JAGAT NARAYAN, J.—These are two connected execution second appeals, by one of the judgments-debtors named Ghanshyam Das, arising out of the execution of a decree for money passed by the Sudder Adalat of the then State of Jaisalmer on 27.12.45.

2. No codified law was in force in that State but justice was administered in accordance with the principles underlying the laws which were in force in British India. Under notification No. 925/1554-G/46, dated 1st March, 1946, the Code of Civil Procedure and some other Acts in British India were adopted "with due adaptation to local conditions in regard to the constitution and power of the courts and such recognised customs or old practice as is not immoral or is opposed to public policy." One of the modes for executing a money decree which was in vogue in that State was that on the application of the decree-holder for execution, immovable property of the judgment-debtor was attached on the formers Nishan-dehi and the decree-holder was put into possession of it. He was entitled to retain possession till the judgment-debtor paid the decretal amount to him. This mode of execution of money decrees was not regarded as immoral or opposed to public policy and continued after the issue of the above notification.

3. The decree-sheet was drawn up on 11.9.47 and on 28.9.47 the first execution application was filed by the decree-holders. The prayer made in this application was that relief may be granted by executing the decree. On this execution application notices under O. 21, R. 22 were issued to all the judgment-debtors. Notice was sent to Ghanshyam Das appellant by registered post. He refused to accept it and the envelope containing the notice was received by the court with the endorsement of refusal made on it by the postal authorities. This was regarded as sufficient service by the executing court and this fact was recorded in the order-sheet dated 5.9.48.

4. On 5.9.43 the decree-holders made a further application in continuation of the application dated 28.9.47 praying that three houses belonging to the judgment-debtors may be attached on their nishan-dehi. On this application the executing court ordered the attachment of the houses on 8.9.48. Three houses were attached under this order. Thereafter on 12.9.48 the executing court issued a proclamation inviting objections against the attachment within a period of two months. No objection was received during this period. On 11.12.48 one Haridas sent an objection by post to the court purporting to be under O. 21, R. 58 C.P.C. in which he claimed half share in one attached house and one-third share in another. This objection was rejected on the ground that it was not properly presented and was belated.

5. On 30.12.48 the decree-holders filed an application praying that possession over two of the attached houses may be delivered to them. It was stated by them that the third house belonging to Bithal Das, judgment-debtor, who had paid his one-sixth share of the decretal amount to them and it was prayed that his house may be released from attachment. On this application the executing court passed an order on the same day for the delivery of possession over two of the attached houses to the decree-holders. On 8.1.49 possession over these two houses was delivered to them.

6. On 13.3.49 Haridas filed a regular suit under O. 21, R. 63 C.P.C. in the Sudder Adalat claiming half share in one attached house and one-third in the other. Along with his plaint he filed an application for restoration of possession over the two houses to him on the ground that his movable property was kept in them. On 10.4.49 the presiding Judge of the court passed an order that possession over the two houses be delivered back to Haridas on furnishing security in the sum of Rs. 5000/- pending decision of the suit under O. 21, R. 63 C.P.C. This order was not executed and Haridas made an application to the court for executing the order. By then the previous presiding Judge had been tra

Click Here to Read the rest of this document