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Mahomedbhai SamsuddIn Jivaji Raja Vohra Vs. M.A. Dawoodbhai and Co. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMumbai
Decided On
Case NumberO.C.J. Appeal No. 70 of 1937 and Ahmedabad Court Suit No. 817 of 1931
Judge
Reported inAIR1938Bom405; (1938)40BOMLR676
AppellantMahomedbhai SamsuddIn Jivaji Raja Vohra
RespondentM.A. Dawoodbhai and Co.
DispositionAppeal dismissed
Excerpt:
civil procedure code (act v of 1908), order xxi, rules 17, 22-decree-execution -application for execution-property sought to be attached not specified- subsequent application to amend by specifying properties sought to be attached-court's jurisdiction to grant such application-step-in-aid of execution.; under order xxi, rule 17, of the civil procedure code of 1908, it is for the court, or its ministerial officer, to ascertain that an application for the execution of a decree complies with the necessary requirements. nevertheless it is open to the court at any time up to, and inclusive of, the hearing to allow the defect or defects in the application to be remedied by amendment, in a fit case.; where in an application for execution by attachment of property the particular immoveable..........cases that such a discretion should be exercised in favour of the decree-holder, only if at the time of application for amendment the period of three years from the last date of computation under article 182 of the indian limitation act has not expired. in the full bench case at calcutta the period of limitation had expired when the application for amendment was made to the court. in the present case the application for execution was within time. the application for amendment, however, was made in august, 1937, and underarticle 182 of the indian limitation act the three years' period had already expired in july, 1937. as against that there is a further consideration, namely, the issue of the notice under order xxi, rule 22, on april 23, 1937. it is doubtful whether the issue of that.....
Judgment:

John Beaumont, Kt., C.J.

1. This is an appeal from a decision of Mr. Justice Engineer, which raises a short question in execution. On August 11, 1932, judgment was obtained by the present respondents against the appellant and two others, in the Court of the First Class Subordinate Judge at Ahmedabad, and on July 25, 1934, that decree was transferred to this High Court for execution. On April 21, 1937, an application was made by the respondents to execute the decree under Order XXI, Rule 11, But the application was defective in that it did not specify the property which was to be attached, as it should have done under Order XXI, Rule 13. All that appears in column J, the heading of which is, ' The mode in which the assistance of the Court is required ', are the words, ' By attachment under Order XXI, Rule 54, of the Code of Civil Procedure, and issuing notice under Order XXI, Rule 22 of the said Code.' With nothing more to go upon it would have been impossible for the Court to execute the decree.

2. The matter came before the learned Judge in Chambers in August, 1937, and he thereupon gave leave to amend the application by describing the property sought to be attached. In this appeal it is argued that the learned Judge ought not to have given that leave. It is said that he purported to give the leave pursuant to the provisions of Order XXI, Rule 17, which is not applicable, and that he ought not to have given leave to amend under the general jurisdiction because time had run against the applicant when the leave was asked for.

3. The question whether r, 17 of Order XXI authorises the Court to amend an application for execution at the time of the hearing has given rise to considerable difference of judicial opinion in India. The rule provides in Sub-rule (1) that on receiving an application for the execution of a decree the Court is to ascertain whether such of the requirements ofRules 11 to 14 as may be applicable to the case have been complied with, and if they have not been complied with; the Court may reject the application, or may allow the defect to be remedied then and there or within a time to be fixed by it. Now the view which was taken by a full bench of the Calcutta High Court in Asgar Ali v. Troilokya Nath Ghose I.L.R. (1890) Cal. 631,F.B. is that when an application is first made to the Court, the Court in considering whether it should be admitted and entered on the appropriate register has to see that it is in order, and if it is not in order, it can require it to be amended, but that after the application has once been admitted and entered on the register, the powers of the Court under Rule 17 are at an end, and no leave to amend can afterwards be granted. The view taken in Asgar Alt v. Troilokya Natk Ghose was followed by the High Court of Calcutta in Hayatunnessa Chowdhurani v. Achia Khatun I.L.R. (1923) Cal. 743 though a different view had been taken in Gnanendra Kumar Roy Choudry v. Risbendra Kumar Roy Choudry (1918) 22 C.W.N. 540. The Patna High Court in Jagannath Das v. Chamu Raghmath Khuntia I.L.R. (1928) Pat. 462 followed Asgar Ali v. Troilokya Nath Ghose I.L.R. (1890) Cal. 631,F.B.. On the other hand in Sheagobind Ram v. Musammat Kishunbasi Kuer I.L.R. (1932) Pat. 546 where the judgment was delivered by the same learned Judge who had delivered judgment in Jagannath Das case, the Court came to a different conclusion without referring to the earlier case. In Vemuri Pitchayya v. Raja Yarlagadda Ankineedu : (1923)45MLJ651 the Madras Court disagreed with the view taken in Asgar Ali v. Troilokya Natk Ghose. On the other hand Sankman Nair v. Ambu : (1925)49MLJ699 appears to agree with Asgar Ali v. Troilokya Natk Ghose. In that state of the authorities one has to look rather critically at the words of the rule, and I am disposed to agree that, if Sub-rule (1), which I have already referred to, stood alone, the view taken in Asgar Ali v. Troilokya Nath Ghose would be right, and I should say that the rule only applies when the Court is considering taking the application on its file. But then one has to look at the later sub-rules. Sub-rule (2) is not relevant to the argument, for it merely directs that the amendment shall relate back to the presentation of the application. But Sub-rule (3) provides that 'every amendment made under this rule shall be signed or initialled by the Judge,' and Sub-rule (4) provides that when the application is admitted, the Court shall enter in the proper register a note of the application and the date on which it was made, and shall, subject to the provisions thereinafter contained, order execution of the decree according to the nature of the application. That sub-rule seems to contemplate, first of all, a ministerial act in entering a note of the application in the proper register, and secondly, a judicial act, namely, the ordering of the execution of the decree, and the doing of both acts is mandatory. But that judicial act could not in this case have been performed unless the application was amended, and that would probably be so in many cases. So that the direction in Sub-rule (4) that an order for execution shall be made, certainly, I think, suggests that the application must be put in order at the time when the Court is considering whether the order for execution should be made or not. That view is also strongly supported to my mind by Sub-rule (3), which requires every amendment made under the rule to be signed or initialled by the Judge. Clearly the Judge could not be expected to sign or initial amendments which were required by the office before the application was entered on the file. The amendment must in fact be signed at the time of the hearing. In my view, therefore, reading the whole of r.17 together, although, no doubt, the office can and should require the application to be in the condition required, by the rules at the time when it is presented, nevertheless it is open to the Court at any time, up to and including the hearing, to make an amendment under the terms of the rule. In my opinion, therefore, the learned Judge was right in making the amendment under the terms of Rule 17.

