Mukerji, Lindsay, Dalal, Ashworth, Kendall and Pullan, JJ.:— This case has been referred to a Full Bench to obtain a decision of the question, viz., which of the two cases— D.S Apte…Plaintiff v. Tirmal Hanmant Savnur…Defendant . was correctly decided?
The facts of the case are only partially given in the judgement of the lower court. This being a first appeal, we looked into all the facts involved in the case and we find that having regard to certain facts to be presently mentioned, the question referred does not arise for decision.
The appellant's late father, Ram Lal, and certain other persons obtained a decree for sale which was made final on the 28th of September, 1912. The date given in the execution application is presumably the date of the preliminary decree. After an in fructuous application, another was made on the 22nd of December, 1915. In the course of this execution the parties came to terms. It was agreed that out of the sum of Rs. 5,338 then found due, the judgement-debtors should pay up at once the sum of Rs. 338 and should pay the balance by yearly instalments of Rs. 330. The judgement-debtors regularly paid three instalments and thereafter made a default. Another application, accordingly, followed and it ended in no result. The fourth application was made on the 22nd of October, 1923, and, the property being ancestral, the execution of the decree was transferred to the Collector. In the meantime the judgement-debtors' interest in the property had been sold in execution of a simple money decree obtained by the respondent against them, and was purchased by him, and, consequently, the respondent was made a party as a successor in title of the original judgement-debtors. The respondent made a deposit of Rs. 1,000 and asked for a year's time to enable him to pay up the balance of the decretal amount. The Collector gave three months' time and finding it unnecessary to keep the case pending in his court, returned the decree and the papers to the civil court. After the expiry of the three months which were granted by order dated the 16th of October, 1924. Ram Lal, by an application, dated the 28th of January, 1925, prayed that the “papers of the former execution” might be sent to the Collector for execution. This application was granted by order dated the 6th of February, 1925. Almost immediately after this Ram Lal died and his sons, the present appellants, put in the last and sixth execution application on the 28th of April, 1925, praying that they might be brought on the record in place of their late father and that the execution might be proceeded with. It is to be noted that Ram Lal had been taking out execution for the benefit of himself and his co-decree-holders, and his sons also made a similar prayer.
When the execution proceedings were pending in the court below, the respondent Ram Bharos preferred an objection to the execution, basing his case on section 48 of the Code of Civil Procedure. He urged that twelve years had expired from the date of the decree, viz., 28th of September, 1912, and that, therefore, the sixth application of the 28th of April, 1925, was not entertainable. The learned Subordinate Judge accepted this plea and dismissed the application as barred by time.
In the court below it was urged that the compromise between the original judgement-debtors and the decree-holder, effected on the 18th of December, 1916, having been accepted and recorded by the court, there came into existence a “subsequent order” within the meaning of section 48 of the Code of Civil Procedure, by which recurring periods were fixed for payment of the decretal amount and that, therefore, the limitation of twelve years would begin from the dates of default in making payment at those recurring periods. The learned Subordinate Judge found that he was bound by the case of Jurawan Pasi v. Mahabir Dhar Dube and that the order of the execution court could not be a “subsequent order” contemplated by section 48.
In this Court this argument has been repeated on behalf of the decree-holders.
As already stated, on examination of the record and on the admission of the parties, we discovered that certain aspects of the case, already noted above, were not noticed in the court below. Those were these. The respondent himself asked for a year's time and obtained three months on the 16th of October, 1924. The grant of time by the Collector did not in any way dispose of the application. The application should have been kept pending by the Collector on his file. He however, chose to return the papers to the civil court. On receipt of the papers on the 23rd of December, 1924, the civil court passed the following order:—
“The papers having been received today it is ordered that an entry be made in the register of execution and the papers be consigned to the record room in the judgeship of Cawnpore along with the basta (the files of other cases).”
The order shows that the learned Subordinate Judge did not consider the application on the merits and did not decide whether, the application was to be dismissed or was to be granted. He received the papers back from the court of the Collector and ordered that they should be consigned to the record room. As recently held in the Full Bench case of Chhattar Singh v. Kamal Singh, a disposal of an execution proceeding like the above was not a final decision of an execution application. The application must be treated as still pending on the 23rd of December, 1924. The decree-holder, Ram Lal by his application dated the 25th of January, 1925, did not ask for any fresh prayer. All that he wanted was that the (missil ijra sabik) records of the previous execution should be sent back to the Collector. He was, therefore, simply asking for reviving the execution which had been suspended by the order of the Collector and by the consignment of the papers into the District Judge's record room. In this view, which is in accordance with the Full Bench case already mentioned, the application of the 25th of January, 1925, was not a “fresh application” within the meaning of section 48 of the Code of Civil Procedure. It was an application to carry on a previous application which was still pending.
When the sons of Ram Lal, on his death, made the application of the 28th of April, 1925, they did not ask for any fresh proceedings. They said that Ram Lal's name might be removed and the petitioners' names might be entered in the array of decree-holders. They had to make an application in the usual form of ten columns, because there is no rule of law which enables the legal representative of a deceased decree-holder to apply for mere substitution of names. He must apply, whenever he does apply, for execution of the decree, vide order XXI, rule 16, of the Code of Civil Procedure. It is clear, therefore, that neither the application of the 28th of January, 1925, nor the application of the 28th of April, 1925, was a “fresh application” within the meaning of section 48 of the Code of Civil Procedure.
The result is that the question whether a fresh application should be granted or not has not yet arisen.
We set aside the decree of the court below, dismiss the respondent's objection to the execution and remand the case to the lower court with the direction that the execution be proceeded with according to law. The appellants will have their costs in this Court and in the court below.
Walsh, A.C.J:— I have read the judgement of Mr. Justice Mukerji and agree. This, is sufficient to dispose of the case, and renders it unnecessary to express any opinion upon the question of law which was referred to this Special Bench, namely, the true interpretation of the expression “subsequent order” in section 48 of the Code of Civil Procedure. I prefer to reserve my opinion upon the question whether Jurawdn Pasi v. Mahabir Dhar Dube was right. There are difficulties about the contrary interpretation, and I entertain considerable doubt whether the execution court has jurisdiction to alter the decree by directing payment by instalments even by consent. But all difficulty can be removed by the exercise of a little common sense. If the execution court is applied to, it can refer the parties to the trial court, where the application can be dealt with, and in the great majority of cases the two courts are identical.
By the Court.— We set aside the decree of the court below, dismiss the respondent's objection to the execution and remand the case to the lower court with the direction that the execution be proceeded with according to law. The appellants will have their costs in this Court and in the court below.
Decree set aside.
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