- (1.) THIS it a special appeal against the judgment of a learned Judge of this court [see Chimna vs. Chunnilal (1953 R. L. W. 592 ). ] dated 9th of October, 1953,in a second appeal in execution.
(2.) THE brief facts giving rise to it are that the respondents Chunnilal, Bakhtawarmal and five others who were minors, obtained a decree against the appellant Chimna on 18th of March, 1948, for Rs. 3073/7/-on the basis of a mutual compromise. According to that decree, the appellant was to pay a sum of Rs. 700/-on Fagan Sud 11, Svt. 2004 Rs. 1,000/- on Baisakh Sud 15 of the same year and the rest thereafter. It was also provided that in default of the judgment debtor's making the payment on the due dates, the decree-holders would be entitled to recover the entire decretal amount. On the 1st of July, 1940, an application was presented for the execution of the decree. It was stated that Rs. 700/-were received on 2nd of April, 1948, but the second instalment of Rs. 1000/-was not paid in time and, therefore, it was prayed that the judgment-debtor be directed to pay the entire decretal amount. THE judgment-debtor raised an objection that he had gone to the decree-holders' house at Falna on Baisakh Sud 13 and 14 but neither Chunnilal nor Bakhtawarlal was there. THEn he against went on Baisakh Sud 15 with Rs. 1,000/ -. That day also Chunnilal and Bakhtawarlal were not present at their house at Falna and so he went to Khudala. THEre he met Chunnilal and Bakhtawarlal and offered them Rs. 1,000/- but they avoided acceptance of payment by a pretext. Later on he deposited Rs. 1,000/- in the court on 1st of July, 1948. His contention was that the had not failed to keep his promise and so the decree-holders were not entitled to realise the entire amount. THE executing court dismiss-ed the objection. THE judgment-debtor went in appeal to the District Judge, Pali, but he got no success and, therefore, he filed a second appeal in this Court. The second appeal has not been decided on merits but it has been dismissed on a preliminary objection raised by the respondents. The said preliminary objection was that the appellant had impleaded only Chunnilal and Bakhtawarmal as respondents, that the other five decree-holders should have also been impleaded as respondents, since they were necessary parties and that the appeal could not proceed without them. This argument has found favour with the learned Judge and the appeal has been dismissed on that ground. Learned counsel for appellant has urged that although the decree was in favour of seven persons, the execution application was signed and presented only by Bakhtawar Mal and, therefore, it was enough to implead him alone as a respondent in appeal. It is contended that under O. XXXI, r. 15 of the Civil Procedure Code, any one or more of the decree-holders could apply for the execution of the whole decree and since the application was signed by Bakhtawarmal, the appellant thought that the application was presented under the said rule. It is further urged that if Bakhtawarmal could represent other decree-holders in the executing court, he could as will represent them in appeal and, therefore,it was not necessary for the appellant to implead those decree-holders as respondents who had not signed the execution petition. It is pointed out that Chunnilal was impleaded as a respondent because Bakhtawarmal had signed the application as Bakhtawarmal Chunnilal and the appellant though that both of them were signatories to the applica-tion,otherwise, he would not have impleaded even Chunnilal as respondent. Then it is further contended that even if the court considered that other decree-holders should have been brought on the record, it should have proceeded under O. XLI, r. 20 and directed the appellant to implead them as respondents and the appeal should not have been dismissed on such a technical ground. In reply, learned advocate for the respondent, has tried to support the impugned judgment on the ground that although the execution application was not signed by all the decree-holders, they were nevertheless parties to that application because their names were mentioned therein. It is urged that it was not necessary for all the decree-holders to sign the application and simply because it was signed by one of them it could not be said that others were not parties to it. Learned counsel has urged that all the decree-holders were necessary parties, that no order affecting their interest could be passed in their absence, that if all of them were not brought on record there could be a likelihood of conflicting decisions being made in different applications filed by them and, therefore, their non-joinder was fatal to the appeal. Now, in the present case, the application for execution, which was presented on 1st of July, 1940, was in a tabular form. It is not necessary here to give the details of all the columns. It would suffice to say that in the second column, which relates to the names of the parties, (1) Chunnilal (2) Bakhtawarmal (3) Hasti Mal (4) Babu Lal (5) Jivraj (6) Prithviraj and (7) Basti Mal are mentioned as decree-holders and the appellant Chimna is shown as the judgment-debtor. The application is signed as "bakhtawarmal Chunnilal". The main question for determination