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IN THE HIGH COURT OF ALLAHABAD
K. N. Goyal, J.
FARUKH - Appellant
Versus
DISTRICT JUDGE - Respondents
Writ Petn. 4015 Of 1982
Decided On : 07/11/1984
EXECUTION OF DECREE - DEFECTS IN EXECUTION APPLICATION - AMENDMENT - MANDATORY OR DIRECTORY - ORDER 21, RULES 11, 17(1A) C. P. C. - APPLICABILITY - EXECUTION OF APPELLATE DECREE - PRODUCTION OF CERTIFIED COPY - ORDER 22, RULE 11(3) C. P. C. - APPLICABILITY - OBJECTION TO EXECUTION BY PERSONS NOT PARTIES TO THE DECREE - MAINTAINABILITY.
Fact of the Case:
Petitioners, judgment-debtors, challenged execution proceedings against them in a suit for ejectment. The decree-holder had filed an execution application after the dismissal of a second appeal, during which a stay order was in place. The petitioners objected, arguing that no notice was given to Najmur Rahman's heirs, that the execution application was defective, and that the appellate decree should have been executed instead of the trial court's decree.
Finding of the Court:
The court held that the execution application was not defective as it was filed before Najmur Rahman's death and the decree-holder had brought to the notice of the execution court that his heirs had been brought on record in the second appeal. The court also held that the decree-holder was not required to produce a certified copy of the appellate decree unless specifically required by the execution court. The court further held that the petitioners, who were not parties to the decree, could not raise objections that were available to Najmur Rahman's heirs.
Issues: 1. Whether the execution application was defective for want of compliance with Order 21, Rule 11(2)(i) C. P. C.? 2. Whether the provisions of Order 21, Rule 11 are mandatory or directory? 3. Whether the execution application should have been for the execution of the appellate decree instead of the trial court's decree? 4. Whether the decree-holder was required to produce a certified copy of the appellate decree? 5. Whether the petitioners, who were not parties to the decree, could raise objections that were available to Najmur Rahman's heirs?
Ratio Decidendi: 1. The execution application was not defective as it was filed before Najmur Rahman's death and the decree-holder had brought to the notice of the execution court that his heirs had been brought on record in the second appeal. 2. The provisions of Order 21, Rule 11 are directory and not mandatory. 3. The decree-holder could apply for the execution of the appellate decree after the dismissal of the second appeal, and the execution proceedings could be revived on the basis of the appellate decree. 4. The decree-holder was not required to produce a certified copy of the appellate decree unless specifically required by the execution court. 5. The petitioners, who were not parties to the decree, could not raise objections that were available to Najmur Rahman's heirs.
Final Decision: The writ petition was dismissed with costs.
( 1 ) THIS writ petition has been filed by three of the judgment-debtors against execution proceedings pending against them in the Court of the Munsif North, lucknow.
( 2 ) OPPOSITE party No. 3 as the landlady of the certain accommodation situated in the city of Lucknow filed a suit for ejectment in the Court of Munsif North. This was suit No. 492 of 1967. The tenant was one Najmur Rahman. He was defendant No. 1 in the suit. Four other persons were impleaded as defendants, namely, Mohammad Hasnain, Karam Khan Farukh, and Imran son of mohammad Hasnain. Out of them Karam Khan has died and is represented by srimati Noor Jehan petitioner No. 2, Imran is opposite party No. 4. Petitioner no. 3 and opposite parties 5 and 8 are other heirs of Mohammad Hasnain. Opposite parties 9 to 17 are the heirs of Najmur Rahman.
( 3 ) THE contention of the plaintiff, was that the tenant, namely, Najmur Rahman had committed a wilful default in payment of arrears of rent and had also sublet the premises to the other defendants mentioned above. The trial Court upheld both these pleas and decreed the suit for ejectment and rent. The lower appellate Court upheld the finding of wilful default but did not uphold the finding of illegal subletting. It, however, maintained the decree against all the defendants. The trial Courts decree is dated 20-5-69 and the order of the lower appellate Court is dated 1-12-75. The plaintiff-decree-holder then filed an execution application on 20-4-76, vide Annexure 1 to the writ petition, mentioning that no second appeal was filed till then. A second appeal was, however, filed by the defendants other than Najmur Rahman soon thereafter. During the pendency of that second appeal Najmur Rahman died and his heirs were brought on the record.
( 4 ) ULTIMATELY the Second Appeal was dismissed on 18-5-81. During the pendency of the Second Appeal a stay order had been passed by this Court. As a result of the stay order execution proceedings remained pending. On 22-5-81. vide Annexure 2 to the writ petition, the following order was passed by the execution Court :--
"22/5/81 c-16-Appin. along with copy of order of Honble High Court for proceeding the execution filed. ORDER execution to proceed As stay order has been vacated issue warrant Under Section 21-B5 fixing 14-8-81 for Report. "
Copy of the application No. C-16 referred to in this Court is not available, as the record of the execution Court appears to have been misplaced and each party has blamed the other for the loss of the record
( 5 ) AN objection under Section 47 C. P. C. was thereupon filed by the present petitioners. A copy of this objection is Annexure 3 to the petition. Among the pleas taken were the follows :-
" 7. That no decree for ejectment has been passed or could legally be proved against the objector. It is further stated that no decree was even claimed against the objectors. That Sri Najmur Rahman against whom the decree was passed died on 4-3-1976 and his heirs have neither been impleaded nor they are living in the premises in dispute. It is further stated that no execution application has been moved against them. "
( 6 ) IN the reply to this objection filed by the decree-holder, vide Annexure 5, it was stated in para 10 of the accompanying affidavit as follows : -
"10. That it will be wrong to state that the objectors are living under their independent rights and the judgment-debtor No. 1 has nothing to do. Sri Najmur Rahman had already died and their heirs had been brought on the record before the Honble High Court, Lucknow Bench, in the Second appeal during its pendency.
( 7 ) THE objection of the petitioners was dismissed by the learned Munsif on 297-81, vide Annexure 7. A revision was filed in the court of the District Judge, vide memo, Annexure 8. The revision was dismissed on 11-8-82 by the 6th additional District Judge, vide order, Annexure 9. Aggrieved thereby the petitioners have come to this Court.
( 8 ) LEARNED counsel for the petitioners
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