Chopra, J. - (1.) THESE two appeals, one by the decree -holder and the other by one of the judgment -debtors, are directed against an order of District Judge, Barnacle, made on 5 -6 -51, in an execution case pending before him. The facts relevant to the points raised in the appeals are these. On ,10 -3 -87, Walaiti Ram and Kishore Chand of Phil got a money decree against Amar Singh Biswedar. of Gurdit -Singh -wala, from the court of the Nazim, Paul. The first application for its execution with a prayer for detention in civil prison of Amar Singh was presented on 23 -4 -87. The request having been (refused, the matter was taken in appeal to the Judicial Member of the erstwhile Nabha State and before him the parties entered into a compromise. The decretal amount was fixed at Rs. 12,500/ - and the same was made payable by six -monthly installments of Rs. 400/ - each, first installment to be paid on Lohari 1993. It was further stipulated that in case of default in payment of any installment on due date the decree -holder would be entitled to recover the balance forthwith by sale of the judgment -debtor's land. The Judicial Member after referring to the composition and the terms thereof dismissed/the decree -holder's appeal on 20th Sawan, X 1993r The first three installments were duly paid Staffs. on default having been made in payment
(2.) M the fourth, the decree -holder again took out execution for realization of the balance due. This application proved in fructuous and after Anr. application had also met with a similar fate, the decree -holder presented the present execution application on 25 -8 -2003". It may be mentioned that Amar Singh and one of his sons, namely Jang Singh, having died in the meantime the execution was taken out against Balbanadur Singh and Gurdev Singh his sons and Dhanna Singh son of Jang Singh. A prayer for realization of the amount by attachment and sale of "immovable and movable property of Amar Singh in the hands of his sons and grand -sou was made in ,this - application and it was mentioned that a 'copy of Fard -Intkhab relating to agricultural land would be submitted later on. The executing court, before taking any action on the application, took about an year and a half to satisfy itself as to whether the application was prima facie within time. And then on 4 -1 -2005, leaving the question of limitation to be decided on objection, if any, being raised by the judgment -debtor, ordered notices under Order 21, Rule 22, Code of Civil Procedure to be issued. On 8 -8 -2005 after the formation of this Union the case was transferred to the file of the District Judge, Barnala, and thereafter was dealt with by hinth Notices to the judgment -debtors were again ordered to be issued end Balbahadur Singh appeared .for the first time on 19 -11 -2005. He put in his objections on 23 -5 -2006, which were to the effect that the execution application was beyond time', that the land which was sought to be attached was ancestral, and that it could not, there - fore, be proceeded against in execution of a decree against his father. Till then the decree -holder had' not specified the property against which he - wanted to proceed and had not put in a copy of the Fard Intkhab to which reference was made in -the application. The court, therefore, regarded the objection with respect to ancestral nature of the land as premature and directed the decree -holder to specify. the property and also to put in a copy of the Fardintkhab relating to the land that he wanted to be attached and sold in execution of the decree. This was done on 28 -0 -2003 and it was then that the court framed the following issue: Whether the land sought to be attached by the decree -holder is ancestral qua the judgment -debtors and is, therefore, not attachable? O. J. D. The objection of Balbahadur Singh regarding limitation probably was not pressed and no issue on the point was struck. Balbahdur Singh took several adjournments to adduce evidence in support of the issue and the last of them was granted subject to payment of Rs. 5/ - as costs. Even after all these adjournments he failed to examine any evidence and the court decided the issue against him on, 22 -10 -2006 and rejected the objections. This order stated that the judgment -debtor, in spite of "a number of adjournments granted to him, was not able to substantiate the objections. It was also mentioned that the objector had not personally -appeared, nor had the costs been paid. The agricultural land was, therefore, ordered to be attached. After attachment had been effected and the land was ordered to be sold, the other two judgment -debtors, namely Gurdev Singh and Dhanna Singh came forward with objections almost identical to those which were previously raised by Balbahadur Singh and were decided against him. This they did on 11 -8 -2007 and consequently the following issues were framed: 1. Whether the execution is within time? On D. H. Whether the property attached can be temporarily alienated in the hands of sons and grandson of the judgment -debtor? On D. H.