before this Court is whether the non-joinder of five decree-holders as respondent was fatal to the appeal filed by the judgment-debtor. In order to decide this question, the following further points arise for consideration: - (1) Whether in the case of joint decree-holders, it is necessary that all of them should apply for the execution of the decree, or (2) Whether it is permissible by law for one or more out of several decree-holders to present an application for execution. (3) Whether in case all the decree-holders apply, it is necessary that all of them should sign the application. (4) In case only one or some of the decree-holders make an application whether the rest would also be considered necessary if an appeal is field. The decision of the first two questions rests on the interpretation of rule 15 of Order XXI of the Civil Procedure Code. It runs as follows: - "15. (1) Where a decree has been passed jointly in favour of more persons than one, arty one or more of such persons may, unless the decree imposes any condition to the contrary, apply for the execution of the whole decree for the benefit of them all, or, where any of them has died, for the benefit of survivors and the legal representatives of deceased. (2) Where the Court sees sufficient cause for allowing the decree to be executed on an application made under this rule, it shall make such order as it deems necessary for protecting the interests of the person who have not joined in the application. " A bare perusal of this rule would show that in the case of joint decree-holders, it is not necessary that all of them should apply for the execution of the decree unless the decree itself imposes such a condition. This rule permits that one or more of the decree-holders may apply for the execution of the whole decree, but such an application must be for the benefit of all the decree-holders and if someone of the decree-holders has died, it should be for the benefit of the survivors and the legal representatives of the deceased. This clearly means that although one or more of the decree-holders are permitted to take out the execution of the whole decree, it is not for their benefit alone but for the benefit of all the decree-holders or their legal representatives. Then sub-rule (2) provides that if the court considers that there is sufficient cause to allow execution of the decree on the application of one or more of the decree-holders, then it is incumbent on that court to make such order, as may be proper in the circumstances of the case, for protecting the interests of the persons who have not joined in the application. The answers to points Nos. 1 and 2 would, therefore, be in the negative and in the affirmative respectively subject to the observations made above. Now, coming to point No. 3, it may be pointed out that it is O. XXI, r. 11, sub-rule (2) which lays down in what form an application for execution should be made and how it should be signed and verified. It is reproduced below in order to follow the discussion easily: - "11. (2) Save as otherwise provided by sub-rule (1), every application for the execution of a decree shall be in writing, signed and verified by the applicant or by some other person proved to the satisfaction of the Court to be acquainted with the fact of the case, and shall contain in a tabular from the following particulars, namely: - (a) the number of the suit; (b) the names of the parties; (c) the date of the decree; (d) Whether any appeal has been preferred from the decree; (e) whether any, and (if any) what payment or other adjustment of the matter in controversy has been made between the parties subsequently to the decree; (f) whether any and (if any) what, previous application have been made for the execution of the decree, the dates of such applications and their results; (g) the amount with interest (if any) due upon the decree, or other relief granted thereby, together with particulars of any cross-decree, whether passed before or after the date of the decree sought to be executed; (h) the amount of the costs (if any) awarded; (i) the name of the person against whom execution of the decree is sought; and (j) the mode in which the assistance of the Court is required whether - (i) by the delivery of any property specifically decreed;. (ii) by the attachment and sale, or by the sale without attachment of any property; (iii) by the arrest and detention in prison of any person; (iv) by the appointment of a receiver; (v) otherwise, as the nature of the relief granted may require. It is clear from the language of the said rule that an application for execution made thereunder may be signed and verified either by the applicant himself or by some other person who is proved to the satisfaction of the court to be acquainted with the facts of the case. Thus even if there is a single decree-holder and he makes an application for the execution of the decree, it is not absolutely necessary that it must be signed and verified by him because the law permits that it may be signed by some other person provided it is proved to the satisfaction of the court that such person is acquainted with the facts of the case. The rule does not lay down in clear words whether in the case of joint decree-holders, the