Dave, J. - (1.) THIS is a second appeal by the judgment-debtor in execution proceedings against the order of the learned District Judge, Udaipur, dated 14th August, 1956. The facts giving rise to it are as follows: - One Hazarilal, who is now dead, and respondent No. 2 Bansilal obtained a decree for mandatory injunction form the High Court of Rajasthan on 2nd February, 1950. Both the decree-holders presented an application for execution of the said decree on 4th October, 1951 and another one, on 10th July 1952. During the course of execution proceedings one of the decree-holders, namely, Hazarilal died on 21. 2. 53, and thereafter the proceedings continued with Bansilal alone as a decree-holder on the record. On 17th July, 1953, respondent No. 1 Kanahiyalal presented an application to the effect that he was adopted as a son by deceased Hazarilal decree-holder during his lifetime, that he had also made a will in his favour, that he was Hazarilal's sole legal representative and he should be impleaded in his place. It may be mentioned here that before this application was presented, there was a dispute between the decree-holders and the judgment-debtors about the execution of the decree. The Amin had made a report in favour of the judgment-debtors that the decree was executed, while the decree-holders had made an objection that the report was wrong and that the decree still remained unsatisfied in several particulars. On 13th July, 1953, the executing court came to the conclusion that the decree was not satisfied and it gave certain directions to be carried out by the judgment-debtors to satisfy the terms of the decree. Aggrieved by that order, both Bansilal decree-holder and the judgement debtors filed separate appeals. Kanahiyalal respondent No. 1 was not impleaded as a party in the appellate court and his application in the executing court dated 17. 7. 53 remained undisposed of, since the record of the court below was called by the appellate court. Kanahiyalal presented another application before the appellate court on 12. 1. 55, but it was rejected by that court on the ground that no appeal was filed by Hazarilal. On 28. 4. 55, both the appeals were dismissed by the appellate court, since it was represented by Bansilal decree-holder and the judgment-debtors that they had arrived at a compromise outside the court. When the appellate court returned the record to the executing court, Kanahiyalal presented a second application on 2. 5. 55. It was stated by him that he was Hazarilal's legal representative, that his entire property was in his possession, that the decree in favour of Hazarilal remained unsatisfied and therefore he should be impleaded in his place, and the execution should proceed at his instance. THIS application was opposed by the judgment-debtors and also by Bansilal decree-holder. The executing court recorded the evidence of both the parties and came to the conclusion that Kanahiyalal was not legally adopted by Hazarilal and that Hazarilal was not competent to make a will of his property, since it was coparcenary property. It was further observed by that court; that Kanahiyalal was not the sole legal representative of Hazarilal deceased and on that ground his application was dismissed. Aggrieved by that order dated 21. 4. 56, Kanahiyalal went in appeal. The learned District Judge, Udaipur, who heard the appeal, observed that the appellant was a coparcener along with his brother Bansi Lal, but the fact that Bansilal was already on the record could not deprive Kanahiyalal's right to be brought on record. He, therefore, allowed the appeal, set aside the order of the executing court and ordered the record to be sent back with direction to substitute Kanahiyalal's name also as a decree holder in place of Hazarilal deceased. It is against this order dated 14. 9. 56, that the present appeal has been filed.
(2.) LEARNED counsel for the appellants has urged in the first instance that it was not enough for Kanahiyalal to file an application on 17. 7. 53 or on 12. 5. 55 to be impleaded as the legal representative of Hazarilal deceased and that he should have filed a regular application for execution. In support of his contention learned counsel has referred to Baij Nath vs. Ram Bharos (1 ). It is true that in the above case it was observed by a Full Bench of the Allahabad High Court that "there is no rule of law which enables the legal representative of deceased decree-holder to apply for mere substitution of names and that he must apply, whenever he does apply, for fresh execution, even when his predecessor's application is pending. " This view however docs not seem to have been accepted by other High Courts. It is interesting to point out that the special circumstances in which the view was taken has been explained by the learned Judges of a division bench of the same High Court in Manmohan Dayal vs. Kailash Nath (2) and they have also accepted the view taken by other High Courts viz. Madras, Oudh and Nagpur High Courts in Venkatachalam Chetti vs. Ramaswami Seravi (3), Mahabir Prasad vs. Raja Mohan Manucha (4) and Govind Rao vs. Ganpat Rao (5) respectively. In Venkatachalam Chetti's case (3) it was held that "o. 22, R. 12 simply means that the penalty imposed on the legal representatives of the deceased plaintiff, namely, that; they should come on record to continue the suit within the time allowed by law, dose not attach to execution proceedings in the case of the death of the decree-holder, or in other words, in the case of the death of a decree-holder the execution proceedings do not abate. It does not say that the legal representatives should not be brought on record in the course of execution proceedings. " It was further held that "though O. 22 has no application to execution proceedings, still, by reason of S. 146 and O. 21 R. 16, the legal representative of a decree-holder who dies during the pendency of an execution petition can be substituted in the execution petition and be allowed to continue it. It is not obligatory on him to file a fresh application for execution". I respectfully agree with these observations. As already pointed out above, this view has been accepted even by the learned Judges of the Allahabad High Court in Mohan Dayal's case (2 ). This view has also been followed in Adnacharya Sitaramacharya vs. Narayan Pandurang (6 ). In view of the preponderance of the authorities cited above, I see no force in the objection raised on behalf of the appellants and it is hereby dismissed. Another contention raised by learned counsel for the appellants is that on 2. 5. 55 when respondeat No. 1 filed his application, no execution petition was pending, since Bansilal decree-holder and the appellants had already arrived at a compromise and tack appeals were dismissed by the appellate court. To my mind, there is no force in this contention also, because respondent No. 1 had filed his first application on 17. 7. 53 and it was not disposed of by the executing court. On that day, the execution application of Hazarilal and Bansilal was very much alive, because only 4 days earlier, i. e. on 13. 7. 53 the executing court had passed an order for carrying out the execution of the decree according to the directions mentioned therein. It was no fault of respondent No. 1 if his application could not be decided by the executing court on account of the record having been called by the appellate court. Respondent No. 1 also tried to come on record when the case was pending before the apellate court, but unfortunately the appellate court did not correctly appreciate the position. That is why he had to file a second application on 2. 5. 55 and it was only in continuation of the first one. To my mind, therefore, it cannot be said with any justification that respondent No. 1 did not file his application when the execution proceedings were pending. The second contention is also fit to be dismissed. The last contention raised by learned counsel for the appellants is that respondent No. 1 also is bound by the terms of the compromise entered into by Bansilal. It is contended that Bansilal was the eldest son of Chhogalal, that he was the manager or Karta of the joint family and, therefore, the compromise made by aim was binding upon Kanhaiyalal as well. It would suffice to say that this is a mixed question of law and facts that both the courts below have not yet expressed any opinion on this aspect of the case and, therefore it would not be proper for this Court to decide this point for the first time in second appeal. It is open to the parties to take up this objection before the executing court, which will decide this matter after hearing both the patties and recording their evidence, if necessary. The appeal is, therefore, dismissed with costs in this Court. Respondeat No. 1 has also filed cross-objection, but in view of the fact that decision on point No. 3 has been left open, it is not necessary to decide it. . ;