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Judgment
Prafulla C. Pant, J.—Civil Revision No. 36 of 2001 (old No. 418 of 1995) is directed against the order dated 05.08.1995, passed by the executing court (Civil Judge (Sr. Division), Dehradun) in Execution Case No. 43 of 1989; and Civil Revision No. 252 of 2001 (old No. 510 of 1995) is directed against the order dated 27.09.1995, passed by the executing court (Civil Judge (Sr. Division), Dehradun) in Misc. Case No. 267 of 1990. These two revisions are connected with each other and are being disposed of by this common judgment and order.
Heard learned Counsel for the parties and perused the record.
Brief facts, giving rise to these revisions, are that M/s Cooper Engineering Limited (plaintiff / decree holder) instituted a suit No. 56 of 1975, before Civil Judge (Senior Division), Satara, Maharashtra, in which a compromise decree was passed on 16th of August 1978. It appears that the decree was transferred for execution to the court at Dehradun, where the application was moved for execution on 6th of November 1989 (which was registered as Execution Case No. 43 of 1989). In the execution proceedings objections 46-C were moved on behalf of the revisionist / judgment debtor challenging the execution on the ground that u/s 42(4) of the Code of Civil Procedure, 1908 (for brevity hereinafter referred as the Code), the execution is not maintainable by the assignee Ashok Kumar. The executing court heard learned Counsel for the parties, and vide impugned order dated 05.08.1995, dismissed the objections. It further allowed the application 34-C of the decree holder to delete name of the revisionist / judgment debtor No. 2 H.H. Maharaja Virendra Singh N. Chauhan.
In Misc. Case No. 267 of 1990, which was registered on the application of H.H. Maharaja Virendra Singh N. Chauhan (judgment debtor), praying for staying of the execution, was also rejected by the impugned order dated 22.07.1995, by the executing court, after hearing the parties.
Section 42 of the Code empowers a court to execute a decree sent to it by the court which passed the decree. Sub-section (4) of Section 42 provides that nothing in the section shall be deemed to confer on the court to which a decree is sent for execution to order execution at the instance of transferee of the decree. Learned Counsel for the revisionists argued that Ashok Kumar is the assignee of the decree, and as such, cannot move an application to get executed the decree passed by Satara court, by moving an application at Dehradun.
I have perused the copy of the execution application which clearly shows that the execution application has been moved on behalf of the decree holder Cooper Engineering Limited which has been amalgamated into Walchand Nagar Industries Ltd. through Ashok Kumar and Subhash Kumar. Rule 11(2) of Order XXI of the Code permits that written application for execution of a decree can be filed by the applicant or any person authorized on its behalf. Unless, original decree holder challenges that the person authorized has not signed an application, judgment debtor cannot get the execution of the decree held up on said ground, particularly, when there is nothing on the record to show that the execution application is not filed on behalf of the original decree holder.
Learned Counsel for the revisionist drew attention of this Court to Rule 16 of Order XXI of the Code, which permits the transferee of the decree to move an application for execution before the court which passed the decree. In the present case, the said provision is not attracted, as the application for execution in question has been moved on behalf of the original decree holder and the assignee. It has rightly been observed by the executing court that original decree holder Cooper Engineering Limited which has been amalgamated into Walchand Nagar Industries Limited has moved the application before it, with the assignee. This Court does not find any error of law committed by the executing court in dismissing the objection of the judgment debtor (revisionist). Apart from this, on application 34-C moved on behalf of the decree holder name of revisionist (who was one of the legal representatives of the original judgment debtor) has been sought to be scored off from the execution application, and the same has already been allowed, as such, otherwise also the decree holder has shown inclination not to proceed against the revisionist in the execution.
Also, this Court does not find any error of law committed by the executing court in rejecting the application which was registered as Misc. Case No. 467 of 1990, moved by the revisionist H.H. Maharaja Virendra Singh N. Chauhan (since deceased) to stay the execution after his objections u/s 47 of the Code are rejected vide order dated 05.08.1995. 9. For the reasons as discussed above, both these revisions are liable to be dismissed. The same are dismissed. No order as to costs.