application should be signed by one or all of them in case they are all shown as applicants, but when the law allows another person to sign and verify the application on behalf of the decree-holder if the court is satisfied that he is acquainted with the facts of the case, then it follows as a necessary corol-lary that the signatures of all the applicants on the execution petition are not necessary. Those decree-holders whose names are shown among the applicants should be considered parties to the application even though only one or some of them has signed the application. In the case of Mohini Mohan Das vs. Buddan Saha Das (l), three joint-creditors were named as co-plaintiffs in the plaint but it was signed and verified by only one of them namely, Mohini Mohun Das. The suit was considered to be defective by the courts in India. When the matter went up to the Privy Council, it was observed by their Lordships that - "there is no rule providing that a person named as a co-plaintiff is not to be treated as a plaintiff unless he signs and verifies the plaint. " The decrees of the subordinate court and the High Court were reversed and the suit was remanded by their Lordships to be tried on merits. This rule has been consistently followed in Hazari Lal Sahu vs. Ambica Gtr (2), Emil Adolph Zippel vs. K. D. Kapur & Co. (3) and Ladu Lal vs. Mangu (4 ). An application for execution do:s not stand on a higher footing than the suit and, therefore, if such an application is made by certain applicants, then it cannot be said that they are not parties to the application simply because all of them have not signed and verified the petition. We, therefore, agree with the view of the leaned Judge in so far a it lays down that if the execution application is made by all or some of the decree holders, then it is not necessary for all of them to sign and verify the petition In such a case, if an appeal is filed against the decree-holders, all of them would be necessary parties.
(3.) COMING to the fourth point, the question for determination is whether in an application under Order-XXI Rule 15 it would be necessary to implead all the decree-holders as parties in appeal. As stated above, an application under this rule would be considered to be an application only by those persons who have actually made the application even though such an application is made for the benefit of all the decree-holders. This is a special provision which has been made in order that a judgment-debtor may not be harassed by a number of applications for execution against him. When an application is made under this rule, it is the duty of the court, before allowing the execution of the decree to proceed, to see that there is sufficient cause for allowing the decree to be executed on such an application and it must take such steps as may be necessary in the circumstances of the case to protect interests of the persons who have not joined in the application. When this is done, then it would follow that the persons who have made the application represent the interest of all the decree-holders. Under such circumstances, if it becomes necessary at any stage to file an appeal against the order of the executing court in the higher court, then it would not be necessary that all the decree-holders must be impleaded by the party filing the appeal. If the persons filing the application represent the interest of all the decree-holders in the court of execution, there is on reason why they should not represent the other decree-holders in appeal. Of course, if the appellate court thinks that it is necessary to safeguard the interests of other decree-holders, it can and should bring them on the record of the appeal. If there is a danger that the interests of the decree-holders who are not directly parties to the appeal will be affected, then it would only be proper that they should also be ordered to be impleaded; but in case on such order is made, then the mere fact, that a party filing the appeal has hot impleaded them, would not be fatal to the prosecution of the appeal. Now, we have to see whether the application in the present case was made by all the decree-holders or by only some or one of them under Rule 15. It has been held by the learned Judge that the application for execution was made by all the decree-holders. He has not clearly indicated in his judgment as to how he thought that all the decree-holders were parties to the application. It appears that since the names of all the decree-holders were given in column No. 2 and it was signed at the bottom by one of them, he has held that all of them had made the application jointly. In this connection it may be pointed out that the standard from for application for execution of decree as given in Civil Procedure Code, Schedule I, Appendix E at No. 6 begins as follows : - In the Court of. