1. ' The appellant has challenged in this appeal the order passed by First Senior Civil Judge, Hyderabad dated 8-2-1979 in Execution No, 9-A/58 rejecting the objections filed by the appellant and allowing the execution of respondent/Decree-holder. The facts material to this appeal are as follows :- ' On 15-11-1948 an agreement of sale was entered into between the predecessor-in-title of the respondents, namely Seth Hussaini (whom I will hereafter refer as 'Hussaini') and the predecessor- in-title of the appellant Shrimati Hiran Bai (who will hereinafter be described as `Hiran Bai') in respect of agricultural land consisting of bungalow and garden measuring about 405 acres and 4 ghuntas situated in Dehs Hatri and Mirzanpur, Taluka and District Hyderabad. As the agreement of sale was not fulfilled by Hiran Bai a suit was filed by Hussaini on 24th February, 1949 which was decreed ex parte on 21-12-1949. Execution application No, 3/51 was thereafter filed by the respondents on 13-12-1951 but this execution application was dismissed on 2-3-1955 for non- prosecution. On 3-2-1958 another execution application was filed by the respondents which was registered as Execution Application No, 9-A/58. This execution application was also dismissed on 30th January, 1959 for non-prosecution ; however on an application dated 3-2-1959 filed by the respondents for restoration it was restored on 27-8-1959. This execution application thereafter remained pending for a long time as the land which was subject-matter of the execution, was in the meantime treated as an evacuee property. The dispute with regard to evacuee nature of the property was settled finally by the order of this Court passed in Writ Petition No, 918/58 on 10-5-1961, holding the property as non-evacuee. After decision of the dispute concerning the nature of the property the respondents applied to the Court on 24-5-1961 for execution of the decree against Hiran Bai to which objections were filed by Hiran Bai but these objections were dismissed by the executing Court on 15-7-1961. Against the order of executing Court rejecting the objections of Hiran Bai first appeal was filed in this Court being No, 177/61 and it appears that while this appeal still pending Hiran Bai died. After the demise of Hiran Bai the present appellant sought substitution of his name as the sole legal heir of Hiran Bai in appeal No, 177 of 1961 which was allowed on 14-10- 1964 and the name of appellant was brought on record in the appeal as the sole legal representative of Hiran Bai. The above appeal came to be dismissed on 11-5-1966 and the order of executing Court wasupheld. Against the order of this Court dismissing the appeal of Hiran Bai a further appeal to Supreme Court also failed when it was dismissed on 12-9-1974. It appears that after dismissal of the appeal by the Supreme Court notices were issued by the executing Court to the respondents/Decree-holders and on 4-11-1976 an order dismissing the execution application for non-prosecution was passed. It is contended by the learned counsel for the appellant that this order of dismissal passed by the executing Court was made on the execution application bearing No, 9-A/58, whereas the learned counsel for the respondents/Decree-holders contends that this order could not have been passed on execution application No, 9-A/58 as by that time the record of execution No, 9-A/58 was not received by the executing Court from the Supreme Court. The certified copy of the order of executing Court shows that it was passed in relation to the execution application No, 3 of 1951 and it is clear from the letter dated 6th April, 1978 sent by this Court to the first class Civil Judge, Hyderabad, forwarding the R & P of execution No, 9-A/58 in Suit No, 11/1948 that Court, that until than the R & P of Execution No, 9-A/58 was lying in this Court. I, therefore, feel no difficulty in arriving at the conclusion that the order dated 4-11-1976 passed by the executing Court dismissing the execution application could not have been passed with regard to execution application No, 9-A/58, R & P whereof was forwarded to the Court of Civil Judge only on 6th April, 1978 by this Court. It is admitted before me by the learned counsel for the appellant that the notices issued by the executing Court after the order of the Supreme Court directing the respondents/Decree holders to appear in the Court were returned unserved by the process-server with the endorsement that the Decree holders are residing in Karachi and that no effect was made to serve the Decree holders at their Karachi address or by substituted means on their last known addresses. In these circumstances it was not open to the executing Court to dismiss the execution application for non-prosecution without first serving the Decree holders properly in the case. Be that as it may the positions that the respondents on 10-9-1977 filed a Misc. Application before the executing Court under section 151, C. P. C. Praying that the execution be issued against the appellant. This application was duly served on the appellant and objections were also filed in the execution case by the appellant. The objections filed by the appellant were rejected by the executing Court on 8-2-1979 and respondents were directed to file a fresh draft of sale-deed and this order is now impugned in this appeal.
