Decided on July 17,1969

NEKIRAM Respondents


B.DAYAL C.J. - (1.) THIS is a Letters Patent Appeal arising out of a decision of a learned single Judge of this Court in an execution matter. A preliminary decree for foreclosure was passed on 14th November 1958 in favour of two brothers Nekiram and Pyarelal. The decree was made final on 2nd November 1963. One of the two brothers, namely, Pyarelal filed an application for execution of the decree and claimed delivery of possession over the property, as the amount was not paid by the judgment-debtors. During the pendency of the execution the other decree-holder Nekiram filed an application on the 16th of July 1964 praying that the decree was being executed by the joint decree-holder against his interest and that he is not likely to give him his share. He, therefore, prayed that some arrangement be made so that he may get his rights secured. One of the suggestions made in the application was that the possession be delivered jointly to both the decree-holders. Subsequently, the judgment-debtors made an application on the 20th of August 1964 stating that they had purchased the interest of the decree-holder Nekiram in the decree and they prayed that the name of the judgment-debtors be substituted in place of Nekiram decree-holder. They also prayed that the execution be dismissed. THIS application of the judgment-debtors was rejected by the trial Court on the ground that the judgment-debtors, even if they had purchased the share of Nekiram, were not entitled to be substituted in place of the decree-holder; nor were they entitled to have the application for execution of the decree dismissed merely on that ground. That order was upheld by a learned single Judge of this Court and consequently this Letters Patent Appeal has been filed.
(2.) LEARNED counsel for the judgment-debtor-appellants has strenuously contended that the judgment-debtors' prayer could not be rejected without making an enquiry into the facts whether the judgment-debtors had in fact purchased the share of the decree-holder Nekiram and without finding out what was the share of Nekiram in the decree and that the Court was bound to give effect to the sale in favour of the judgment-debtors at least to the extent that the decree must be deemed to have been satisfied as regards the share of Nekiram, and without going into these facts the Courts were wrong in dismissing the application of the judgment-debtors. After hearing learned counsel at length we are not able to see any force in any of the contentions of learned counsel. The decree in this case is a decree for delivery of possession of specific property. Such a decree cannot be satisfied except by delivery of possession. It is a joint decree in favour of two persons. In the present case it is not alleged that the judgment-debtors have given possession of the property to the decree-holders jointly, either in whole or in part. There is no question, therefore, of any satisfaction of the decree either wholly or in part. The judgment-debtors at the most allege that they have purchased the interest of Nekiram in the decree. The only right which the Code of Civil Procedure gives to a purchaser of a share in the decree is under Order 21, rule 16 to make an application for execution for the benefit of all the decree-holders. The judgment-debtors are not seeking to do that and if the purchasers have not made an application for execution, there is no occasion for the executing Court to go into the question whether the purchasers have in fact acquired any right under their sale deed, and if so, what are their rights. In the present case Pyarelal, one of the decree-holders, has applied for execution of the decree. He is entitled to execute the whole decree, which execution is, under the law, certainly for the benefit of all the decree-holders. The Courts below were, therefore, right in allowing the decree-holder Pyarelal to continue to execute his decree as a whole. By such an execution it is obvious that neither the rights of Nekiram nor his transferee, if any, will be affected. If delivery of the whole house is taken by Pyarelal, it will be open either to Nekiram or to his transferee to prove their rights and to claim the share in the property from Pyarelal by a proper suit or proceeding which he may deem necessary to institute. We, therefore, see no force in this appeal. It is dismissed with costs. Counsel's fee is fixed at Rs. 100. Appeal dismissed.;

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