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(Captain) Raja Ram-gopal Singh Vs. Harish Chandra Lal and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1936All17; 158Ind.Cas.752
Appellant(Captain) Raja Ram-gopal Singh
RespondentHarish Chandra Lal and anr.
Excerpt:
- - ram prasad 46 all 637 .it was held in the former case that a defective presentation of a plaint on account of failure to comply strictly with the provisions in orders 3 and 4, civil p. , but the opportunity given by the court was not availed of with the result that the court was not satisfied that the application complied with the provisions of clause 2 of rule 11. the court therefore rejected the application. as that court was not satisfied that the application was signed and verified by a person authorized by law to sign and verify the same, it held that the application was not in accordance with law and accordingly rejected the same......and it was also presented by him. no mukhtarnama was filed to show that the person who signed, verified and presented the application was the mukhtar-i-am of the decree-holder. the court allowed time to enable the person who had signed the application to show that he was authorized to sign the execution application. no one however appeared to satisfy the court on the point with the result that the court dismissed the application as having been signed, verified and presented by an unauthorized person.3. it is provided by order 21, rule 11(2), civil p.c., that every application for the execution of a decree shall be in writing, signed and verified by the applicant or by some other person proved to the satisfaction of the court to be acquainted with the facts of the case. order.....
Judgment:

Iqbal Ahmad, J.

1. This is a decree-holder's application and is directed against an order passed by the Small Cause Court Judge of Allahabad dismissing an application for execution on the ground that the same was time barred. The application for execution was admittedly filed more than three years after the date of the decree sought to be executed. It was however alleged to be within time on the ground that a previous application for execution of the same decree had been filed on 7th December 1931, i.e., within three years of the present application for execution. The learned Small Cause Court Judge however held that the former application was not an application in accordance with law and therefore refused to treat the same as a step-in-aid of execution.

2. The learned Counsel for the applicant contends that the view of the Court below that the application for execution filed in the year 1931 was not in accordance with law, is erroneous, and in support of this contention he has placed reliance on the Full Bench decision of this Court reported as Wall Mohamad Khan v. Ishaq Ali Khan 1931 ALJ 777 and Shib Deo Misra v. Ram Prasad 46 All 637 . It was held in the former case that a defective presentation of a plaint on account of failure to comply strictly with the provisions in Orders 3 and 4, Civil P.C., is a mere irregularity which can be cured either under Section 99, or Order 6, Rule 17, Civil P.C., and does not affect the jurisdiction of the Court. In the latter case it was decided that a plaint which is filed without having been verified in the manner prescribed by the Code of Civil Procedure is not an invalid document but may be verified at a later stage of the suit even after the expiry of limitation. These two cases are no doubt an authority for the proposition that a defect in the verification of the plaint or in its presentation is a mere irregularity not affecting the jurisdiction of the Court and that such an irregularity can be cured if proper steps are taken for the removal of the irregularity during the pendency of the case. These cases however in my judgment have no application to the case before me. The application for execution filed in 1931 was signed and verified on behalf of the decree-holder by a man who purported to be the mukhtar-i-am of the decree-holder and it was also presented by him. No mukhtarnama was filed to show that the person who signed, verified and presented the application was the mukhtar-i-am of the decree-holder. The Court allowed time to enable the person who had signed the application to show that he was authorized to sign the execution application. No one however appeared to satisfy the Court on the point with the result that the Court dismissed the application as having been signed, verified and presented by an unauthorized person.

3. It is provided by Order 21, Rule 11(2), Civil P.C., that every application for the execution of a decree shall be in writing, signed and verified by the applicant or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case. Order 3, Rule 1, provides that any appearance, application or act in or to any Court required or authorized by law to be made or done by a party may be made or done by the party in person or by his recognized agent or by a pleader on his behalf. An application for execution must therefore be signed and verified either by the applicant himself or by his recognized agent or by his pleader or it must be signed and verified by some person proved to the satisfaction of the Court to be acquainted with the facts of the case. When the application for execution was filed in 1931, the Court called upon the applicant to satisfy the Court that the application was signed and verified in accordance with the requirements of Order 21, Rule 11(2), Civil P.C., but the opportunity given by the Court was not availed of with the result that the Court was not satisfied that the application complied with the provisions of Clause 2 of Rule 11. The Court therefore rejected the application. It is not open to the applicant now to show that the person who signed and verified the application was either the recognised agent of the decree-holder or was a person acquainted with the facts of the case. These facts should have been proved before the Court to which the application was presented. As that Court was not satisfied that the application was signed and verified by a person authorized by law to sign and verify the same, it held that the application was not in accordance with law and accordingly rejected the same. That order cannot be questioned now. The case before me is not one in which a defective application for execution is still pending and an attempt is being made to cure the irregularity in the signing or verification of the same. On the other hand the application has already been dismissed because of an irregularity and therefore there can be no question of the irregularity being cured.

4. I do not overlook the fact that minor, defects in an application for execution, for instance the omission to mention the number of the suit or the date of the decree, etc., do not by themselves render the application for execution defective and not in accordance with law, but the provisions of Rule 11 as regards the signing and verification of the application for execution are mandatory and the omission to comply with the same constitutes a material irregularity which, unless cured, renders the application open to the objection that the same is not in accordance with law.

5. For the reasons given above I dismiss this application. Under the circumstances of the present case, I make no order as to the costs of this application.


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