2. ' I have heard Mr. Jhemat. Jethanand and Mr. Haider Ali Pirzada, the learned counsel for the appellant and Mr. S. M. Sadiq, the learned counsel for the respondent/Decree-holder in this appeal.
3. The learned counsel for the appellant/Judgment-Debtor has raised the following contentions before me :-
(1) That there was no pending execution application before the executing Court on which notices could be issued to the appellant as the execution application if any was dismissed for non- prosecution on 4-11-1976.
(2) That the prayer both in the suit as well as in the execution application was for execution of the sale-deed dated 21-12-1948 and, therefore, by allowing execution application with a direction that the plaintiff/Decreeholders may submit a fresh draft of 'sale-deed, the executing Court varied the terms of the decree which was beyond his competence.
(3) That the execution application was beyond time and, therefore, no execution could be issued.
4. ' In addition to the above points which were raised by Mr. Jhemat Jethanand, who appeared for the appellant in the first instance when the appeal was heard, two additional points were also urged by Mr. Haider All Pirzada, who appeared and argued the case on behalf of appellant/Judgment- Debtor at subsequent stage. The additional points urged by Mr. Haider Ali Pirzada, are as follows :-
(1) That the notice of execution application as required under section 50 and rule 22 of Order XXI, C.
5. P. C. Was never served on the L. Rs, of Hiran Bai and the execution proceedings was wrongly continued and proceeded against a dead person.
(2) That about 33 acres of land out of the total area sold having been acquired under M. L. R. 115 the decree passed by the trial Court stood frustrated and, therefore, could not be executed.
6. ' I propose to deal with the point of limitation raised by Mr. Hemat Jethanand, first as in the event of success of appellant on this point it may not be necessary to examine other contentions raised on his behalf. This objection of the learned counsel is based on the ground that the endorsement of presentation of the execution application dated 3-2-1958 made by the C. M.
0. Of the Civil Court is illegal. Reliance in this connection is made by the learned counsel on rules 31 and 32 of Sind Civil Courts Rules. It is attempted to urge by the learned counsel that the endorsement dated 3-2-1958 is in fact a managed affair as in the normal course the execution application should have been presented before the execution clerk who would have entered the same in the execution register. Much stress is laid by the learned counsel on the serial No, 9-A assigned to the execution and attempt was made during the course of argument to create a doubt as to the authenticity of entry made in the register of execution. The contention raised by the learned counsel is however devoid of any merit. It may be mentioned here that execution application No, 9-A/58 was filed as late as on 3-2-19)8 when the original Judgment-Debtor Hiran Bai was alive. She was duly served with the notice of this execution application and also filed objections thereto and after rejection of her objection she took the matter in appeal to this Court and thereafter the present appellant took the matter to Supreme Court. It is quite surprising that Hiran Bai during her lifetime did not raist any such objection either in the execution proceedings or in the first appeal filed before this Court against the order of executing Court. The present appellant who was substituted in the appeal before this Court after the demise of Hiran Bai also did not raise any such objection either in the Appeal No, 177 of 1973 or before the Supreme Court or even before the executing Court after remand of the case to the executing Court. These objections also do not find place in the present memo. Of appeal filed before this Court by the appellant in 1979. These objections are raised for the first time after about 23 years of the filing of execution application and after the demise of original Judgment-Debtor during the Course of argument of this appeal and are therefore clearly an afterthought A and the sole object appears to be delay and protract the proceedings. These objections are therefore liable to be disallowed for these reasons alone.
