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Changa Mal And Ors. vs Chaubey Ram-Dulare Lal

High Court Of Judicature at Allahabad|28 February, 1933


JUDGMENT Sulaiman, C.J.
1. This is a judgment-debtor's appeal from an order refusing to set aside a sale during the pendency of the appeal. The appellants-judgment-debtors became insolvents and a receiver was appointed to their estate. An application was made on behalf of the respondents under Order 22, Rule 8, Sub-rule (1) calling upon the receiver to furnish security for the cost of the appeal. The' alternative prayer contained in the application is that the appeal should be dismissed. The learned advocates for the appellants has urged that Order 22, Rule 8 has no application to this case, because this is an appeal arising out of execution proceedings and is therefore exempted by virtue of Rule 12 of that order. His contention is that if the proceedings originally were in execution, then Rule 12 would apply even to appeals from orders arising, out of these proceedings.
2. There is no doubt some authority in support of this contention. In the case of Mir Khan v. Sharfu A.I.R. 1923 Lah 560 it was held by a learned Judge of the Lahore High Court that Rules 3 and 4 of Order 22 had no application to an appeal arising out of execution proceedings by virtue of the provisions of Rule 12 of that order. It appears that the majority of the Full Bench of the Patna High Court in Hakeem Syed v. Fateh Bahadur A.I.R. 1929 Pat. 565 has taken the same view. One learned Judge however took the contrary view. On the other hand there is a judgment of a Bench of the Madras High Court in the case of Sundayee Animal v. Krishan Chetti A.I.R. 1928 Mad 772 which does not appear to have been cited before the learned Judges of the Patna High Court and in which it was held that in the Letters Patent appeal against an order in execution of a decree, the legal representative of the deceased appellant can be brought on record for proceeding with the appeal. By virtue of the provisions in Rule 11, Rule 8 would apply to appeals just as much as to suits. Rule 12 provides: "Nothing in Rules 3 and 8 shall apply to proceedings in execution of a decree or order."
3. Fresh applications for execution, unless the principle of res judicata applies, can be made from time to time so long as limitation has not expired. It is therefore obvious why there need be no abatement of the suit in an execution proceeding. But an appeal stands on quite a different footing. Successive appeals cannot be filed, if one has already abated. It seems to us that Rule 12 does not contemplate that if an appeal has been preferred from an order in execution, then also Rules 3, 4 and 8 would never apply. If this were the correct view, the result would be that the death of the appellants or of the respondents would in no way result in the abatement of the appeal at all. We are of opinion that Rule 12 would not exempt pending appeals even though they arise out of execution proceedings. We think that Rule 8 applies to this appeal.
4. There is another difficulty in the way of the appellants. Strictly speaking the order passed by the Court below was not an order passed by an execution Court in the ordinary sense of the word which would amount to a decree, but it was an appealable order, which if passed by a Munsif or a Subordinate Judge would not be open to a second appeal. With great respect to the learned Judges of the Lahore and Patna High Courts we are unable to accept their view that Rules 3, 4 and 8 cannot apply to a pending appeal of this kind. The receiver, as stated above, has declined to furnish security. The appeal must accordingly be dismissed with costs which may be recovered as a debt against the estate of the original appellants.
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Changa Mal And Ors. vs Chaubey Ram-Dulare Lal


High Court Of Judicature at Allahabad

28 February, 1933