The maintainability of an execution application by a third party must be specifically addressed by the executing court, particularly when the application is not signed by the decree holder.

Hon'ble Ajit Kumar,J.

1. Heard Sri Ashish Agrawal and Sri Harsh Vardhan Gupta, learned counsel for the petitioners and Sri Pankaj Agarwal, learned counsel for the respondents.

2. By means of this petition filed under Article 227 of the Constitution, petitioner has questioned the order passed by the executing court dated 11.12.2024, whereby, his objection under Section 47 CPC has come to be rejected and so also the order passed by the appellate court sitting in revision dated 15.01.2025, whereby the order passed by the executing court has come to be affirmed.

3. The main plank of the arguments advanced by learned counsel for the petitioner is that the decree holder himself did not sign the application seeking execution of the decree as is required under Rule 10 of Order 21 C.P.C. nor there is any satisfaction recorded regarding compliance of Rule 11(2) of Order 21 C.P.C. It is contended on behalf of the petitioner that although this point has come to be referred to by the executing court but it has not adverted to the issue of maintainability of execution application at the instance of a third party, may be he was claiming to be representative / specific Power of Attorney holder of the decree holder. It is submitted that this issue is germane to an application filed for execution in view of Section 47(3) of C.P.C.

4. Upon a pointed query being made, learned counsel for the respondent submitted that the execution of the decree would not invite a judgment of executing court as to the maintainability of the application by a person who appeared to be a specific power of attorney holder. He submitted though the judgment does not refer to various aspect of the matter as far as the objection raised is concerned but it is not disputed between the parties that the decree still stands and deserves to be executed.

5. Having heard learned counsel for the respective parties and having perused the records, what I find is that the executing court while referred to the objection raised in misc. application filed under Section 47 C.P.C. to the effect that execution application was not signed by the decree holder and hence could not have been presented as required under Rule 10 CPC but the court has proceeded to consider the application to be maintainable in view of provisions contained under order 21 Rule 11(2) of C.P.C., There is, however, no discussion and finding as to whether there was specific power of attorney presented before the court and that it was proved.

6. In my considered view, while the judgment is written by a Presiding Judge dealing with the point and disclosing particular application, he should only applied his mind to various grounds of attack raised in misc. application but to deal with each of them and give specific finding qua the objections raised in view of Section 47 sub Section (3) of C.P.C. The maintainability of an execution application by a third party would become germane to the issue in the event it is not presented by the party who is a decree holder. The court of revision has simply affirmed the judgment passed by the executing court, therefore, the said order is equally unsustainable on the same point.

7. At this stage Mr. Agarwal submitted that a hypertechnical stand has been taken by the judgment debtor otherwise the decree holder is fully represented by the specific power of attorney holder and in the event this court finds the judgment to be unsustainable, it may direct the court concerned to dispose of the misc. application afresh within a time bound period. Mr. Agarwal submits that the specific power of attorney executed in favour Gurdas Mal was already there on record.

8. In view of the above, while I proceed to set aside the order passed by the executing court dated 11.12.2024 passed in Misc.Case No. 21 of 2018 disposing of the application under Section 47 C.P.C. filed by the petitioner and so also the order passed by the Additional District Judge dated 15.01.2025 passed in S.C.C. Revision No. 140 of 2024, I he