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Dharamdeo Rai Vs. Jwala Prasad and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1930All188
AppellantDharamdeo Rai
RespondentJwala Prasad and anr.
Excerpt:
.....limitation. in this view the second application also was a good application so as to entitle the decree-holder to reckon the period of limitation from its date in making a later application. at best omission to mention 'legal representatives of the deceased decree-holder' instead of decree-holder was a mere irregularity, to which no exception had been taken in the court of first instance nor in the grounds of appeal before the lower appellate court-an irregularity which could not vitiate the order of the court of first instance directing execution to issue and which was in question in appeal. the case was clearly covered by the provisions of section 99, civil p. for instance, shortly after the application is presented and admitted, the applicant intimates to the court receiving the..........on the grounds (1) that it was barred by limitation, and (2) that it was made by one only of two decree-holders without certain formalities being observed. the appellant challenges the correctness of the view taken by the lower appellate court on both the grounds.2. the circumstances leading to the application in question may be briefly stated. a decree under order 34, rule 6, civil p.c., was passed on 29th may 1920 in favour of dharamdeo rai, the appellant, and chhatarsal rai against raj ballabh sahai for a sum of rs. 1,074-4-0. the first application for execution was made on 29th may 1921: but it was dismissed for want of prosecution after a protracted proceeding lasting for several months. the lower appellate court has discussed the circumstances which led it to believe that:that.....
Judgment:

1. This is an appeal from an order of the learned Additional Judge of Ballia reversing that of a Munsiff of that district and dismissing the appellant's application for execution of his decree on the grounds (1) that it was barred by limitation, and (2) that it was made by one only of two decree-holders without certain formalities being observed. The appellant challenges the correctness of the view taken by the lower appellate Court on both the grounds.

2. The circumstances leading to the application in question may be briefly stated. A decree under Order 34, Rule 6, Civil P.C., was passed on 29th May 1920 in favour of Dharamdeo Rai, the appellant, and Chhatarsal Rai against Raj Ballabh Sahai for a sum of Rs. 1,074-4-0. The first application for execution was made on 29th May 1921: but it was dismissed for want of prosecution after a protracted proceeding lasting for several months. The lower appellate Court has discussed the circumstances which led it to believe that:

that application was not a bona fide application with the intention of obtaining execution and was therefore in effective to save limitation.

3. The second application was made on 4th January 1924. It prayed for attachment and sale of the immovable property belonging to the judgment-debtor, who had since died, and the execution proceedings were directed against his legal representative. As the decree was over a year old and the application for execution was made against the legal representative of the original judgment debtor, notice was issued under Order 21, Rule 22, Civil P.C. Several attempts were made to effect service on the legal representative of the judgment-debtor but for some technical reason or other, which it is not necessary to mention in detail, notice remained unserved and the application was eventually dismissed on 13th January 1925. The learned Additional Judge has held that this application, like the first, was not a bona fide application for execution and was, besides, not in accordance with law in so far as it was not accompanied by a certificate from the registration office in regard to incumbrances on the property sought to be attached and sold. It has been pointed out by the learned Judge that this application was made more than three years after the date of the decree, though within three years from the date of the first application. If, therefore, the first application did not give a fresh start to limitation, the second application was barred by time, even if it be otherwise a good application. The third and the last application, which has given rise to this appeal, was made on 20th December 1926. In view of his opinion that the first application was not a bona fide one and that the second application was barred by limitation besides not being in accordance with law, the limitation for the third application was counted from the date of the decree and therefore, it was held to be barred. Another ground on which the learned Judge threw out the last application is that Dharamdeo Rai, the appellant, alone applied for execution:

without showing that Chhatarsal Rai (the co-decree-holder), had died and without impleading his legal representative.

4. This was supplemented by another observation made later in his judgment that the decree-holder had omitted to state in the application that the execution was sought for the benefit of himself and of the legal representatives of the deceased decree-holder, and therefore, the provisions of Order 21, Rule 15(1), Civil P.C., were infringed.

