U.N. Sinha, J.@mdashThis appeal has been filed by one Kishorilal Rana, who will hereafter be described as Rana. The appeal arises out of an
order passed by the learned Subordinate Judge on the 29th of June, 1961, in Miscellaneous case No. 14 of 1961. An application had been filed
by Rana in Execution Case No. 41 of 1959, under the provisions of Section 151 of the Code of Civil Procedure, which was numbered as
Miscellaneous case No. 14 of 1961. That application has been dismissed by the learned judge, the result of which is that Execution Case No. 41
of 1959 will proceed.
2. The facts given below represent the substance of certain connected cases, in which the appellant, Rana, and the respondent, namely, Bharat
Nidhi Limited, were concerned. Bharat Nidhi Limited will hereafter be referred to as the Bank. On the 28th of May, 1946, the Bank had obtained
a money decree against Rana, in Money Suit No. 1 of 1946, in the Court of the Subordinate Judge of Hazaribagh, On the 25th of January, 1952,
the Bank started Execution case No. 2 of 1952, to execute the decree passed in that money suit. On the 12th of August, 1955, ''Rana had
obtained a money decree against the State of Bihar, in Money Suit No. 12 of 1950, in the Court of the first Additional Subordinate Judge of
Hazaribagh. The decree was for about a sum of Rs. 41000/-. In the same year, in Execution Case No. 2 of 1952, an amount of Rs. 9368/14/3
was attached by the Subordinate Judge, under Order 21, Rule 53 of the Code of Civil Procedure, out of the decree passed in Money Suit No. 12
of 1950. Ultimately, on the 28th of August, 1958, Execution Case No. 2 of 1952 was dismissed by the Court, keeping the attachment made
earlier alive. It appears that by the order dated the 28th of August, the Bank, was permitted to execute the decree passed in Money Suit No. 12 of
1950, for the realisation of its dues. In the meantime, on the 25th of November, 1955, the State of Bihar had filed an appeal in this Court against
the decree passed in Money Suit No. 12 of 1950. This appeal was numbered as F. A. No. 516 of 1955. A cross-objection had been filed in that
appeal by Rana. Thereafter, on the 29th of August, 1959, the Bank filed Execution Case No. 41 of 1959, under the provisions of Order 21, Rule
53 of the Code of Civil Procedure. The application was for executing the attached decree for the realisation of Rs. 9368/14/3. It may be
mentioned here that Execution case No. 41 of 1959 had to be started in the Court of the Subordinate Judge, Hazaribagh, as the Court of the first
Additional Subordinate Judge, Hazaribagh, was then no longer in existence. To this application for execution, the appellant objected on the ground
that the Bank''s execution was barred by limitation, as the execution case was hit by the provisions of Section 48 of the Code of Civil Procedure.
This point has been decided by the learned Subordinate Judge against the appellant.
3. Learned counsel for the appellant has contended that as the Bank had instituted Execution Case No. 41 of 1959 on the 29th of August, 1959,
in effect, to execute its own decree dated the 28th of May, 1946, passed in Money Suit No. 1 of 1946, the execution case was not maintainable in
view of Section 48 of the Code of Civil Procedure. That is to say, it is urged that the application filed on the 29th of August was a fresh
application, really to execute the decree passed in Money Suit No. 1 of 1946, and as the application for execution was filed beyond twelve years
of the 28th of May, 1946, the application was barred by limitation. According to the learned counsel for the appellant, a decree-holder can
execute his decree in various ways u/s 51 of the Code of Civil Procedure. Reliance is placed on Section 51, Clause (e), which says, that the Court
may, on the application of the decree-holder, order execution of the decree ""in such other manner as the nature of the relief granted may require.
It is argued that under the provisions of this clause, in an appropriate case, a decree-holder takes steps under Order 21, Rule 53 of the Code of
Civil Procedure. Thus, according to learned counsel for the appellant, the Bank was really executing the decree passed in its favour on the 28th of
May, 1956, by proceeding under Order 21, Rule 53. The Bank was, therefore, executing its own decree although it was by the attachment of the
decree passed on the 12th of August, 1955 in Money Suit No. 12 of 1950. But, it is urged, that nonetheless the execution was of the Bank''s
decree of the year 1946. According to learned counsel, therefore, the application filed on the 29th of August, 1959, was beyond twelve years
from the decree passed in Money Suit No. 1 of 1946, and, therefore, Execution Case No. 41 of 1959 is barred by limitation, provided by Section
48 of the Code of Civil Procedure. For the reasons given below. I am of the opinion that the contention raised by learned counsel for the appellant
must be rejected. In this case, the Bank is really proceeding under the provisions of Order 21, Rule 53, Sub-rules (2) and (3) which read thus:
(2) Where a Court makes an order under Clause (a) of Sub-rule (1), or receives an application under sub-head (ii) of Clause (b) of the said sub-
rule, it shall, on the application of the creditor who has attached the decree or his judgment debtor, proceed to execute the attached decree and
apply the net proceeds in satisfaction of the decree sought to be executed.