7. However, at the instance of learned counsel for the appellant I have looked into the original file of Execution No, 9-A/58 and found that the endorsement of presentation made thereon appears to have been made in the normal and ordinary course of business and the learned counsel for the appellant was unable to point out anything in the endorsement which could make it appear suspicious or doubtful in nature. The further contention of the learned counsel that C. M.
0. Was not authorised to accept the presentation of execution application has equally no force.
8. Under rule 30 of Sind Civil Courts Rules the C. M.
0. Amongst other duties, performs the act of receiving plaints, applications and appeals and cancels Court fee stamps. The execution clerk who enters the application in Execution Register performs his duties under the supervision of C. M. O. In this view of the matter the presentation of execution application to C. M. O. And cancellation of stamps thereon on 3-2-1958 was perfectly in order and legal. It is conceded by the learned counsel for the appellant that the execution application if validly presented on 3-2-1958 was within time. As I have reached the conclusion that the presentation of execution application on 3-2-1958 was valid and in accordance with the law. I accordingly hold that the execution application was presented within time.
9. ' The next contention of the learned counsel for the appellant is that no notice of execution could be issued to the appellant as there was no pending execution application before the Court on the day the order for execution was issued. I have already held while narrating the facts that the order of dismissal of execution application passed on 4-11-1976 was in respect of execution No, 3/51 as on that date the file of Execution No, 9-A/58 was not received by the executing Court from the Supreme Court and no notice of this execution application was issued to respondents/Decree- holders. I am, therefore, unable to agree with the learned counsel that there was no execution pending before the executing Court when notice was issued to appellant.
10. ' The next contention of the learned counsel is that the prayer in the suit as well as in the execution application was for execution of the sale-deed dated 21-12-1948 by the Vendor which prayer could not be given effect to in view of the charged circumstances of the case. It is contended that sale deed dated 21-12-1948 could not be executed and registered now firstly as it was executed on a stamp paper which was more than six months old and could not be presented for registration and secondly the sale-deed showed Hiran Bai as the Vendor who was no more alive. The contentions raised by the learned counsel are too technical and have not impressed me at all. The suit filed by Hussaini was for specific performance of an agreement of the sale executed by Hiran Bai in his favour on 15-11-1948. The prayer clause of the suit was to the following effects :- "17. That the plaintiff prays for the following reliefs :-
(a) That a decree for specific performance of the agreement of sale dated 15th November, 1948 may be passed in favour of the plaintiff as against the defendant to the effect that, the defendants should get the same dated 21st December, 1948 executed and registered in favour of the plaintiff by way of specific performance of the contract of sale and for the possession of the property in suit. The said sale-deed is attached to the plaint.
(b) That a permanent injunction may be issued against the defendant not to sell by herself or through her agent or attorney the property in suit to Mubarak Ali Shah or any other purchaser except the plaintiff in accordance with the terms of the agreement dated 15th November, 1948.
(c) That in the alternative the Court will be pleased to grant damages amounting to Rs, 55,000 besides the return of the earnest money.
(d) Cost of this suit may be awarded from the defendent to the plaintiff,
(e) Any other relief which this hon'ble Court may be fit and proper for the plaintiffs's benefit."
