or pleaders acting on behalf of the party; so that, reading Order 3, Rule 1 and Order 21, Rule 10 together, it is clear that an application, i.e. the moving of the court to do an act, must be either by the party himself by a recognized agent or by a pleader. Name of these persons made the present application. The application was made by a person who had no authority at all and was, therefore, as stated by the learned Judge in (1936) 44 Mad LW 528: (AIR 1937 Mad 239) no application at all'.

3. With respects, I am not inclined to agree with this view. Order 21, Rule 10 saps, 'where the holder of a decree desires to execute it, he shall apply to the Court which passed the decree', whereas Order 21 Rule 11 (2) enables the applicant either, to move the application himself or through some other person acquainted with the facts of the case. Rule 10 and Rule 11 (2) of Order 21 are complementary to each other Rule 11 (2) is intended to convey that the decree-holder need not necessarily move personally for the execution of the decree. He can have it done through some other person acquainted with the facts of the case. In the case of Appaji Chetti (AIR 1937 Mad 760) (supra) a distinction appears to have been drawn between an application proper and the form of an application and it is on this basis that Rule 10 has been distinguished from Rule 11(2). To my mind, the distinction appears to be more artificial than real. An application is a request, whether it is in one form or the other and as such where a form of an application is prescribed it does not cease to be a request. In my opinion Rule 11 (2) enacts a special rule which is peculiar to the execution appli-cations only. By virtue of Rule 11 (2) read with Rule 10 of Order 21 and Order 3, Rule 1 as execution petition can be moved not only by a decree-holder or his recognised agent of a pleader acting on his behalf only but also by some other person who is acquainted with the facts of the case. Where an execution petition is moved by person other than the decree-holder or his recognised agent or a pleader acting on his behalf, it must be proved to the satisfaction of the Court, that such person was acquainted with the facts of the case, of course, only if his competence to move the application is challenged by the other side. iN this view the lower Court ought not to have dismissed the application merely on the finding that the execution application was moved by a Vakil who was not duly authorised. On the other hand, the Court ought to have gone into the question as to whether he was a person who was acquainted with the facts of the case and decided the application accordingly.Since the Court has not done so, theorder is not sustainable in law and mustbe set aside.

4. The result, therefore, is that thisrevision petition succeeds and is allowed,The impugned order is set aside. Thelower Court is directed to pass freshorders in accordance with law afterkeeping in view the observations madeabove. Since the respondent has notappeared in this Court. I make noorder as to costs. The petitioner is directed to appear in the lower Court on5-11-1982.


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