(3.) WHETHER the objections are competent in view of the pronouncement of the learned District Judge dated 22 -10 -2006? On D. H. Since the other judgment -debtors were not parties to the objection -petition presented by Balbahadur Singh and no notice, of the same had been served on them, issue No. 3 was decided by the executing court against the decree -holders. As regards limitation, the judgment -debtors contended that the execution application was presented mow than 12 years after the decree and was, therefore, barred under Section 48, Code of Civil Procedure The position of the decree -holders on the other hand was that the extreme limit of time under this section within which an application for execution could be presented, was to be reckoned from the date of default in payment of the fourth installment in terms of the compromise entered into between the parties before the Judicial Member. The executing court was of the opinion that the order of the judicial Member, based on the agreement, amounted to a 'subsequent order and 12 years time under Section 48, Code of Civil Procedure therefore, was to be reckoned from the date of default when the decree -holders became entitled to recover the balance from the judgment -debtors. For this reason issue No. 1 was decided in favor of the decree -holders. Copies of the Jamaband for the year 1984 and 1985 showed that the entire holding of Amar Singh and his brother Lai Singh was joint and they possessed it in equal shares. This meant that the land in dispute which was part of that holding descended to Amar Singh from his father. It was, therefore, held that the land was ancestral and since Amar Singh was admittedly governed by custom the land was not liable for his unsecured debts after it had devolved on his sons by succession. But so far as Balbahadur Singh's share in the land was concerned it was held to be liable for payment of the decrial amount because of the previous order dated 22 -10 -2003 dismissing his objections. After recording the statement of the local Patwari and calculating the produce of the land, the executing court by a subsequent order dated 30 -6 -51 leased out the share of Balbahadur Singh, in the land to the decree -holders for 20 years in full satisfaction of the amount due to them including costs. Balbahadur Singh has presented an appeal against these two orders and the decree -holders have also appealed against the order releasing the share of the two judgment -debtors from liability under the decree. 2 S. Balder Singh, the learned Counsel for Bal Bahadur Singh, in his appeal, contends that the prior order of the executing court made on 22 -10 -2006 amounted to one dismissing his objections in default and, therefore -, he was not debarred from raising the same objections again. He further urges that, in any case, his previous petition objecting to the liability of the land before it was actually attached was premature and, therefore, any unfavorable decision thereon was not binding on Bal Bahadur Singh. We, however, do not see any substance in either of these "contentions. The objections of Bal Bahadur Singh were not dismissed in default and the order dated 22 -10 -2006 cannot possibly bear that interpretation. As already observed, the judgment -debtor was granted several adjournments to produce evidence on the issue regarding ancestral nature of the land and the last adjournment was made subject to payment of costs because the process fee to summon his witnesses had not been paid. The concluding portion of the order reads as follows: It appears that the judgment -debtor is merely trying to delay the case. He has even failed to comply with the orders of the court regarding payment of process fee and costs and has even absented himself to -day in the absence of any evidence regarding the issue, which was framed on 28th Assoj, the issue is decided - against the judgment -debtor. Orders for attachment of the land to be issued. if incidentally it was also mentioned that the judgment debtor or his counsel' had not put in his appearance, the order cannot be termed as one for dismissal in default. The order purports to have been made under Order 17 Rule 3, Code of Civil Procedure and was on merits. The first contention of the learned Counsel must, therefore, fall. 3. As regards the second objection, it may be recalled that the method of realization mentioned in the: execution application was 'attachment & sale of movable and immovable property of the judgment -debtor. The property, however, was not specified but on the other hand it was simply stated that a copy of Pard Intikhab relating to agricultural land would subsequently be furnished. Balbahadur Singh in his reply to a notice under Order 21 Rule 22, Code of Civil Procedure 'inter alia' pleaded that the land which the decree -holder wanted to be attached and sold was 'ancestral and, therefore, not liable to be proceeded against in payment of the decrial debt. he executing court regarded this objection pre -mature and therefore, by its order dated 4 -6 -2006 acted the decree -holder to specify the property it which he wanted to proceed and to put in a copy of the Pard Intikhab of the land that was .aired to be attached. When the decree -holders had placed on record the Fard Intikhab and prayed that the land mentioned therein be attached, the court on 28 -6 -2006 framed an issue and called upon the judgment -debtor to prove that the land which was sought to be attached was ancestral 'qua' him. The judgment -debtor failed to prove this issue and his objections were rejected. In view of these facts we do not think the objection can be regarded as premature merely on the ground that attach -ment had not actually been effected. To object to the liability of the land under the decree Bal -bahadursingh might have waited till it was actually attached, but he preferred to join issue with the decree -holders on the point at that stage and got a v. decision against him. The facts of the case relied upon by S. Balder Singh -'Brij Behari Lal v. Phunni Lal', : AIR 1938 All 377 (A) -were totally different. There the decree -holder applied for substitution of the names of the deceased judgment -debtor's sons in the execution application presented by him against the original judgment -debtor under the mistaken belief that he was still alive. The prayer in the execution application was for transfer of the decree to Anr. court where the property of the judgment -debtor was situated. Notices of the application for substitution were served on the sons who were sought to be impleaded. No process of execution was sought by the application of the decree -holder and "the sons were only called upon to object to their being brought on the record as representatives of the deceased judgment -debtor. The sons, however, 'inter alia', challenged the right of the decree -holder to execute the decree against them alleging that the debt which was the foundation of the decree was improper and illegal. The application was fixed for disposal of the substitution matter, but the sons failed to appear and their objections were dismissed. In view of these facts it was held that the objections regarding liability of the sons objection of S.' Balder Singh also must, therefore, be rejected.;