5. We are unable to agree with the lower appellate Court in the view he has taken and which has resulted in the dismissal of the appellant's application for execution of the decree. We are relieved of the necessity of examining the circumstances under which previous applications were made and dismissed, to determine if they, or any of them, had been made with the bona fide intention of obtaining execution of the decree as the latest full Bench case Kayastha Co. Ltd., v. Sita Ram : AIR1929All625 , has definitely laid down that the question of the decree-holder's intention in applying for execution being bona fide or otherwise is immaterial. The view expressed in Sheo Prasad v. Naraini Bai : AIR1926All95 is no longer good law. The first application, already referred to, was, therefore, a good application to save limitation. This being so, the second application, which was made within three years of the date of the 1st application, should be deemed to have been in time. We have to consider the further question whether it was in accordance with law. It is not disputed that it was in proper form and gave all the particulars required by Order 21, Rule 11, Civil P.C., and was made to a proper Court. The learned Additional Judge characterises it as one not in accordance with law on the ground that it was not accompanied by a certificate from the registration office showing incumbrances, if any, as required by Rule 106 added by this Court to Order 21, Civil P.C., under its rule making powers conferred Section 122 of that Code. We are of opinion that an application otherwise in proper form and not wanting in any particulars required to be mentioned therein by Order 21, Rule 11, Civil P.C., and presented to a proper Court in itself cannot be regarded as one not in accordance with law in consequence merely of the non-observance of Rule 106, already referred to. The omission to file a certificate required by that rule will not entitle the decree-holder to have process issued on his application; but the application will not, on that account, cease to be one in accordance with law. If within a reasonable time such certificate is furnished, the process prayed for in the application for execution should issue. In this view the second application also was a good application so as to entitle the decree-holder to reckon the period of limitation from its date in making a later application.

6. There is another ground not noticed by the Court below which the decree-holder can avail of to make his last application within time. The learned Additional Judge has mentioned in his judgment, and indeed it is not disputed, that notice under Order 21, Rule 22, Civil P.C., was issued on the 2nd application for execution being made. Under Article 182(6), Lim. Act, which has been since replaced by a differently worded article by Act 9 of 1927, a fresh start is given to limitation from:

the date of issue of notice to the person against whom execution is applied for to show cause why the decree should not be executed against him when the issue of such a notice is required by the Code of Civil Procedure, 1908.

7. Such a notice was necessary under Order 21, Rule 22, Civil P.C., because the original judgment-debtor had died and also because the decree sought to be executed was over a year old. It was accordingly issued on some date after the second application made less than three years before the last application, Which should, therefore, be considered to be within time.

8. The learned Judge has dismissed the last application on the additional ground that only one of the two decree-holders applied for execution without making it appear on the face of it that it was made for the benefit of the legal representatives of his deceased co-decree-holder. In taking to this course the learned Judge has allowed his mind to be influenced by too technical a consideration which is devoid of all substance and in utter disregard of the ends of substantial justice. He admits that:

on the top of p. 2 of the present application for execution the decree-holder has shown that he alone was executing the decree for the benefit of all the decree-holders,

because he should have said that the decree was sought to be executed for the benefit of himself and 'the legal representatives of the deceased.' It cannot be disputed that, if the other decree-holder had not died, the statement that it was for the benefit of the applicant and other decree-holders would have fulfilled the requirements of Order 21, Rule 15, Civil P.C. Stress is laid on the wording of the last mentioned rule, which enacts that:

where a decree has been passed jointly in favour of more persons than one, any one or more of such persons may, unless the decree imposes any condition to the contrary apply for the execution of the whole decree for the benefit of them all, or, where any of them has died for the benefit of the survivors and the legal representatives of the deceased.

9. The Court of first instance had granted the application for execution. The question was not raised in the memorandum of appeal. It was, however, allowed to be argued by the lower appellate Court. On the decree-holder applying for amendment of the application it refused to allow amendment at that stage. It was merely a verbal amendment that was necessary: instead of 'for the benefit of other decree-holders' the application was desired by amendment to state:

for the benefit of the surviving decree-holders and the legal representatives of the deceased decree-holder.

10. It should be borne in mind that the provisions of Order 22, Civil P.C., which relates to substitution of legal representatives for a deceased party, do not apply to execution proceedings, and no question of abatement of any proceeding could arise. At best omission to mention 'legal representatives of the deceased decree-holder' instead of decree-holder was a mere irregularity, to which no exception had been taken in the Court of first instance nor in the grounds of appeal before the lower appellate Court-an irregularity which could not vitiate the order of the Court of first instance directing execution to issue and which was in question in appeal. The case was clearly covered by the provisions of Section 99, Civil P.C., as the irregularity, if it be one, did not affect the merits of the case or the jurisdiction of the Court, whose order was questioned in appeal.

