Skip to content


Kallu Mal Vs. Kashi Nath and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in68Ind.Cas.175
AppellantKallu Mal
RespondentKashi Nath and ors.
Excerpt:
execution proceedings, revival of - execution, application for, defective deject immaterial--application returned for amendment--he-filed after expiry of limitation--decree-holder prepared to fall back on previous application--previous application, whether revives. - - 3. when first presented, the application was a good application, so far as it asked for the preparation of a final decree for sale for the amount entered therein.1. this is an appeal from an order, rejecting an application for the preparation of a final decree for sale. toe preliminary decree for sale was passed on the 24th september 1915. it allowed time for the payment of the decretal money till the 24th march 1916. on the 11th december 19(sic)8 an application was made by the decree-holder for the preparation of a final decree for sale. on the same dale the office reported that the amount of demand entered in the application was not correct and that some portion of the mortgaged property had also been omitted on the 13th december 1918 the court passed an order returning the application to the decree-holder for amendment without fixing any time for its presentation after amendment. the decree holder received back the application on the 21st.....
Judgment:

1. This is an appeal from an order, rejecting an application for the preparation of a final decree for sale. Toe preliminary decree for sale was passed on the 24th September 1915. It allowed time for the payment of the decretal money till the 24th March 1916. On the 11th December 19(sic)8 an application was made by the decree-holder for the preparation of a final decree for sale. On the same dale the office reported that the amount of demand entered in the application was not correct and that some portion of the mortgaged property had also been omitted On the 13th December 1918 the Court passed an order returning the application to the decree-holder for amendment without fixing any time for its presentation after amendment. The decree holder received back the application on the 21st December 1918, bat did not file it after amendment till the 29th May 1919. On the 6th March 1918 the Court ordered that, as the application had not been filed after amendment, the papers should be consigned to the record room.

2. The question for consideration in this appeal if, whether the amended application should be treated as a fresh application for the preparation of a final decree for Bale, in which case it would be barred by time, or as a contiouation of the previous application which was filed within tims. The Courts below took the former view and held that it was barred by time. It is not dear under what provision the application was returned for amendment to the dearee holder. If the Court of first instance followed the analogy of the provision contained in 0 XXI, Rule 17 of the Code of Civil Procedure, it was bound to fix a time for amendment, and the effect of the amendment, if made, would have been to render the application valid as from the dice on which it was first presented. That provision, however, applies to an application for execution. If the Court directed the amendment under Section 153 or Order VI, Rule 17 of the Code of Civil Procedure, it should have kept the application pending and required the decree-holder to amend it within a certain time or at all events within 14 days from the date of the order. The penalty for not making such an amendment under Order VII, Rule 18 would have been to deprive the decree-holder of his right to make the amendment thereafter, unless the time was extended by the Court, leaving the application in that event to be dealt with on its merits.

3. When first presented, the application was a good application, so far as it asked for the preparation of a final decree for sale for the amount entered therein. The only amend rent needed in the application was in respect of the amount claimable under the decree, which was entered less than what was actually due to the decree-holder, and a defective description of the mortgaged property, as the name of the village had bean omitted and a small share in a certain house had also been left out. If these defects are left out of account, there would still be a valid application to the Court for the preparation of final decree to the extent of the amount for which a final decree was claimed. The learned Counsel, who appears for the decree-holder, states that he is prepared to accept a decree for the amount entered in the original application. In regard to the mistake in the description of the mortgaged property, that could easily have been rectified at any time before the preparation of the final decree; and we do not consider that it was a defect which ought to have stood in the way of the application being accepted and ac(sic)ed on for the preparation of a final decree. In any case the Court was to blame for not fixing a time for amendment as much as the decree-holder for the delay in presenting it after amendment; and considering all the circumstances, we are disposed to treat the application, presented after amendment, as a continuation of the previous application. It war, in any ease, an application for the cantinuation or revival of the same proceeding and as such it was not barred by time.

4. We allow this appeal, accordingly, set aside the orders of the Courts below and direct the Court of first instance to reinstate the application under its original number and to dispose of it according to law.

5. As the decree-holder is content to ask for the sum entered in the original application, he should not be allowed to take out a final decree for a larger amount. We do not allow him any costs here or in the Court below. In view of the circumstances the judgment debtors shall also bear their own coats throughout.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //