- (1.) THIS is an appeal by the Superintendent, Court of Wards, in an execution matter, and arises in the following circumstances:
(2.) AN application was presented for execution on the 15th of November, 1949, by one Gendilal. It purported to be on behalf of Raj-Purohit Jagdish Narain, minor son of Raj-Purohit Gokul Narain who was the original decree-holder. The Superintendent of Court of Wards was the guardian of the minor on whose behalf the execution application was filed. It was signed and verified by Gendilal who called himself the Vakil Thikana. At that time, the Jaipur Code of Civil Procedure of 1943 was in force, and Order III, Rule 2 of that Code provided for a class of persons namely Vakils of Thikanas recognised as such by the High Court as recognised agents of parties for purposes of appearances, applications and acting in courts. The executing court seems to have been doubtful of the authority of Shri Gendilal to make the application, and therefore it said on the 16th of December, 1949, that the application did not bear the signature of the Superintendent, Court of Wards, and ordered that it should be put up on the 1st of February, 1950. Though the order does not say in so many words that the defect should be removed, it is obvious that the postponement was granted in order that the defect might be removed. Then we come across the order of the 1st of February, 1950. In that order, it was said that no power of attorney had been filed on behalf of the Court of Wards, and that the case be postponed to the 23rd of March, 1950, as Gendilal wanted time to produce the certificate of recognition as Vakil Thikana. It may be mentioned however that in the meantime the Rajasthan Civil Procedure Code had come into force on the 25th January, 1950, and the Jaipur Civil Procedure Code had come to an end, and the provision relating to Vakil Thikanas did not appear in the Rajasthan Code of Civil Procedure. The matter came before the court on the 23rd of March, 1950. On that day, no power of attorney was produced. Gendilal, however, stated that he was the Vakil of the Thikana and had not received a certificate. Thereupon, the Court ordered that as Gendilal had received no certificate up to the time he made the application for execution, he had no authority to make it and dismissed the application as not being in accordance with law. Thereupon there was an appeal to this Court which came before a learned Single Judge. He ordered remand, particularly as the decree-holder was a minor, and it was represented that there were some documents to show that Gendilal had authority to present the petition on behalf of the minor's guardian namely the Superintendent, Court of Wards. The lower court was ordered to give an opportunity to the decree-holder to satisfy it that the application had been properly made. Thereafter, the case went back to the District Judge, and further evidence documentary and oral was produced. The District Judge has taken that evidence into consideration, and has come to the conclusion that his earlier order was correct, and Gendilal had no authority to present the application for execution on behalf of the minor's guardian, the Superintendent of Court of Wards, and has said that the order of dismissal must stand. The present appeal is against this order of the District Judge. It has first been urged on behalf of the appellant that, under Order 21, Rule 11 (2), it is open to any person proved to the satisfaction of the court to be acquainted with the facts of the case to make an application for execution on behalf of any decree-holder. Reliance in this connection is placed on the words of Sub-rule (2) of Rule 11, which are these : " 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 facts of the case. . . . . . . . . " The rest of the sub-rule is immaterial for our purposes. The contention is that all that Sub-rule (2) requires is that the application for execution should be in writing and should be signed and verified either by the applicant or by some other person who knows the facts of the case. It is urged that Gendilal was the Vakil of the Thikana for a long time, and knew the facts of the case, and therefore he was competent both to sign and verify the execution application, and it was in accordance with law. We must say that this interpretation of Sub-rule (2) comes to us as a shock, because it means that anybody who has got nothing to do with the decree-holder, and has no authority whatsoever from him would be entitled, if this is the meaning of Sub-rule (2), to present an application for execution if he satisfies the court that he knows the facts of the case. This could never have been the intention of the legislature. This meaning is being given because of the comma appearing after the word "writing" in Sub-rule (2 ). If that comma was not there, it would be quite in order to read the word 'signed' appearing after 'writing' along with that word. In that the Sub-rule (2) would have meant that every application for execution of the decree shall be in "writing signed", which means signed by the applicant or his pleader or recognised agent as provided by Order 3, Rule 1. The rest of sub-rule refers to verification and it is this verification which in our opinion, can be made either by the applicant or by some other person proved to the satisfaction of the court to be acquainted with the facts of the case. This is clear if we compare the provisions relating to signing and verification of pleadings. Order 6, Rule 14 provides for signing of pleadings, and the signing is to be done by the party and his pleader if any, or by any person duly authorised by him to sign the same in certain cases when he is himself unable to do so. Then comes Order 6, Rule 15 which provides for verification, and it is here that verification can be done either by the party or by some other person proved to the satisfaction of the court to be acquainted with the facts of the case. The same words appear in Sub-rule (2) of Order 21, Rule 11, and we are of opinion that those words cannot, convey a different meaning. If the comma is removed from after the word "writing", and placed after the word "signed", the word "signed" will have to be read with