4. Even if I had thought that he had no power to make the amendment under Rule 17, I should have said in this particular case that he was right to allow the amendment under the general jurisdiction of the Court to allow amendments, because the application did not seek execution against a particular property which subsequently proved not to be subject to execution, the applicant therefore being compelled to ask for leave to execute against another property after limitation had run. The application here did not specify any property, it merely referred generally to attachment of property under Rule 54, that is, of immoveable property. It must, from the nature of the case, have referred to the defendants' immoveable property. The amendment therefore only involves giving particulars of that which was dealt with in general terms by the application. I am not prepared to accept Mr. Vachha's contention that the application was a mere nullity, because it did not describe the property in detail. However, if the amendment was made under Rule 17, there is express power to make it, and Sub-rule (2) makes it clear that the fact that limitation has expired is irrelevant. In my opinion the appeal must be dismissed with costs. I express no opinion on the further question whether giving leave under Order XXI, Rule 22, is a step-in-execution.

B.J. Wadia, J.

5. I am of the same opinion. Taking Order XXI, Rule 17(1), by itself, it would at first sight appear to contemplate the amendment of defects in an application for execution before the application was admitted and received by the Court. But the question still remains whether, supposing the Court overlooks the defect or defects and registers the application, the defect or defects can be subsequently amended so long as the application is still pending and the execution proceedings have not been closed. In Baijnath v. Binjraj : In re Jankiprasad (1936) 39 Bom. L.R. 540. I referred to the full bench judgment m Asgar Ali v. Troilokya Nath Ghose I.L.R. (1890) Cal. 631,F.B. and I was of opinion that the Calcutta High Court had taken a very strict view of old Section 245 of the Code of 1882, which is substantially reproduced m Order XXI, r.17(1). In that case the Calcutta High Court held that the section excluded the power of the Court to amend the application for execution once it had been admitted or received by the Court and the application registered. In my opinion Order XXI, Rule 17 (2), must be read' along with Sub-rules (3) and (4). Sub-rule (4) says that after the application is admitted and registered, the Court shall order execution of the decree according to the nature of the application. The admission and registration is a ministerial act of the Court which is usually delegated to one of its officers. But unless the Court had the power to consider judicially whether the application was one in accordance with law, even after it was received and registered, it would be useless to order execution of a decree, if by reason of the defect it was not capable of execution. The mere fact of the receipt and registration of the application for execution should not therefore debar the Judge from considering whether the defects in the application should or should not be remedied. In fact that appears to be contemplated by Sub-rule (3), which provides that every amendment made under that rule shall be signed or initialled by the Judge. The executing Court has, under this rule, got a discretion to allow the necessary amendments in the application in a fit case, if the provisions of Order XXI, Rules 11 to 14, have not been substantially complied with. It has, however, been pointed out in some cases that such a discretion should be exercised in favour of the decree-holder, only if at the time of application for amendment the period of three years from the last date of computation under Article 182 of the Indian Limitation Act has not expired. In the Full Bench case at Calcutta the period of limitation had expired when the application for amendment was made to the Court. In the present case the application for execution was within time. The application for amendment, however, was made in August, 1937, and underArticle 182 of the Indian Limitation Act the three years' period had already expired in July, 1937. As against that there is a further consideration, namely, the issue of the notice under order XXI, Rule 22, on April 23, 1937. It is doubtful whether the issue of that notice is a step-in-aid of execution under art, 182, on the ground that the notice, being ancillary to the application for execution, cannot amount to a valid step-in-aid of execution, if the principal application itself is defective. It is not, however, necessary to decide the point, for 1 am of opinion that under Order XXI, Rule 17, the Court has a discretion, even if the application for amendment is made after the expiry of the period of limitation under Article 182, to remedy the defects when first brought to its notice, provided the delay is not unreasonable under the circumstances, and the application is otherwise bona fide. There is no ground for interfering with the discretion exercised by the learned Judge.

6. Even apart from Order XXI, Rule 17, the Court always has the discretion to allow the amendment under its general jurisdiction, and on that ground also the learned Judge was right in holding that the application for amendment should be allowed. In the result I agree that this appeal must be dismissed with costs.


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