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T. Kameswar Rao and anr. Vs. Panasa Narayanamma and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtOrissa High Court
Decided On
Case NumberA.H.O. No. 12 of 1975
Judge
Reported in45(1978)CLT568
ActsCode of Civil Procedure (CPC) , 1908 - Order 3, Rule 1 - Order 6, Rule 15 - Order 21, Rule 11(2); Limitation Act, 1908 - Schedule - Article 182(5)
AppellantT. Kameswar Rao and anr.
RespondentPanasa Narayanamma and ors.
Appellant AdvocateY.S.N. Murty, Adv.
Respondent AdvocateS.C. Mohapatra, Adv.
DispositionAppeal allowed
Cases Referred(Kanhaiya Lal v. Panchayati Akhara
Excerpt:
.....1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. 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]. - he has declared in the verification certificate given at the foot of the execution petition that the facts stated in the execution petition were true to the best of his knowledge, information and belief (vide ext. krishna rao being acquainted with the facts of the case and wanted to be satisfied about the same. that apart, the execution petition was not dismissed on the ground that the person signing the verification had failed to satisfy the court that he was acquainted with the facts of the case......of the execution case on the ground that g. krishna rao had not been authorised by the decree-holder to file the execution case. on 30-3-59 the executing court directed the decree-holder to appear before a magistrate, first class and swear an affidavit that g. krishna rao was his power-of-attorney holder. as there was no compliance with the court's direction the execution case was dismissed for default on 10-7-59. on 25-6-62 the appellants filed execution case no. 59 of 1962, the original decree-holder having died in the meanwhile. the judgment-debtors respondents challenged the maintainability of the execution case on the ground that the previous execution application in execution case no. 95 of 1958 was not an application in accordance with law within the meaning of article.....
Judgment:

Mohanti, J.

1. This is an appeal by the decree-holders against an appellate order of a learned single Judge of this Court holding their execution application as barred by limitation. The decision of the learned single Judge is reported in ILR (1975) Cut 927 (Panasa Narayanamma v. T. Kameswar Rao).

2. T. Bhaskar Rao, the deceased father of the appellants, obtained a decree on 30-1-56 for recovery of possession of certain immovable property. On 6-10-58 Execution Case No. 95 of 1958 was filed by one G. Krishna Rao as the power-of-attorney holder of the said T. Bhaskar Rao. On 19-3-59 the judgment-debtors filed an application under Section 47, C.P.C. challenging the maintainability of the execution case on the ground that G. Krishna Rao had not been authorised by the decree-holder to file the execution case. On 30-3-59 the executing court directed the decree-holder to appear before a Magistrate, first class and swear an affidavit that G. Krishna Rao was his power-of-attorney holder. As there was no compliance with the court's direction the execution case was dismissed for default on 10-7-59. On 25-6-62 the appellants filed Execution Case No. 59 of 1962, the original decree-holder having died in the meanwhile. The judgment-debtors respondents challenged the maintainability of the execution case on the ground that the previous execution application in Execution Case No. 95 of 1958 was not an application in accordance with law within the meaning of Article 182 (5) of the Indian Limitation Act, 1908 and as such it did not save limitation. The learned Subordinate Judge found that the previous execution application was duly made in accordance with law. Accordingly he dismissed the judgment-debtors' objection. On appeal, the decision was reversed by the learned single Judge on the finding that the earlier execution application was not in accordance with law as the executing court doubted the authority of G. Krishna Rao to file the execution application and called for an affidavit from the decree-holder and the same not having been filed the execution case was dismissed for default. The correctness of this finding is assailed in this appeal.

3. Order 21, Rule 11 C.P.C. provides for the mode of application being made to the court. Sub-rule (1) of Order 21, Rule 11 provides for an oral application. Such an application can be made only by the decree-holder himself. Sub-rule (2) of Order 21, Rule 11 provides for cases other than those provided by Sub-rule (1) and it states that every application for the execution of a decree shall be made in writing, signed and verified by the applicant or by some other person who proves to the satisfaction of the court that he is acquainted with the facts of the case. Under Order 3, Rule 1 C.P.C. an application to any court may be made by a party himself or by his recognised agent or by a pleader appearing, applying or acting on his behalf. Under Order 6, Rule 15 it is provided that save as otherwise provided by any law for the time being in force, every pleading shall be verified at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the court to be acquainted with the facts of the case. From a cumulative reading of all the above provisions, namely, Order 6, Rule 15, Order 3, Rule 1 and Order 21, Rule 11 (2) of the Code it is clear that the legal requirements for an application for execution are that it has to be signed by the party himself or his recognised agent or by his pleader while the verification can be done by the party or one of the parties or by some person proved to the satisfaction of the court to be acquainted with the facts of the case.

4. The earlier execution petition in E. P. No. 95 of 1958 was signed by Shri G. Raghaba Rao, pleader for the plaintiff-decree-holder in the original suit. Along with the petition for execution, the said pleader had filed a memorandum of appearance to the following effect:--

'I am instructed by the decree-holder to file and conduct the entire execution proceedings on his behalf. I filed vaka-lat in the suit.' (Vide Ext. K).

The execution petition had been verified by Shri G. Krishna Rao, a son-in-law of the plaintiff who was looking after the litigation on behalf of the plaintiff. After the execution petition was registered and checked by the office, notice under Order 21, Rule 22 C.P.C. was Issued to the judgment-debtors who appeared and filed a counter on 19-3-59 challenging the maintainability of the execution case on the ground that G. Krishna Rao had no authority to file the execution petition. They did not, however, take the objection that G. Krishna Rao was not a person acquainted with the facts of the case and competent to sign the verification.