11. The reason for disallowing the amendment which the appellant desired to make in his application for execution as regards reference to 'other decree-holders' instead of 'the legal representatives of the deceased decree-holders,' as given by the learned Judge of the Court below, was that 'the defects in the requirements of Rr. 11 to 14 are only of a formal character, whereas Rule 15 goes to the root of the execution of the decree itself and the application for execution was, therefore, not a valid application for execution of the decree. The learned Judge felt overpowered in adopting this view by the case of Meik v. Midnapur Zamindari Co., Ltd. [1919] 4 Pat.L.J. 575 which proceeds on the peculiar facts of its own where the decree-holder professed to act for himself alone in applying for execution of a decree in favour of himself and another person and did not state that the execution of the decree was desired for the benefit of all the decree-holders. The Court omitted to record its permission, as it ought to have done under Order 21, Rule 15(2), that it allowed the decree to be executed by one only of several decree-holders and to make any orders, which again, it ought to have done, for protecting the interests of the co-decree-holders who had not joined in the application. Under these circumstances, the Court of appeal was entitled to treat the application for execution as not a valid one on which process could issue. It should be noted that the Court of first instance had held in that case that a joint decree-holder had an unqualified right to execute the whole decree. This was obviously an incorrect view. An application for amendment was made before the High Court so as to make it appear that the application was for the benefit of all decree-holders, and in that connexion it was observed that a defect in the requirements of Rr, 11 to 14 could be amended, but not those of Rule 15 a remark which was based on Rule 17.. With great respect to the learned Judges who made that observation, we would point out that there is nothing in Rule 17 which deprives the Court of its powers to allow amendments in relation to matters required to be mentioned by Rule 15. Rule 17 runs thus:

On receiving an application for the execution of a decree, as provided by Rule 11(2) the Court shall ascertain whether such of the requirements of Rr. 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.

12. It will appear that the duty of examining the application for execution, in so far as particulars required by Rr. 11 to 14 are concerned and to have the defects remedied if necessary has been cast on the Court receiving the application. The utmost that can be said with reference to Rule 15 is that no similar duty has been cast on the Court receiving the application; but it does not follow that, if any requirements of Rule 15 have not been complied with by inadvertence or otherwise, the Court, when its attention is drawn to the defect subsequently, cannot allow amendment. If; for instance, shortly after the application is presented and admitted, the applicant intimates to the Court receiving the application that there are other decree-holders besides himself and that execution of the decree is sought for the common benefit of them all, a fact which did not appear on the face of the application by inserting a note to that effect, we do not doubt that the Court would be perfectly justified in allowing such amendment to be made without infringing any provision of law. There is no difference in principle if the application is made at a later stage, even before the Court of appeal. The delay in making the application may influence the Court in exercising its discretion to allow amendment, but there can be no question that the Court has power to allow such amendments to be made in proper case. For these reasons, we are not disposed to accept the dictum of the learned Judges of the Patna High Court as of general application and apart from the facts of the particular case before them.

13. Lastly, we have to consider the question whether the third application was not in accordance with law inasmuch as the certificate of the registration office as regards incumbrances was not filed with it but somewhat later. The learned Judge of the Court below thinks that if an application for execution is not accompanied by such a certificate, it is no application in law and the subsequent production of the required certificate cannot cure the defect. We have already indicated our views on this question in dealing with the validity or otherwise of the second application. We are clear that the omission to produce the certificate with the application does not necessarily entail the consequences of dismissal of the application for execution. The certificate was furnished in this instance within a reasonable time, and the process of execution was directed to be issued by the Court of first instance. It is not suggested that the last application was not in proper form or omitted to give any particular which Order 21, Rule 11, Civil P.C., requires. We hold that it was in accordance with law.

14. Having regard to the conclusions arrived at by us on the questions decided adversely to the appellant by the lower appellate Court, this appeal must succeed. It is accordingly allowed with costs. The order of the lower appeallate Court is set aside and that of the Court of first instance restored. The appellant will have his costs in all the Courts.


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