the word "writing", and the signing would have to be done by the persons mentioned in Order 3, Rule 1. We are confirmed in this opinion by reference to Order 21, Rule 10. It is that rule which provides for an application for execution and lays down that whether the holder of a decree desires to execute it, he shall apply to the court which passed the decree. Therefore, the application for execution has to be made by the holder of the decree. The contention, therefore, of learned counsel for the appellant that Gendilal was competent to sign and present the application for execution simply because he was acquainted with the facts of the case, even though he might not have been authorised to make the application as provided by Order 3, Rule 1 cannot be accepted. We may in this connection refer to a number of cases cited at the bar. The first case is Ganesh Das v. Fatteh Chand, AIR 1920 Lah 122 (A ). In this case, an application had been presented for execution. It was verified by the son of the decree-holder, but the pleader, who was engaged in the case, forgot to sign it. The question then arose whether such an application was in accordance with law and the executing court rejected it. In appeal, the Lahore High Court held that an opportunity should have been given to the pleader to amend the application as provided by Order 21, Rule 17, and allowed the appeal, and remanded the case for action under Order 21, Rule 17. This case, therefore, is no authority for the view that any person acquainted with the facts of the case, even though he has no authority in law to make an application on behalf of the decree-holder can sign it and present it, on his behalf. The next case is Gobind Prasad v. Hriday Thakur, AIR 1925 Pat 692 (B ). The meaning of Order 21, Rule 11 (2) came for consideration in that ease also. In that case it was contended that merely because a person was acquainted with the facts of the case, he was not authorised to sign an application for execution. The learned Judges held that the question was not free from difficulty, and, in the circumstances of that case, left it open as the case was decided on another point. This case however shows that the view contended for by learned counsel for the applicant is not one which is generally accepted. The next case is Raja Ram Gopal Singh v. Harish Chandra Lal, AIR 1936 All 17 (C ). In that case, a question arose whether an earlier application was in accordance with law. That earlier application for execution had been presented by a person who claimed to be the Mukhtaram of the decree-holder, but who failed to produce the Mukhtarnama in spite of being ordered by the court. Thereupon, the earlier execution application was dismissed as not in accordance with law. When that matter came to be considered in the High Court, it was being contended that that dismissal was not correct. The learned Judge however held that that matter could not be reviewed at that time. There are some remarks in the judgment as to the application of Order 21, Rule 11 (2); but as the point involved was different, we are of opinion that these remarks are merely obiter. The last case, to which reference may be made is Appaji Chetti v. Govindasami Reddi, AIr 1937 Mad 760 (D ). There the question of the interpretation of Order 21, Rule 11 (2) arose, and was directly decided. The learned Judge pointed out that Order 21, Rule 11 provides for the form of application for execution, and that the right to apply is given under Order 21, Rule 10 to the decree-holder himself and not to any person acquainted with the facts of the case. We are, if we may say so with respect, in agreement with the view expressed in this case, though we have indicated further reasons why Sub-rule (2) cannot mean that any person acquainted with the facts of the case can sign an application for execution on behalf of the decree-holder. The appellant's case, therefore, that he could sign and present the application for execution because he was acquainted with the facts of the case fails. In the alternative, it has been urged that the applicant was authorised to sign and make the application either because he was a Vakil Thikana and Order 3, Rule 2 (c) of the Jaipur Code of Civil Procedure came to his rescue, or because he held a power of attorney from the Superintendent. Court of Wards, and therefore Order 3, Rule 2 (a) saved his action. So far as the power of the Vakil Thikana under the Jaipur Code of Civil Procedure is concerned, it is enough to say that only those Vakil -Thikanas who were recognised by the High Court as such could act as recognised agents. Gendilal had not been recognised by the High Court as the recognised agent of the minor Jagdish Narain. The fact that he was recognised as the agent of Jag-dish Narain's father Gokul Narain would not make him the agent of Jagdish Narain.
(3.) FURTHER, the fact that an application had been made by the Superintendent, Court of Wards for the recognition of Gendilal would not entitle him to act as if he was a recognised agent for he could only so act if a certificate had been actually granted to him. Therefore the appellant cannot take advantage of any appointment of Gendilal as Vakil Thikana by the Superintendent, Court of Wards. As for the contention that there was a power of attorney, general or special, in favour of Gendilal, it is enough to say that the executing court itself asked for the production of the power of attorney as far bock as 1949, but no such power of attorney was produced. Reliance is placed on a report of some official of the Court of Wards, and the order of the Superintendent, Court of Wards, appointing Gendilal as Vakil Thikana. This document cannot in our opinion, take the place of a duly executed power of attorney, whether general or special. We are, therefore, of opinion that Gendilal could not sign and present the execution application on behalf of the decree-holder because there was no power of attorney appointing him as recognised agent. The appeal, therefore, fails, and is here by dismissed, but in view of the circumstances and the changing times when this application for execution was presented, we order parties to bear costs of the execution proceedings throughout. . ;