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Rau Parsu Mardikhot Vs. Kallappa Bahu Shetti - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKarnataka High Court
Decided On
Case NumberSecond Appeal No. (B) 29 of 1957
Judge
Reported inAIR1960Kant277; AIR1960Mys277; ILR1960KAR863
ActsCode of Civil Procedure (CPC), 1908 - Order 21, Rules 11(2), 17(1) and 17(2)
AppellantRau Parsu Mardikhot
RespondentKallappa Bahu Shetti
Excerpt:
.....of suit items 4,5,12, and 17 in a schedule and 1,2, and 3 of b schedule was a document of vital significance for the defendants in proving their case of earlier division in the family and ignoring such a piece of evidence has clearly vitiated the judgment and decree of the lower appellate court. judgment and decree of both the courts below are set aside. - the district judge who heard that appeal reversed the order of the executing court, holding that the execution application was well within time, since the amendment which was permitted by the executing court related back to the date of the presentation of the execution application. in a case like this, as pointed out by fazl ali j. it, therefore, follows that where in the very same execution application, the misperception is..........was a person against whom a money decree had been made in a suit brought by the respondent. an execution application for the recovery of that amount was application for the recovery of that amount was presented by the respondent-decree-holder on july 18, 1953. but, in that application, the decree holder prayed for the execution of the decree against the appellant's son who was described as judgment-debtor. the decree-holder appears to have been under the impression that the appellant was dead and that the execution had, therefore, to be taken against his son.(2) it appears to have been subsequently discovered by the decree-holder that the appellant was really alive and that he had committed a mistake in asking for execution to proceed against his son. he, therefore, made an.....
Judgment:

(1) This is an execution appeal in which the only question involved is one of limitation. The appellant in this appeal was a person against whom a money decree had been made in a suit brought by the respondent. An execution application for the recovery of that amount was application for the recovery of that amount was presented by the respondent-decree-holder on July 18, 1953. But, in that application, the decree holder prayed for the execution of the decree against the appellant's son who was described as judgment-debtor. The decree-holder appears to have been under the impression that the appellant was dead and that the execution had, therefore, to be taken against his son.

(2) It appears to have been subsequently discovered by the decree-holder that the appellant was really alive and that he had committed a mistake in asking for execution to proceed against his son. He, therefore, made an application on June 16, 1954, for permission to amend his execution application, by substituting for the son of the appellant the appellant himself. The amendment was allowed on June 17, 1954.

(3) Thereupon, the appellant raised an objection that the execution application in so far as it related to him was time-barred. His contention was that the amendment which was allowed by the executing Court did not relate back to the date of the presentation of the execution application, but related only to the date of the presentation of the amendment application.

(4) It is undisputed that if the amendment permitted by the executing court related back to the date of the presentation of the execution application, the objection that the execution application, the objection that the execution application against the appellant could not proceed on the ground that the execution proceedings against him had become time-barred cannot succeed.

(5) The executing Court upheld the objection of the appellant and dismissed the execution application as time-barred. From that order, the decree-holder appealed. The District Judge who heard that appeal reversed the order of the executing Court, holding that the execution application was well within time, since the amendment which was permitted by the executing Court related back to the date of the presentation of the execution application. He, therefore, directed the execution to proceed. From that order made by the District Judge, the appellant who is judgment-debtor I appeals.

(6) On his behalf, Mr. Albal urges that the view taken by the District Judge that the amendment permitted to be made by the executing Court related back to the date of the presentation of the execution application was unsustainable. His argument was that having regard to the character of the amendment which was permitted by the executing Court, which was of a very substantial nature, the ordinary rule that an amendment permitted under the provisions or Rule 17 of Order XXI of the Code of Civil Procedure related back to the date of the presentation of the defective execution application was inapplicable.

(7) Now, under Rule 11(2)(i) of Order XXI of the Code of Civil Procedure, the application for the execution of the decree should contain the name of the person against whom execution of the decree is sought. The provisions of Rule 17(1) and (2) of Order XXI are:

'17. Procedure on receiving application for execution of decree. (1) On receiving application for execution of decree as provided by rule 11, sub-rule (2), the Court shall ascertain whether such of the requirements of rules 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.

(2) Where an application is amended under the provisions of sub-rule (1) it shall be deemed to have been an application in accordance with law and presented on the date when it was first presented.

* * * *'

The provisions of sub-rule (2) of Rule 17, referred to above, constitute a complete answer to the contention urged by Mr. Albal that the amendment which was permitted by the executing Court did not relate back to the date of the presentation f the defective execution application. This was a case in which the defect in the execution application which was not in conformity with the provisions of Rule 11(2)(i) of Order XXI of the Code of Civil Procedure was an immaterial defect.

In a case like this, as pointed out by Fazl Ali J., as he then was, in Gajanand Sha v. Dayanand Thakur, AIR 1943 pat 127 the preponderance of legal opinion is in favour of the view that where the decree-holder wishes by means of a subsequent application merely to correct any misdescription mentioned in his application for exception, his application may be regarded as a constitution of that application, but where he tries to substitute a new relief quite different from the relief which he wanted in the first instance, his application must be regarded as a fresh application for execution.

Now, it is obvious that the amendment which was permitted to be made by the executing Court was merely to correct a misdescription in regard to the person against whom the decree-holder wished to proceed in execution of his decree. That being the position, if the decree-holder had presented a fresh application for the execution of the decree against the appellant himself, after having discovered that he was alive and not dead, his second application would have been, in accordance with the principle enunciated by Fazl Ali J., treated as a continuation of his earlier defective application, in which event, it would not have been possible for the appellant to contend that the second application was time-barred.

It, therefore, follows that where in the very same execution application, the misperception is permitted to be corrected and is corrected by an order of the executing Court, it would be impossible for a judgment-debtor, like the appellant in the present case to resist the execution proceedings on the ground that by the time the misdescription was corrected, the execution application had become time-barred.

(8) The view that I take entirely accords with the view of their Lordships of the High Court of Allahabad in Asa Ram v. Babu Ram, : AIR1956All494 in which the decision of the High Court of Patna in Pratap Udai Nath v. Baraik Lal Sahi, AIR 1947 Pat 129 laying down the same principle was followed.

(9) This appeal fails and is dismissed with costs.

(10) Appeal dismissed.


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