JUDGMENT
Kulwant Sahay, J.
1. This is an appeal on behalf of one Gobind Prasad who was the holder of a decree against the respondents. An application for execution o was filed on his behalf which was signed and verified by his son Bhola Prasad and presented by his Pleader who was duly appointed under a vakalatnama by Gobind Prasad to appear for him in the original suit. The judgment-debtors objected to the execution on two grounds: first, that Bhola Prasad, the son, had no right and authority to sign and verify the application for execution and that one of the judgment-debtors Daro Thakurwas a minor, and he had been wrongly described in the application as an adult. The learned Munsif disallowed the objection; but on appeal the learned District Judge has set aside the order of the Munsif and has allowed the objection of the judgment-debtors and ordered the execution to be dismissed.
2. Against this order the present second appeal has been filed in this Court.
3. The circumstances under which the objection as regards the authority of the son, Bhola Prasad, to sign and verify the application for execution was raised are these:
The decree-holder Gobind Prasad was an old man. On the 27th May 1922 he was coming from Barh to Patna in a train, he was seen at Barh getting into the train but since then he has not been heard of and has disappeared. There is no evidence as to whether he is still alive or dead. The objection of the judgment-debtors is that as it is not proved that Gobind Prasad is dead it must be presumed that he is still alive; and as he is still alive his son Bhola Prasad Who holds no authority from him and is not a recognized agent with any power-of-attorney from Gobind Prasad has no authority to sign and verify the application for execution which under the provisions of Order XXI, Rule 11(2) has to be 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.
4. The learned Munsif held that the son, Bhola Prasad, was authorized to verify the execution petition under Order XXI, Rule 11; that the vakalatnama showed that the decree-holder Gobind Prasad had authorized his Pleaders Babu Abinash Chandra Nandi^and Babu Bishun Chandra Sen to execute the decree; and that the said Pleaders had taken steps to execute the decree by filing the application for execution. He accordingly held that the application filed by the Pleaders and signed and verified by Bhola Prasad could legally be entertained. The learned District Judge, however, has held that although Bhola Prasad might have authority to verify the application under Order XXI, Rule 11, yet under the provisions of the said rule he was not authorised to sign the application. He further held that the Pleader could not sign and present the application without being instructed by the decree-holder to do so. He has accordingly held that the application for execution could not be entertained under the law. In this view of the case he rejected the application for execution without deciding the other question, as regards the minority of one of the judgment-debtors which had been decided in favour of the decree-holder by the Munsif.
5. Now, as regards the proper presentation of the application the law requires that the application for execution of the decree should 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. There can be no doubt that the son Bhola Prasad, if he was proved to the satisfaction of the Court to be acquainted with, the facts of the case, would be authorised to verify the application. It has, however, been contended that he was not authorised to sign the application under the provisions of Order XXI, Rule 11(2). This question is not free from difficulty; but, in my opinion, in the present case it is not necessary to decide as to whether an application for execution t can be signed by any other person proved to the satisfaction of the Court to be acquainted with the facts of the case although such person may have no authority from the decree-holder to sign it. I am of opinion that the Pleaders who were authorised by their vakalatnama filed in the suit to take out execution were authorised to present the application for execution without any fresh authority or instructions from the decree-holder himself. Proceedings in execution are proceedings in continuation of the suit and a fresh authority is not required for a Pleader to appear, act and plead on behalf. of the decree-holder in the execution proceedings if he was so authorised by a vakalatnama in the suit itself. This view has been taken in a number of cases, and I may only refer to the observation of Mookerjee and Carnduff, JJ., in Raghubar Dayal Sukul v. Jadunandan Missir 13 Ind. Cas. 365 : 16 C.W.N. 736 : 15 C.L.J. 89.
6. In the case in which the present decree-holder Gobind Prasad was the decree-holder a similar question arose and a Division Bench of this Court held that the application for execution filed by the Pleader on behalf of Gobind and verified by his son could be entertained in law see Gobind Prasad v. Jagdip Sahay 86 Ind. Cas, 358 : (1925) Pat. 57 : 3 Pat. L.R. 43 : (1925) A.I.R. (Pat) 369 : 4 Pat. 378 : 6 P.L.T. 547. I am in agreement with the observations of the learned Judges made in that case, and as the question raised in this case is exactly similar to that raised in the above case I would decide it in the same manner as that case was decided.
7. I, therefore, hold that the application for execution in the present case could be entertained by the Court below. The order of the District Judge dismissing the execution is, therefore, set aside. The learned District Judge, however, did not decide the objection of the judgment-debtors as regards the minority of Daro Thakur. He will proceed to decide that objection and dispose of the case according to law. Under the peculiar circumstances of the case there will be no order as to costs in the present appeal.
Adami, J.
8. I agree.