Madhoram Sand and Others vs Lachmi Prasad Singh

Saunders, J.—This appeal has been preferred from an order of the Subordinate Judge of Monghyr dismissing an execution case on the ground that it was barred by limitation. The decree which was for money was obtained in the Court of the Subordinate Judge of Benares in 1917. There were execution cases in that Court in 1919, 1921 and 1923 by means of which the decree was partly satisfied. The fourth-case was numbered 166 of 1925. In that case on 20th May 1926 after attachment of movable property belonging to the judgment-debtor the decree holders were directed to take further action in the matter of the sale proclamation within a week, but on 25th May, when the decree-holders had still two days in which to comply with the order, information was received by the Court that the sale had been stayed by the High Court.

The order then made was that the execution case would be struck off with costs to the decree-holders, the order of attachment being kept in force. Within three years from the date of that order, that is to say on 11th August 1928, the decree-holders made another application for execution of the decree in which the following prayer was made:

As Pandit Sheoramji Sand, son of Maniram Sand, one of the decree-holders died while a member of the joint Hindu family and the petitioners decree-holders are jointly in possession and occupation of all his heritage by right of survivorship and inheritance they are entitled to recover the decretal money. Hence a notice for substitution was at first issued and the property under attachment which is on sale was attached in execution case No. 166 of 1925; the execution case went up to the High Court in appeal on the objection of the judgment-debtor under the decree; but the appeal having been dismissed it has come back. Hence the notification of sale may be issued and the entire amount of the decree and the costs of execution may be realised by sale of the properties under attachment.

The application was made by the original decree-holders and the heirs of the deceased decree-holder Sheoramji Sand. This application is noted in the order sheet as having been filed as an execution petition on 11th August 1928 and a report on it was called for from the office, On perusal of the report the Court directed that the application for execution should be entered in the register of miscellaneous cases for disposal of the substitution matter and it was not numbered as an execution case until 20th July 1929 when proof was given of notice of the application to the judgment-debtor by publication in a newspaper, personal service of the notice having proved ineffective.

The case was then numbered 88 of 1929. Some more of the judgment-debtor''s movable properties were sold and a certificate of part satisfaction was sent by the Court to the Subordinate Judge of Monghyr to whom the decree-holders made an application for execution on 22nd January 1930. The judgment-debtors made a number of objections one of which was that there could be no further execution because execution case No. 83 had been barred by limitation. This objection was allowed and the appeal is against that order.

The decree-holders knowing that they had made their application for execution in 1928 referred to it as case No. 83 of that year. The learned Subordinate Judge finding that case No. 83 of 1928 was in respect of a different decree and that the decree-holders'' execution case was numbered 83 of 1929 concluded that the decree-holders had kept the application dated 11th August 1928 for nearly a year before presenting it to the Court. The explanation of the discrepancy in regard to the dates is apparent from the statement I have given of the facts of the case. Exhibited documents would have shown to the learned Subordinate Judge, had he referred to them that the application was made and registered on the date it bears, that is to say on 11th August 1928.

It was pleaded in the lower Court on behalf of the decree-holders that even if the application was made in July 1929, more than three years after the previous execution case was struck off, it should be deemed to be a continuation of that case. This plea was rejected by the learned Subordinate Judge because he considered that the Benares Court had no power to direct in, the former case that the attachment would continue in view of the provisions of Order 21, Rule 57, Civil P.C. That rule however is not applicable. It provides that where any property has been attached in execution of a decree, but by reason of the decree-holder''s default the Court is unable to proceed further with the application for execution, it shall either dismiss the application or for any sufficient reason adjourn the proceedings to a future date; and that upon the dismissal of such application the attachment shall cease. In the present case there had been no default by the decree-holders.

Thus the reasons given by the learned Subordinate Judge for holding that the execution case was time barred are manifestly erroneous. This was conceded by Mr. Das, but he contended that the application of 1928 did not become an application for execution in accordance with law until substitution was made and then it was out of time. The argument is based on the provisions of Order 21, Rule 15, which required that where a decree had been passed jointly in favour of more persons then one, any one or more of such persons may, unless the decree-imposes any condition to the contrary, apply for the execution of the whole decree for the benefit of them all, or, where any of them has died, for the benefit of the survivors and the legal representatives of the deceased. Sub-rule (2) states that:

Where the Court sees sufficient cause for allowing the decree to be executed on an application made under this rule it shall make such order as it seems necessary for protecting the interests of the persons who have not joined in the application.

Mr. Das argued that the application ought to have been for leave to execute the decree for the benefit of the surviving decree-holders and the heirs of the deceased decree-holder. The reply to this contention is that the heirs themselves were parties to the application. There was no question therefore of any order having to be made under Sub-rule (2) for protecting the interests of the persons who had not joined in the application, for there were no such persons.

I consider therefore that the application made on 11th August 1928 was a lawful application for execution and consequently there is no bar of limitation to the execution of the decree. I would allow the appeal with costs in both Courts and remand the case for decision of the other objections taken by the judgment-debtor. It is unfortunate that these objections were not also dealt with by the learned Subordinate Judge, as in my opinion they ought to have been, in deciding a case which continued for nearly a year and a half in his Court.

Courtney Terrell, C.J.

I agree.