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Dolagobinda Sahu Vs. Chakradhar Mohapatra and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. Appln. No. 11 of 1954
Judge
Reported inAIR1955Ori94
ActsCode of Civil Procedure (CPC) , 1908 - Sections 48 - Order 21, Rule 17; Limitation Act, 1908 - Schedule - Article 182
AppellantDolagobinda Sahu
RespondentChakradhar Mohapatra and ors.
Advocates:U.N. Rath and ;J. Rath, Advs.
DispositionAppeal allowed
Cases ReferredShekendar Ali Meah v. Abdul Gafur
Excerpt:
.....v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - and (b) a specification of the judgment-debtor'sshare or interest in such property to the best ofthe belief of the applicant, and so far as he hasbeen able to ascertain the same.misra, j.1. this application in revision has been filed by the decree-holder against an order of the learned sub-ordinate judge of cuttack, dated 8-10-1953, wising the decree-holder's prayer to amend the prosecution petition by including certain properties in the list of properties originally appended to the execution petition. the decree in question was passed in money suit no. 41 of 1939 on 11-11-40, and the application for amendment was presented on the last day of the period of 12 years prescribed by section 48, c. p. c. the main ground on which the application was resisted by the judgment-debtors was that it was not maintainable in view of the provisions of order 21, rule 17, c. p. c. their contention was that order 21, rule 17, c. p. c. provides for an amendment of the execution.....
Judgment:

Misra, J.

1. This application in revision has been filed by the decree-holder against an order of the learned Sub-ordinate Judge of Cuttack, dated 8-10-1953, wising the decree-holder's prayer to amend the prosecution petition by including certain properties in the list of properties originally appended to the execution petition. The decree in question was passed in Money Suit No. 41 of 1939 on 11-11-40, and the application for amendment was presented on the last day of the period of 12 years prescribed by Section 48, C. P. C. The main ground on which the application was resisted by the judgment-debtors was that it was not maintainable in view of the provisions of Order 21, Rule 17, C. P. C. Their contention was that Order 21, Rule 17, C. P. C. provides for an amendment of the execution petition when the requirements of Rules 11 to 14 of Order 21 are not complied with. In other words they contended that Order 21, Rule 17, C. P. C. deals with formal amendments, and does not empower the Court to amend the execution petition on any substantial point, as for example by substituting new properties sought to be attached and sold in execution.

Order 21, Rule 11 prescribes the details which are to be furnished by the decree-holder in an application for execution of a decree. Clause (j) of Sub-rule (2) of Rule 11 of Order 21 requires the decree-holder to state

'the rriode in which the assistance ..... is required, whether (i) by the delivery of any property specifically decreed; (ii) by the attachment and sale, or by the sale without attachment, of any property; (iii) by the arrest and detention in prison of any person; (iv) by the appointment of a receiver; (v) otherwise, as the nature of the relief granted may require.'

Order 21, Rule 12 requires that

'Where an application is made for the attachment of any movable property belonging to a judgment-debtor, but not in his possession, the decree-holder shall annex to the application an inventory of the property to be attached, containing a reasonably accurate description of the same.'

Rule 13 of Order 21 provides that:

'Where an application is made for the attachment of any immovable property belonging to a judgment-debtor, it shall contain at the foot.

(a) a description of such property sufficient to identify the same and, in case such property can be identified by boundaries or numbers in a record of settlement or survey, a specification of such boundaries or numbers; and

(b) a specification of the judgment-debtor'sshare or interest in such property to the best ofthe belief of the applicant, and so far as he hasbeen able to ascertain the same.'

Order 21, Rule 14 authorises the Court to callupon the decree-holder to supply certified extractsfrom the registers of the Collectorate showing thenames of proprietors of any land which is soughtto be attached in execution of the decree. Thejudgment-debtors contend that if there be any de-fect in compliance with the requirements of Rules 11 to 14 of Order 21 in presenting the application forexecution of a decree, the decree-holder may, with the permission of the Court, amend the execution petition to remove such formal defects, but it does not entitle the decree-holder to amend the execution petition by substituting new properties to be attached and sold in execution of the decree.

2. The learned Subordinate Judge has given effect to this objection, as in his opinion the application filed by the decree-holder was not for a formal amendment which could be allowed under Order 21, Rule 17, C. P. C. and it was, according to him, not a fit case in which it was necessary for the Court to exercise the general powers to allow amendments to remedy defects, the application having been filed on the last day of the period of 12 years from the date of the decree, and it not having been presented in the form of a fresh application for execution of the decree.

3. The learned counsel for the appellant contends that the view taken by the learned Subordinate Judge is incorrect, and that in appropriate cases the Court has general powers to amend the execution petition by substituting new properties in the list of properties appended to the original application. He has relied upon a number of decisions of various High Courts in support of his contention.

The first case referred to by him is the case of -- 'Ram Sumran Prasad v. Ram Bahadur', AIR 1923 Pat 224 (A). In that case, an application for execution was filed on the 20th May of 1915, and in course of that execution certain properties were sold, but the sale-price did not satisfy the entire decree. Therefore on 11-7-1922, the decree-holder filed a petition before the executing court stating that certain amount was in deposit in another Court to the credit of the judgment-debtors, and he prayed that that sum ought to be attached and paid to the decree-holder in satisfaction of his debt. The Subordinate Judge rejected the petition on the ground that as one execution case in respect of the same decree was still pending, no fresh execution, petition in respect of the same decree could be entertained. Against this order the decree-holder moved the High Court in revision. Their Lordships Mullick and Kulwant Sahay JJ., who heard the revision, held that the view of the Subordinate Judge was wholly incorrect, and that the legality of concurrent execution had always been recognised in the Civil Procedure Codes of 1859, 1877 and 1882, though in practice it was not generally carried out. After referring to the various authorities on the point, their Lordships observed as follows:

'If, then, it is open to the decree-holder to file a fresh application, I see no reason why the Court cannot allow the amendment of the application already filed, while the execution case is still pending, by the addition of other properties to the list of properties sought to be attached. It is contended that Rule 17 of Order 21 contemplates that there can be no amendment after the execution case has been registered, but, in my opinion, there is no force in this contention and it has been so held in -- 'Gnanendra Kumar Rai v.Shayama Sunder Jen', AIR 1918 Cal 73 (B).'