5. Order 21, Rule 11 (2) does not require that the execution petition must be verified by a person authorised by the decree-holder. It may be verified by any person acquainted with the facts of the case. Admittedly G. Krishna Rao is the son-in-law of the original decree-holder. He has declared in the verification certificate given at the foot of the execution petition that the facts stated in the execution petition were true to the best of his knowledge, information and belief (vide Ext. J). This necessarily implied that he was acquainted with the facts of the case within the meaning of Order 21, Rule 11 (2) C.P.C. On 30-3-59, the judgment-debtors were not ready for the hearing of their application and the executing court refused to adjourn the matter and rejected the counter of the judgment-debtors. Yet it called upon the decree-holder to swear an affidavit in proof of the fact that G. Krishna Rao was his power-of-attorney holder. There is, however, nothing to show that the court had doubts of G. Krishna Rao being acquainted with the facts of the case and wanted to be satisfied about the same. The question whether he had the power-of-attorney or not is quite different from the verificant being at person acquainted with the facts of the case.

6. It is undisputed that the pleader holding power for the decree-holder had signed the execution petition. If the petition containing the necessary particulars is signed by the pleader and it is verified by a person acquainted with the facts of the case it must be held to be a petition in accordance with law within the meaning of Article 182 (5) of the Indian Limitation Act. Even assuming, though not deciding, that there was no verification, in the facts and circumstances of the case it cannot be said that the execution petition was not in accordance with law, particularly when the judgment-debtors took no objection about the same and the execution petition was acted upon by the court. The learned single Judge relied on a decision reported in AIR 1936 All 17 (Raja Ram Gopal Singh v. Harish Chandra Lal) for the proposition that the provisions of Order 21, Rule 11 (2) regarding signing and verification of an execution petition are mandatory and the omission to comply with the same constitutes a material irregularity which, unless cured, renders the application as one not in accordance with law. In that case the application for execution was signed and verified 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 authorised 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 unauthorised person. The facts of the present case are entirely different. As already mentioned the execution petition was signed by the pleader who held power for the decree-holder. This fact was overlooked by the executing court when the direction for filing of the affidavit was made on 30-3-1959. G. Krishna Rao who signed the verification was a person acquainted with the facts of the case. He was never called upon to satisfy the court that he was acquainted with the facts of the case. That apart, the execution petition was not dismissed on the ground that the person signing the verification had failed to satisfy the court that he was acquainted with the facts of the case.

7. The view we take gains support from a decision reported in AIR 1966 Raj 44 (Bach Raj v. Bhanwar Lal). In that case the execution petition was filed by the lawyer who had power for the plaintiff-decree-holder in the trial court, but it had not been verified by him. It had also not been signed or verified by any of the decree-holders. The defect of want of verification was not noticed by the executing court and the application was acted upon. The judgment-debtor appeared and filed some objections, but he did not take the objection that the application had not been verified. In these circumstances, the execution petition was held to be in accordance with law for purposes of Article 182 (5) of the Indian Limitation Act Reliance was placed on a decision reported in AIR 1941 Pesh 103 (Sunder Singh Hira Nand v. Khilanda Ram) wherein it was held as follows:--

'...... An application is required under the provisions of Order 21, Rule 11 to contain certain particulars and to be signed and verified. It is the duty of the Court when it is presented to check the application to see that the necessary particulars are given under Order 21, Rule 17 and the Court is then empowered either to reject the application or require its immediate amendment or its amendment within a fixed time. It appears to me that if the Court takes none of these actions but acts upon the application, the Court must be deemed to hold the application to be in accordance with law.'

8. As mentioned earlier, the executing court directed the decree-holders to swear an affidavit in proof of the fact that he had executed a power-of-attorney in favour of G. Krishna Rao and due to non-compliance with the direction the execution case was dismissed for default. But there was no finding that the execution petition was not in accordance with law. In the absence of such a finding we had to look to the application itself to find out whether it was in accordance with law or not. In AIR 1931 Nag 154 (Gulamali v. Rajkumar Chatterji) a Full Bench held:--

'...... whether an application for execution that has been rejected must be regarded as not having been made at all for purposes of Article 182, Limitation Act, depends upon the terms of the order of rejection. If this order amounts to a finding that the application was not in accordance with law, the application is ineffectual to stay the running of limitation, if not, the Court must look to the application itself to see whether it is in accordance with law or not.'

In AIR 1949 All 367 (Kanhaiya Lal v. Panchayati Akhara) a Full Bench held:--

'An application to be in accordance with law must conform to the provisions contained in Rules 11 to 14 of Order 21, Civil P. C. Under Clause (2) of Rule 17 of Order 21 an application which fulfils the requirements of Rules 11 to 14, as may be applicable to the case, will be treated as 'an application in accordance with law.' The improper presentation of an application, which is otherwise in accordance with law, is, in my opinion, a mere irregularity and not an illegality. If such an application is admitted and registered and order for execution of the decree is made under Clause (4) of Rule 17, the application will be treated as an application made in accordance with law.'

9. It is thus clear that the question whether G. Krishna Rao had a power-of-attorney from the decree-holder was of no consequence and on the finding that the execution petition had been signed by the pleader for the decree-holder and had been verified by G. Krishna Rao who was acquainted with the facts of the case, the earlier execution case must be held to be an application in accordance with law. Therefore, the execution application which was dismissed for default on 10-7-59 served as a step-in-aid of execution and saved limitation within the meaning of Article 182 (5) of the Limitation Act.

10. In the view we have taken with regard to the limitation, the decision of the learned single Judge which had proceeded by placing undue importanceon the fact of want of authority to file the execution petition is liable to be set aside. The appeal is allowed with costs and the executing court is directed to proceed with the Execution Case No. 59 of 1962 in accordance with law.

Misra, J.

11. I agree.


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