3. The holder of a decree sought to be executed by the attachment of another decree of the nature specified in Sub-rule (1) shall be deemed to be
the representative of the holder of the attached decree and to be entitled to execute such attached decree in any manner lawful for the holder
thereof."" The Bank, being the holder of the decree passed in Money Suit No. 1 of 1946, shall be deemed to be the representative of the holder of
the attached decree, that is to say of the appellant. Under Sub-rule (3), the Bank is entitled to execute the attached decree in any manner lawful for
the holder thereof, that is to say, again, the appellant. It appears to me, that in the circumstances, the appellant cannot plead the bar of Section 48
of the Code of Civil Procedure, on the ground that the application filed on the 29th of August, 1959, was beyond twelve years of the passing of
the decree in Money Suit No. 1 of 1946. A similar point had arisen in the case of Firm Rambux Mal v. Firm Mansaram Murlidhar AIR 1947 All
174. Learned counsel has contended that in the decision of the Allahabad High Court, no reference had been made to Section 51 of the Code of
Civil Procedure; and, therefore, the view taken by the Allahabad High Court ought not to be followed. For his own contention based on Section
51 of the Code of Civil Procedure, learned Counsel for the appellant has relied upon the decision in Pirthi Raj Ganesh Das Vs. Balmakund
Marwari, . The interpretation of Section 51 in general and Clause (e) of that section in particular, as argued by learned counsel, is beyond
controversy, but, in my opinion, it is not possible to accede to the contention that the application giving rise to Execution case No. 41 of 1959 was
a fresh application for the execution of the decree passed in Money Suit No. 1 of 1946, on the 28th of May, 1946. In my opinion, the decision of
their Lordships of the Allahabad High Court supplies the correct answer to the question that has arisen in this case. I respectfully agree with their
Lordships of the Allahabad High Court for the conclusion that Section 48 cannot be imported in this case, for the purpose of dismissing Execution
Case No. 41 of 1959.
4. Considerable arguments were advanced by the learned counsel for the parties upon the wordings of an order dated the 28th of August, 1958,
passed in Execution Case No. 2 of 1952, to which the learned counsel for the appellant has referred. According to the learned counsel for the
appellant, Execution Case No. 2 of 1952 was dismissed and finally disposed of on the 28th of August, and the present application filed on the 29th
of August, 1959, is a fresh application for executing the decree passed in Money Suit No. 1 of 1946. According to the learned Counsel for the
Bank, that order was merely a routine order relegating Execution Case No. 2 of 1952 to the record room, permitting the Bank to proceed with the
execution of the decree passed in Money Suit No. 12 of 1950. I am in agreement with the submissions made by the learned counsel for the Bank
in this respect. In Execution Case No. 2 of 1952 an order of attachment of the decree passed in Money Suit No. 12 of 1950 had been made on
the 8th of September, 1955, and that attachment was permitted to continue for the purpose of executing the decree passed in Money Suit No. 12
of 1950. The application filed on the 29th of August, 1959, cannot, therefore, be taken to be a fresh application for executing the decree passed in
Money Suit No. 1 of 1946.
5. I have then been asked by the learned counsel for the appellant to take note of certain further facts for coming to the conclusion that Execution
Case No. 41 of 1959 should be dismissed at this stage. As indicated above, First Appeal No. 516 of 1955 had been filed by the State of Bihar in
this Court, arising out of the decree passed in Money Suit No. 12 of 1950. By the judgment and the decree passed by this Court, on the 19th of
September, 1961, the appeal has been substantially allowed. The cross-objection filed by Rana has also been allowed, with the result that a fresh
decree has been drawn up by this Court to the tune of about Rs. 29000. It is, therefore, contended that the decree passed originally in Money Suit
No. 12 of 1950 is now non-existent and, therefore, Execution Case No. 41 of 1959 must be dismissed as infructuous. In my opinion, this point
should not be decided at this stage on the facts mentioned above, as there is no bar to the appellant taking this objection in the execution case
itself, where the point may be agitated between the parties. Some other facts have also been mentioned in this Court, to the effect that the appellant
has started execution of the decree passed in his favour by his Court, in Execution Case No. 9 of 1962. My attention has been further drawn to an
order passed by this Court in Miscellaneous Judicial Case No. 1189 of 1962, on the 7th of November, 1962. All these matters may be
considered if and when an objection to the execution of the original decree passed in Money Suit No. 12 of 1950 is taken in the appropriate Court
in future. In my opinion, the appeal must fail on the question raised by learned Counsel for the appellant; and it is dismissed without costs.
6. Learned counsel for the respondent has raised a preliminary objection to the effect that no appeal lay in this Court, inasmuch as the order under
appeal was passed on an application filed by the appellant under the provisions of Section 151 of the Code of Civil Procedure. It is also
contended that the appellant was not a party to Execution Case No. 41 of 1959; and, therefore, he had no right to come up to this Court in
appeal. On the first point taken by learned counsel for the respondent in this context he has relied upon the decision of Ramnandan Pandey and
Others Vs. Jagarnath Rai, . In my opinion, the preliminary objections taken by learned counsel for the respondent are of no force. It is clear
beyond doubt that the appellant was a party to the proceeding numbered as Execution Case No. 41 of 1959. In the application filed by the Bank
under the heading ""names of parties"", the name of Rana was specifically mentioned, along with the name of the Bank described as the decree-
holder attaching creditor. In any event, it appears to me that under the provisions of Order 21, Rule 53, Sub-rule (5), the holder of the attached
decree was before the Court executing the decree and, therefore, it cannot be held that he was a stranger to the proceeding in the Court below.
Although the application filed by Rana was u/s 151 of the Code of Civil Procedure, the objection taken by him was really one covered by Section
47 of the Code of Civil Procedure. The objection was in relation to the execution of a decree, which was urged to be the execution of the decree
passed in Money Suit No. 1 of 1946. The order passed by the learned Subordinate Judge is, therefore, an appealable order. Furthermore, no
objection had been taken before the learned Subordinate Judge that the appellant had no locus standi to apply before the Court for relief. The
preliminary objections are, therefore rejected.