Sharma, J. - (1.) Core questions which arise for consideration in the revision is whether in the case of joint decree holders, is it permissible by law for one, or more out of several decree holders to present an application for execution, and should a decree for partition be engrossed on stamp paper?
(2.) These questions have emerged in the following circumstances : BACK GROUND FACTS (i) One Shri Ahmed All expired leaving behind him three sons, namely, Mohd. Ali, Iftikar Ali and Shaukat Ali. The property in dispute belonged to Late Shri Ahmed Ali. Shaukat Ali, after the death of Ahmed All, instituted a suit for partition of the property against Mohd. Ali and Iftikar Ali, which was decreed on 3.3.1971. (ii) Mohd. Ali thereafter, expired. Smt. Mehbubunnisa, petitioner, applied for the execution of the partition decree on or about 19/23.8.1980, claiming her the legal representative of late Mohd. Ali, as Smt. Afifunissa wife of late Mohd. Ali, had also expired and she being the daughter of late Mohd. Ali, was entitled to obtain possession of the property which came to her share. (iii) In the execution petition mentioned hereinabove, Iftikar Ali raised objection that late Mohd. Ali in whose favour the partition decree existed, had also left other legal representatives who were necessary parties to the execution petition and without, joining them the execution petition could not have been proceeded with. It was also objected that decree for partition was not engrossed on non-judicial stamp paper therefore, it could not have been executed. The petitioner moved an application on 26.2.1981 seeking permission of the executing Court to produce necessary non-judicial stamp papers. (iv) The petitioner moved another application under section 151, read with O.6 R. 17 and O.21, R. 17 CPC, in order to obviate the objections with a request for amending the execution application to the effect that the other legal heirs of late Mohd. Ali, such as his son and daughter are not prepared to be made a party and, hence the execution application may be executed for the benefit of and for protecting the interest of even those persons who have not joined in the application. (v) The executing Court allowed the amendment application vide its order dated 24.3.1984. Iftikar Ali's legal representatives challenged the said order by filing a revision before this Court. While allowing the revision, this Court on 4.8.1986 observed as under:- "However, the application for amendment is not being disallowed on the ground that a fresh application has become barred by time, because, this bridge will have to be crossed by the decree holder only when this objection is raised. It will depend upon whether an execution application moved only by one of the joint decree holders can be of any use to the decree holder in saving limitation." (vi) The petitioner, therefore, moved another application before the executing Court u/O. 21 Rr. 15 & 16 CPC on 15.5.1987 wherein it was stated that the execution application filed by her was for the benefit of all and for protecting even the interest of those persons who were not joined in the execution petition. In the reply to the said application it was submitted that nothing remained to be decided as the matter stood finally adjudicated by the High Court. It was also objected that award was neither passed on stamp paper nor it was registered and thus it was not executable. It was again repeated that the execution petition was not maintainable as other legal representatives of late Mohd. Ali were not impleaded in the execution petition. (vii) The executing Court vide its order dated 3.2.1988 dismissed the execution as not maintainable. Against the said order, present action for filing the revision has been resorted to. STATUTORY BACKGROUND
(3.) Before adverting to the rival contentions raised before me it is necessary to examine the provisions of O.21 R.(15) CPC, which runs as follows : "15. Application for execution by joint decree holder - (1) Where a decree has been passed jointly in favour of more persons than one, anyone 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 the survivors and the legal representatives of the deceased. (2). Where the Court sees sufficient cause for allowing the decree to the executed on an application made under this rule, it shall make such order as it deems necessary for protecting the interest of the persons who have not joined in the application.";