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . decree-holder hereby apply for execution of the decree herein Below set forth : - Then follows the tabular from as required by Order XXI, Rule 11 (2 ). The form then ends as follows : - I. . . . . . . . . . . . . . . . . . . . . . declare that what is stated herein is true to the best of my knowledge and belief. Signed. . . . . . . . . . . . . . . . . . . decree-holders. It would appear from the above form that the applicant or applicants for execution of decree should disclose their names at the space provided in the beginning of the application. If the names of all the decree-holders are shown there, the application would be considered on behalf of the decree-holders even though it may not be signed by all of them. Similarly in a case where the names of all the decree-holders are not given above but the petition is signed by all of them, then too the application would be considered to have been made by all the decree-holders. But if the names of only some of the decree-holders are shown on the top of the application and if the application is also not signed by all of them, then it cannot be said, that it has been made by all the decree-holders. In the application which was filed in the present case, not a single name of the decree-holders was given on the top of the application. At the bottom also, the application was signed only by Bakhtawarmal and by Sri Jaikaran advocate, who was engaged only by Bakhtawarmal. Under the circumstances, it cannot be said that the application was made by all the decree-holders. It appears that since the names of all the decree-holders were shown in Column No. 2 of the form, the learned Judge was led to believe that the application was made by all the decree-holders. In this connection it may be pointed out that this column is not meant giving the names of the applicants for the execution of the decree. It is only provided for showing the names of the parties to the suit, This becomes still clearer from the perusal of form No. 6 referred to above where it is clearly shown that in the second column what is required to be specified is A B.- plaintiff. . . C. D.- Defendant. The first column is meant for the number of the suit in which the decree is passed, the second column is provided for giving the names of the parties in the suit, and the third column is meant for giving the date of the decree. The entire scheme of the form shows that the first three columns are thus meant only for giving those particulars from which the court may come to know that the decree which is sought to be executed was passed in suit number so and so on such and such date and that the parties to that suit were so add so. Then column 4 requires that it should be shown whether any appeal had been preferred from the decree. In column No. 5 it should be shown if any payment or adjustment had been made between the parties after the passing of the decree. Column 6 is meant to show if any previous application for the execution of the decree has been made and if so on what dates and with what results. Column No. 7 requires that the application should show the amount with interest due upon the decree or other relief granted thereby. Column No. 8 is meant for showing the amount of the costs. It is only in column No. 9 that the applicant is required to show the name of the person against whom execution of the decree is sought. This makes it still clearer that if the name of the defendant is given in column No. 2, he is not necessarily a judgment-debtor who is party to the application for execution. The name of the judgment-debtor against whom the execution of the decree is sought must be given in column No. 9. Column No. 10 is then meant to express the mode in which the assistance of the court is required. Thus it is quite clear that simply because the names of the plaintiffs are given in column No. 2, it cannot be said that they are also applicants for the execution of the decree. As stated above, it was not shown in the present application on the top of the tabular form that all the decree-holders were applying for execution. The application was signed only by Bakhtawarmal and, therefore, it cannot be said in any manner that it was made by all the decree-holders. Thus the application having been made and signed only by one of the seven decree-holders, it will be deemed to have been made under O. XXI, r. 15 of the Civil Procedure Code. The executing court ought to have made some order as it might have considered necessary, in the circumstances of the case, for protecting the interest of the persons who had not joined in the application. As no such order was passed it can only lead to the inference that the court was satisfied that no such order was necessary and Bakhtawarmal fully represented all the decree-holders. If Bakhtawarmal represented the interest of all the other decree-holders in the executing court, he could as well represent their interest in the appellate court and it was not at all necessary, in our opinion, for the judgment-debtor to implead other decree-holders as respondents in appeal. It is well settled that for a party filing an appeal, it is generally not incumbent to implead those persons who were not parties in the original suit or application, Bakhtawarmal having himself failed to join other decree-holders as applicants in the executing court, he could not justly raise an objection about their nonjoinder as respondents in appeal. We, therefore, allow the appeal, set aside the order dated 9th of October, i953. The second appeal will again be laid before the learned Judge for decision on merits according to law. . ;