11. ' Although in the decree the defendant/Judgment-Debtor was directed to execute the sale-deed dated 21-12-1948 but this direction was given by the Court while decreeing the suit for specific performanee of the contract of sale dated 15-11-1948 which was earlier entered into between the parties. The foundation and basis of the suit for specific performance was the contract of sale entered into between Hussaini and Hiran Bai on 15-11-1948 and decree in the suit was passed to give effect to this prayer in the suit. It is an admitted position that Hiran Bai was alive when the suit for specific performance was decreed but at the time of issuance of execution she was dead and, therefore, it was necessary on these circumstances to amend the sale-deed dated 21-2-1948 accordingly, by bringing the names of the L. R. Of Hiran Bai in the sale-deed. Similarly it is common ground between the parties that the stamps papers on which the sale-deed dated 21-12-1948 was made out is now out of date and could not be presented for registration. It is also conceded that the stamps duty paid on the sale-deed dated 12-12-1948 is no more proper fee because of the charge in the rate of stamp duty payable on sale-deeds. In these circumstances, the direction of the executing Court to decree-holder to submit a revised draft of sale-deed is not only justified but is perfectly legal and does not amount to varying the terms of decree. The direction for submission of revised draft of sale-deed is necessitated by the changed circumstances of the case and in order to give effect to the decree of specific performance. It is quite idle to argue that the effect of substitution of the name of L. Rs, of Hiran Bai in the sale-deed or by allowing the decree-holder to make out a fresh sale-deed on fresh stamps paper after payment of proper stamp duty amounts to variation of the terms of decree. It is then urged by the learned counsel for the appellant that since the passing of the decree an area of about 33 acres of land out of the total area of 405 acres has been acquired under MLR-115 and, therefore, the decree as it stands canot be executed. In reply to this contention, Mr. S. M. Sadiq, the learned counsel for the respondent/decree-holders invited my attention to section 14 of the Specific Relief Act and contended that sale-deed can be executed in respect of the remaining area with the appellant. Section 14 is in the following terms :- "14. Specific performance of part of contract were part unperformed is small. Where a party to a contract is unable to perform the whole of his plart of it, but the part which must be left unperformed bears only a small proportion to the whole in value, and admits of compensation in money, the Court may, at the suit of either party, direct the specific performance of so much of the contract as can be performed, and award compensation in money for the deficiency."
12. It is jointly urged by the learned counsel for the parties that the Court should take notice of the subsequent events. It is almost an admitted position that under MLR-115 some area of the land out of the area sold to decree-holders has been acquired. The total area sold in the case was about 405 acres and the area acquired under MLR-115 as claimed by the appellant is about 33 acres.
13. When compared, the area acquired bears a very small proportion t the area sold and, therefore, I agree with the learned counsel for the decree holders that in view of section 14 of the Specific Relief Act the decree could be given effect to the extent of the area now available for transfer with the appellant.
14. ' It is lastly urged by the learned counsel for the appellant the proceedings Of eXecution were continued against a dead person and therefore it could not be executed and in any event the appellant who is treated as L. R. Of Hiran Bai was never served with the notice as required under Order XXI, rule 22 read with section 50, C. P. C. The contention has no merit. It is an admitted position in the case that upon the demise of Hiran Bai the present appellant sought substitution of his name by moving an application under Order XXII, rule 4, C. P. C. Before this Court which was granted and his name was brought on record as sole legal heir of Hiran Bai. The appeal in which the appellant's name was substituted as L. R. Of Hiran Bai arose from an order passed in Execution No, 9-A. The effect of substitution of the name of appellant in the appeal was that for all subsequent stages of the proceedings the appellant shall be deemed to have been substituted as the L. R. Of Hiran Bai. The mere fact that subsequently after the disposal of that appeal, the record of execution proceedings was not corrected accordingly, could not affect the validity of subsequent proceedings unless it is shown that by such omission on the part of the Court any prejudice has resulted to the appellant. It is not disputed that after receipt of the record of execution proceedings No, 9-A from the Supreme Court the appellant was issued notice which was duly served upon him and he contested the proceedings by filing objection before the executing Court. In the application dated 1-9-1977 under section 151, C. P. C. Filed by the respondents/Decree- holders it was prayed that the execution be issued against the present appellant and due notice of this application was served on him. I am also of the view that subsequent to the substitution of the name of Lela Ram in appeal and also in other proceedings Lela Ram appeared not in his personal capacity but in his capacity as L. R. Of Hiran Bai and, therefore, no complaint can be made by him now that a specific notice was not served on him as L. R. Of Hiran Bai under Order XXI, rule 22 and section 50, C. P. C. The fact that the notice dated 18-9-1978 issued by executing Court to the appellant describing him as "Hiran Bai wife of Pararam Shivadasani (deceased) through, her L. R.
15. Lelarram was substantial compliance of the provision of Order XXI, rule 22 and section 50, C. P. C. In the circumstances of the case. The learned counsel for the appellant are unable to show that any prejudice was caused to the appellant in so describing him in the notice.
16. ' There is no substance in this appeal which is accordingly dismissed with costs.