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Fulchand Hirchand Vs. N.B. Chandurkar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberAppeal No. 156 of 1955 under the Letters Patent
Judge
Reported inAIR1961Bom145; (1960)62BOMLR214; ILR1960Bom328
ActsLimitation Act, 1908 - Schedule - Article 182; Code of Civil Procedure (CPC), 1908 - Order 21, Rule 11
AppellantFulchand Hirchand
RespondentN.B. Chandurkar and ors.
Appellant AdvocateW.B. Pendharkar and ;R.N. Shrivastava, Advs.
Respondent AdvocateM.R. Bobde, ;J.N. Chandurkar and ;M.N. Chandurkar, Advs.
Excerpt:
.....code (act v of 1908), order xxi, rule 11--execution application stating number of suit but date of decree incorrectly stated--whether such application in accordance with law--mistake in date of decree whether a material irregularity in execution application.;in an application for execution of a decree the number of the suit in which the decree was passed and all other details were correctly stated but the date of the decree was incorrectly stated. on the question whether the application was in accordance with law: ;that the error in stating the date of the decree in the execution applition was not a material defect so as to make it difficult for the court to take out execution in accordance with law, and;that, therefore, notwithstanding the error in the date of the decree the..........1946 mad 611. an omission to give the number of the suit or even a mistake in the number of the suit as stated in the execution application would therefore make the application an application not in accordance with law. but if a mistake is made in the date of the decree it cannot be said that it is a material irregularity or defect in the execution application. once the number of the suit is given, the court can always refer to the decree in that suit, and if a mistake is made in the date of the decree, that is an unessential defect, as decided in gopal chander manna v. gosain das kalay ilr 25 cal 594. there it was observed that only material defects in an execution application would vitiate an application. it was held that a trivial defect of form in an execution application would.....
Judgment:

Raju, J.

1. This is a Letters Patent Appeal arising out of execution proceedings, against the judgment of the learned Single Judge of the Nagpur High Court, Mr. Justice B.K. Choudhuri, in Miscellaneous First Appeal No. 53 of 1954. That appeal was filed by one Fulchand who was the second mortgagee of the property viz., a house in Dhantoli at Nagpur. Against him an execution application bad been filed by the first mortgagee Mr. Chandurkar, Advocate, Nagpur, who had obtained a preliminary decree for sale of the house on 13-2-1946 and a final decree on 31-1-1949. He had filed three execution applications, one on 17-2-1949, the second on 9-12-1950 and the third on 12-7-1952, and the question for decision before the learned Single Judge of the High Court was whether the third application dated 12-7-1952 was to time. It was contended before him that that application was in time in view of the fact that an earlier application bad been made on 9-12-1950, which was according to Law. This contention was opposed by the present appellant who contended that the previous application was not in accordance with law because in the execution application although all other details had been given the date of the decree had been incorrectly stated. It was only on this ground that it was contended that the third application for execution dated 12-7-1952 was not within time.

2. The learned Single Judge held that the execution application filed on 9-12-1950 was according to law, that as it was dismissed as in fructuous on 31-8-1951, the third execution application filed on 12-7-1952 was within time. The learned Single Judge therefore dismissed the Miscellaneous First Appeal and it is against that judgment that the second mortgagee Fulchand has now come up in Letters Patent Appeal.

3. The only point urged for the appellant is that admittedly the date of the decree was incorrectly stated in the execution application dated 9-12-1950 and that therefore the execution application is not in accordance with law and does not save limitation. We reject this contention and agree, with respect, with the view taken by the learned Single Judge for the following reasons. As observed in Govind v. Malhar, : AIR1954Bom410 , the question whether any application in execution is in accordance with law or not must depend on the facts and circumstances of that application. No doubt, every application for execution must satisfy the requirements of Order 21, Rule 11, Civil Procedure Code, in addition to the other requirements of law, if any. Order 21, Rule 11, provides that written applications for execution should contain in a tabular form certain particulars, namely, the number of the suit, the names of the parties, the date of the decree etc. It does not necessarily follow that all these particulars are material particulars and that the omission or inaccuracy in stating any of them would have the result of vitiating the execution application. The object of an execution application is to enable the Court to take the necessary steps and all the particulars must be stated in the application which are necessary to enable the Court to take the necessary steps. If the number of the suit in which the decree has been passed is not stated, the Court would not be able to ascertain to what matter the execution application related, and therefore the number of the suit is one of the essential particulars in an execution application as decided in Satyanarayana v. Kajireddi ILR 1946 Mad 542 : AIR 1946 Mad 611. An omission to give the number of the suit or even a mistake in the number of the suit as stated in the execution application would therefore make the application an application not in accordance with law. But if a mistake is made in the date of the decree it cannot be said that it is a material irregularity or defect in the execution application. Once the number of the suit is given, the Court can always refer to the decree in that suit, and if a mistake is made in the date of the decree, that is an unessential defect, as decided in Gopal Chander Manna v. Gosain Das Kalay ILR 25 Cal 594. There it was observed that only material defects in an execution application would vitiate an application. It was held that a trivial defect of form in an execution application would not fail to save limitation. It was also held that if the execution application did not contain the correct dale of the decree, it would still be an application in accordance with law.

4. In the instant case, in the execution application dated. 9-12-1950 the number of the suit had been correctly stated and the date of the decree was stated as 13-1-1940. The preliminary decree was passed in 1946 but the final decree was passed on 3-1-1949. It is contended that in the execution application the dale of the final decree should have been stated and that therefore a material defect was left in the execution application. As the number of the suit was correctly stated, it was easy for the Court to take out the decree which was sought to be executed. On 13-12-1950 the Judge passed an order on the order sheet that the execution application wag checked and found correct and that it was registered. We therefore hold that an error in stating the date of the decree in the execution application is not a material defect so as to make it difficult for the Court to take out execution in accordance with law. With respect, we therefore agree with, the conclusion of the learned Single Judge that notwithstanding die error in the date of the decree the execution application dated 9-12-1950 was in accordance with law and that therefore the execution application dated 12-7-1952 was in time. This is the only point urged in this appeal and as there is no merit in this contention, the appeal is dismissed with costs.

5. We might also observe that the property inquestion had been sold on 27-2-1950 in Civil SuitNo. 4-A of 1947, filed by the present appellant assecond mortgagee. The equity of redemption hadbeen sold to one Santosh Kumar, and consequentlythe appellant has no interest in the property in question, and in fact respondent No. 1 (i.e. Mr. Chandurkar) has stated both orally and in writing before us,that he has no claim to make against the presentappellant. The question raised by the appellantFulchand before us is therefore one in which hehas really no interest. However, he has pressed fora decision on this contention. We have consideredit and rejected it.

6. Order accordingly.


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