T KAMESWAR RAO Vs. PANASA NARAYANAMMA
HIGH COURT OF ORISSA
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MOHANTI, J. -
(1.) This is an appeal by the decree-holders against an appellate order of a learned single Judge of this Court holding their execution application as barred by limitation. The decision of the learned single Judge is reported in ILR (1975) Cut 927 (Panasa Narayanamma v. T. Kameswar Rao).
(2.) T. Bhaskar Rao, the deceased father of the appellants, obtained a decree on 30-1-56 for recovery of possession of certain immovable property. On 6-10-58 Execution Case No. 95 of 1958 was filed by one G. Krishna Rao as the power-of-attorney holder of the said T. Bhaskar Rao. On 19-3-59 the judgment-debtors filed an application under S. 47, C.P.C. challenging the maintainability of the execution case on the ground that G. Krishna Rao had not been authorised by the decree-holder to file the execution case. On 30-3-59 the executing court directed the decree-holder to appear before a Magistrate, first class and swear an affidavit that G. Krishna Rao was his power-of-attorney holder. As there was no compliance with the court's direction the execution case was dismissed for default on 10-7-59. On 25-6-62 the appellants filed Execution Case No. 59 of 1962, the original decree-holder having died in the meanwhile. The judgment-debtors respondents challenged the maintainability of the execution case on the ground that the previous execution application in Execution Case No. 95 of 1958 was not an application in accordance with law within the meaning of Art. 182 (5) of the Indian Limitation Act, 1908 and as such it did not save limitation. The learned Subordinate Judge found that the previous execution application was duly made in accordance with law. Accordingly he dismissed the judgment-debtors' objection. On appeal, the decision was reversed by the learned single Judge on the finding that the earlier execution application was not in accordance with law as the executing court doubted the authority of G. Krishna Rao to file the execution application and called for an affidavit from the decree-holder and the same not having been filed the execution case was dismissed for default. The correctness of this finding is assailed in this appeal.
(3.) Order 21, Rule 11 C.P.C. provides for the mode of application being made to the court. Sub-rule (1) of O. 21, R. 11 provides for an oral application. Such an application can be made only by the decree-holder himself. Sub-rule (2) of O. 21, R. 11 provides for cases other than those provided by sub-rule (1) and it states that every application for the execution of a decree shall be made in writing, signed and verified by the applicant or by some other person who proves to the satisfaction of the court that he is acquainted with the facts of the case. Under O. 3, R. 1 C.P.C. an application to any court may be made by a party himself or by his recognised agent or by a pleader appearing, applying or acting on his behalf. Under O. 6, R. 15 it is provided that save as otherwise provided by any law for the time being in force, every pleading shall be verified at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the court to be acquainted with the facts of the case. From a cumulative reading of all the above provisions, namely, O. 6, R. 15, O. 3, R. 1 and O. 21, R. 11 (2) of the Code it is clear that the legal requirements for an application for execution are that it has to be signed by the party himself or his recognised agent or by his pleader while the verification can be done by the party or one of the parties or by some person proved to the satisfaction of the court to be acquainted with the facts of the case.;
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