Yaramath Khan Bahadoor v. Nawab Amir Ul-Umra Bahadur

This is an appeal against an order allowing execution against the judgment-debtor in O. S. No. 1310 of 1921 on the file of the District Munsif of Kurnool. The District Munsif allowed execution to proceed overruling the objections raised and the District Judge has confirmed the order.

It is contended in Second Appeal that the lower Courts have not complied with the provisions of O. 21, R. 15 (2), and therefore their orders are bad.

There are 11 decree-holders and one judgment-debtor the 1st defendant who is the appellant before me. The execution application was put in by 4 of the decree-holders the other decree-holders being made counter-petitioners to the application. No objection seems to have been taken by the 1st defendant under R. 15 (2) that execution should not be allowed on an application of some only of the decree-holders. The learned Judge has, therefore, not passed any definite order under Cl. (2).

The application itself was professedly by the applying decree-holders under R. 15 and 66 of O. 21, Civil Procedure Code; thereby indicating that they were executing the decree not only on behalf of themselves but on behalf of all. Evidently, the District Munsif thought it unnecessary to pass any special orders for the protection of the interests of those who did not join in the application? as no objection was taken. In appeal also this objection has not been dealt with by the District Judge. He says “no other point arises.”

It is urged by the learned vakil for the appellant that the point was raised before the District Judge; but it seems to be very doubtful, if this was so from the way in which the learned judge has written his judgment. However, not having taken the point in the first Court, it is not a ground for setting aside the order for execution now.

It is said that there are certain minors involved in the case. But these minors are persons applying for the execution of the decree through their guardian. If, after realising the money by the sale of properties, there is any difficulty in the distribution of the sale proceeds and the payment over of the money to the adult decree-holders under O. 32, R. 6, the Court will no doubt take care that security is furnished before money is paid. But at this stage that objection is not valid.

The Civil Miscellaneous Second Appeal is dismissed with costs.

K.S.DAppeal dismissed.