With great respect we entirely agree with theobservations quoted above. The same question came to be considered in another Patna case of --'Brajasunder Das v. Radha Prasad Bhagat', AIR 1932 Pat 306 (C). Fazl Aji J. (as his Lordship then was) who delivered the judgment held that a Court is competent at any time before execution proceedings terminated and before the decree became barred by limitation, to allow a decree-holder whose application for execution of his decree was pending to amend the application by the addition of other properties to the list of properties sought to be attached; and the earlier Patna case (AIR 1923 Pat 224 (A)) was followed.

4. The learned Subordinate Judge has to a great extent placed reliance on a later decision of Patna High Court reported in -- 'Gajanand Sha v.Dayanand Thakur, AIR 1943 Pat 127 (D), wherein it was held that a decree-holder cannot be allowed, after the period of limitation to execute his decree against a property not mentioned in the execution application when originally presented by allowing him to substitute it in the execution petition. It is to be noticed that the judgment in this case was also delivered by Fazl Ali J. The facts in this case were entirely different, for, the application for the amendment by substitution of a new property was made after the period of limitation was over. In such circumstances no amendment can be allowed, for it would amount to evade the law of limitation but in cases where the period of limitation has not expired, there is no reason, as Fazl Ali J. himself had pointed out in the earlier case, why the decree-holder should not be permitted to amend the execution petition by substitution of a new property. If it is open to thedecree-holder to file a fresh petition, it stands to reason that the prayer for amendment should be allowed so as to relieve the parties of the necessity for fighting out simultaneous executions.

The view that such an amendment can be allowed has been again reiterated in a comparativelyrecent decision of the Patna High Court in --'Deonarain Singh v. Bibi Khatoon', AIR 1949 Pat401 (E), where it has been pointed out that aslong as the decree is still alive and the executionis not closed, the court is competent to allow thedecree-holder to amend the execution petition byaddition of other properties. Learned counsel forthe appellant has also relied on a decision of theCalcutta High Court in the case of -- 'NourangilalMarwari v. Sm. Charubala Dasi', AIR 1932 Cal766 (F). In that case in the original application forexecution, the decree-holder had made a statementthat he had been entitled to the properties by succession. Later on, he filed a petition for amendment by which he wanted to correct the earlierstatement, by saying that he had become entitledto them by survivorship. The objection was thatas this amendment was not covered by the expressterms of Order 21, Rule 17, C. P. C., it could not beallowed. Rankin C. J., who delivered the judgment examined the provisions of Order 21, Rule 17 andobserved as follows :

'Then it goes on to say that when the application is admitted a proper note is to be entered in the register and then the Court may order execution. Now, because the rule requires a preliminaryscrutiny of certain formalities before the petition can get upon the file it is actually argued thatthat means that after it has got upon the filed nobody can ever get his petition amended evenwith the leave of the Court a thing which is almost ludicrous as an argument.'

His Lordship further said:

'Under the Code procedure is intended to less rather than more formal in the executiona decree than in the case of the hearing ofsuit and the executing Court need not havefound difficulty in allowing him to amend hispetition.'

It is clear from the observations of Sir George Rankin C. J. that apart from the provisions of Order 21, Rule 17 the Court has inherent power to amend the execution petition provided of course on the date of the amendment, the decree is still alive, and not barred by limitation.

5. The learned Subordinate Judge has referred to a decision in -- 'Mahomedbhai Samuddin v. M. A. Dawoodhbhai & Co.', AIR 1938 Bom 405 (G), In that case the original execution petition did not contain the particulars of the property which was sought to be sold. Later on leave was given by the Judge in Chambers to amend the application by describing the property sought to be attached. Against this order of amendment there was an appeal, and it was held that in such circumstances the Court could allow the amendment. Their Lordships pointed out that under Order 21, Rule 17, the Court must ascertain that an execution petition complies with all the necessary requirements, but it was open to the Court at any time to allow an amendment in a proper case in order to cure any defect in the execution petition. Their Lordships further pointed out that even apart from this power under Rule 17 the Court can in its general powers allow such amendments.

I may also refer to a later decision of the Calcutta High Court in -- 'Shekendar Ali Meah v. Abdul Gafur', AIR 1942 Cal 306 (H), where it has been held that where an application for execution is in accordance with law and has been duly registered, the Court has discretion to allow the decree-holder to alter the list of properties, provided such amendment has not the effect of substantially altering the character of the execution proceedings.

6. On a review of the authorities referred toabove, we are of opinion that the Court has power,apart from the provisions of Order 21, Rule 17, C. P. C.to amend an execution petition by addition offresh properties to the list of properties appendedto the original execution petition provided the petition for amendment is filed before the expiry ofthe period of the 12-year limitation prescribed bySection 48, C. P. C.

7. For the reasons stated above, we allow the appeal and set aside the order of the learned Subordinate Judge and direct that the amendment should be allowed. As the opposite parties are not represented in this Court, there would be no order as to costs.

Panigrahi, C.J.

8. I agree.


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