1958 Supreme(Raj) 145

High Court Of Rajasthan
Judgename : I.N.Modi
HARAKCHAND - Appellant
Versus
KHETDAN - Respondent
Execution Second Appeal 38 Of 1954
Decided On : 05/06/1958

An application for execution of a decree must be in accordance with the law relating to the execution of the decrees whether found in the Code of Civil Procedure or otherwise.

Headnote:

EXECUTION OF DECREE - LIMITATION - APPLICATION FOR EXECUTION - STEP-IN-AID - CERTIFIED PAYMENTS - ACKNOWLEDGMENT OF PAYMENT - ABATEMENT OF APPEAL - LEGAL REPRESENTATIVES.

Fact of the Case:

The decree-holders obtained a decree for Rs. 4000/- and costs against Sameldan on 13th September 1932. Sameldan died during the course of the execution proceedings, and, therefore, his son Khetdan the present respondent was substituted on the record in place of Sameldan. The decree-holders filed an execution application on 5th November 1941, and this was dismissed in partial satisfaction on 8th April 1942. Thereafter they filed another application for execution on 5th April 1948. This was dismissed for default on 24th September 1948. A further application was thereafter filed on 15th September 1949, and it is this application out of which the present appeal arises.

Finding of the Court:

The execution application of 1948 was not an application in accordance with law and, therefore, the present application having been filed in 1949 was filed more than six years of the final order dated 8th April 1942, passed on the next preceding application of November 1941. The District Judge also held that Jeevraj, another son of Hukmichand was not a necessary party to the appeal filed before him inasmuch as the decree-holders application for the substitution of the legal representatives of Hukmichand decree-holder on his death did not really contain Jeevrajs name, and the same appeared, according to the learned District Judge, to have been interpolated therein later. The learned District Judge further held that Mst. Lehri was the proper representative of Lad-mal to have been brought on the record, and in coming to that conclusion he placed his reliance on Section 3 of the Hindu Womens Rights to property Act of 1937. On the question of abatement of the appeal before him owing to want of Jeevraj having been brought on the record as Ladmals legal representative, the learned Judge was of the view that Harakchand son of hukmichand was already on the record, and, therefore, the failure to bring Jeevraj also on the record as the legal representative of Ladmal could not result in the abatement of the appeal.

Issues: 1. Whether the execution application presented to the executing court on 5th April 1948 was an application in accordance with law? 2. Whether the certified payments of Rs. 331/-, 250/- and 734/- made respectively on 6lh April 1943, 9th February 1945 and the 8th February. 1917, save the limitation for the decree-holders? 3. Whether the appeal before the lower appellate court was not properly constituted as Jeevraj, one of the sons of hukmichand, who on the latters death, had been brought on the record, was not impleaded as a respondent therein? 4. Whether the appeal in the District Judges court abated on the death of Ladmal during its pendency in the court below?

Ratio Decidendi: 1. The execution application of 1948 was not an application in accordance with law as it did not specify the mode of execution as required by clause (j) of Sub-rule (2) of Rule 11, Order 21, C. P. C. 2. The certified payments cannot extend the limitation in the present case under Section 20 of the Limitation Act, as an essential requirement of that section as to the acknowledgment of payment appearing, in the handwriting of the person making the payment or in a writing signed by him within the usual period of limitation has not been fulfilled. 3. The appeal before the District Judge was not incompetent because Jeevraj had not been impleaded as a respondent in that appeal as Jeevraj never became a party in the executing court. 4. The appeal in the District Judges court did not abate on the death of Ladmal during its pendency in the court below as Harakchand being the manager and being already on the record, though in a different capacity, substantially represented the interests of the joint Hindu family consisting of Harakchand and jeevraj, and that the failure to further being Jeevraj on the record did not really matter and did not have the effect of resulting in the abatement of the appeal in the lower appellate court in the circumstances of this case.

Final Decision: The appeal is dismissed.