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Sunder Rai and ors. Vs. Tarachand and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberCivil Exe. First Appeal No. 18 of 1956
Judge
Reported inAIR1962Raj161
ActsCode of Civil Procedure (CPC) , 1908 - Sections 73 - Order 21, Rules 2, 11 and 11(2); Limitation Act, 1908 - Schedule - Article 182
AppellantSunder Rai and ors.
RespondentTarachand and ors.
Appellant Advocate Hukmichand Jain, Adv.
Respondent Advocate Chand Mal Lodha, Adv.
DispositionAppeals dismissed
Cases Referred and Ghanaya Lal v. Punjab National Bank Ltd.
Excerpt:
.....the mode of execution in one or the other of the ways mentioned in order 21, rule 11 (2)(j) and as rateable distribution is not mentioned as one of the modes for execution of a decree in order 21, rule 11(2)(j), the description of rateable distribution as the mode of execution should be regarded as not in accordance with the provisions of law and for this reason the first execution application was defective and was not good in law so as to save limitation. moreover, the fifth mode described in rule 11 is very wide in its scope and a prayer for rateable distribution may well be considered to fall within its ambit. in this way a prayer for rateable distribution may very well he considered to be a mode of execution for the nature of the relief granted in such a case admits of such a..........an objection petition filed by the appellant and holding that the execution petition of the decree-holder dated the 10th of july, 1954 was within limitation.2. the facts leading to this appeal may be briefly described as follows:tarachand, kundanjnal, sons of jetha, kundan-mal son of megha and chunilal son of chaina, obtained a decree for an amount of rs. 13,429/8/-against jeevraj on tthe 29th of april, 1949 from the court of the district judge, balotra. the first execution petition was made by the decree-holders on the 3rd of may, .1949 which was dismissed on the 6th of february, 1954 and the second execution petition was presented by tarachand in the court of the civil judge, jalore on the 10th of july, 1954. an objection petition was filed by the judgment-debtor on the 12th of.....
Judgment:

Ranawat, J.

1. This is a civil execution first appeal by Jeevraj judgment-debtor from an order of the senior Civil Judge, Jalore, dated the 1st of September, 1956, dismissing an objection petition filed by the appellant and holding that the execution petition of the decree-holder dated the 10th of July, 1954 was within limitation.

2. The facts leading to this appeal may be briefly described as follows:

Tarachand, Kundanjnal, sons of Jetha, Kundan-mal son of Megha and Chunilal son of Chaina, obtained a decree for an amount of Rs. 13,429/8/-against Jeevraj on tthe 29th of April, 1949 from the Court of the District Judge, Balotra. The first execution petition was made by the decree-holders on the 3rd of May, .1949 which was dismissed on the 6th of February, 1954 and the second execution petition was presented by Tarachand in the Court of the Civil Judge, Jalore on the 10th of July, 1954. An objection petition was filed by the judgment-debtor on the 12th of January, 1956. It, was pleaded by him that the Execution petition was time-barred and that the decree was therefore not executable. The learned Civil Judge rejected the objection petition of the judgment-debtor and held that the second execution petition was within limitation. The judgment-debtor has come in appeal to this Court. The grounds that were urged On the part of the judgment-debtor in the lower court were (1) that in the execution petition dated 3-5-49 the names of the decree-holders were not described properly inasmuch as instead of describing the names Of the four decree-holders, the name of the firm Tara Chand Kundanmal was mentioned in column. No. 2, and (2) that the only prayer for execution in column no. 10 of the petition was for rateable distribution and the said prayer was not in accordance with tne provision of Order 21, Rule 11, C. P. C. and consequently the Mrs,, execution peUtiun was not a petition in accordance with law and it could not save Limitation. The appellant has added one more ground to the two grounds taken up by him in the lower court. It is urged on his behalf that the number of the suit in which the decree was granted was wrongly stated as suit No. 88 of 1948-49 when the correct number was 83 of 1948-49 and not the one mentioned by the decree-holder in the petition.

3. While this appeal was pending in this Court, the appellant Jeevraj died and the name of his widow Sunder Bai and his two sons Chandanmal and Balchand were substituted in place of the name of Jeevraj.

4. Ths learned counsel of the appellants has sought support from the decision of the Madras High Court in G. R. Naidu v. Y. VenKataswami Naidu, AIR 1940 Mad 215 on the point that misdescription of the number of the suit is an illegality and the application for execution cannot be considered to be in accordance with law in a case where the number of the suit in which the decree is granted has been wrongly described. On the point regarding misdescriptiun of the names of the decree-holders the learned counsel of the appellants has not referred to any decision in support of his contention, but he has urged that wrong description of the names of the decree-holders is contrary to the requirements of Order 21, Rule 11, C. P. C. and the execution petition should be considered not in accordance with law, because it suffers with the defect of misdescription of the names of the decree-holders. On the last point regarding defect in the description of the mode of execution, the learned counsel of the appellants has referred to the decisions in Balaji v. Gopal, AIR 1929 Nag 148, Arunachellam Chettiar v. Haji Sheik Meera, ILR 34 Mad 25, and Sital Bakhsh Singh v. Jang Bahadur Singh, AIR 1933 Oudh 75. He has contended that it is incumbent on the decree-holder to describe the mode of execution in one or the other of the ways mentioned in Order 21, Rule 11 (2)(j) and as rateable distribution is not mentioned as one of the modes for execution of a decree in Order 21, Rule 11(2)(j), the description of rateable distribution as the mode of execution should be regarded as not in accordance with the provisions of law and for this reason the first execution application was defective and was not good in law so as to save limitation.

5. Mr. Chand Mal has replied on behalf of the decree-holder respondents that the misdescription of the number of the suit in the first execution petition was occasioned on account of an error in the description of the number of the suit in the certified copy of the decree issued to the decree-holder and that the said misdescription was only at the most an irregularity. He has also urged that as the suit in which, a decree was passed was filed by the three partners who were members of a partnership firm and as the fourth partner was made a pro forma defendant the description of the decree-holders in the first execution petition was not erroneous, though it was not exactly similar to the description of the decree-holders as contained in the certified copy of the decree. On the last ooint he has stated that the description of the mode of execution in the first. execution petition could not be regarded as a' illegality and the execution petition in substance was in accordance with law. He has cited, the decisions in Gobardhan Dass v. Jang JJahadar, AIR ,1926 Oudh 016 and Ghanaya Lal v. Punjab National Bank Ltd., Lahore, AIR 1928 Lah 7 to show that the description of the rateable distribution as the mode of execution in an execution petition did not amount to an illegality and that the execution petition could not be considered to be invalid for that reason.

6. We have seen the certified copy of the decree which Was filed with the second execution petition presented by Tarachand. The number of the suit in that certified copy was at first written as 88/1948-49, and then it was crossed and the figure 83 was written above it. At what time the said correction was made is not clear from the perusal of the decree. However, there is room for the learned counsel to argue that the wrong description of the number of the suit in the first, execution petition was given on account of the erasure and over-writing in the certified copy. Even supposing that the number of the suit in the first execution petition was erroneous it may be noted that this by itself cannot be regarded to be an illegality so as to make the execution petition a non-entity in the eye of law. The observation in the case cited by the learned counsel of the appellants do not go to the lenght to which the learned counsel desires to read them. In that case an execution petition was presented to the court with a wrong number and it was returned to the decree-holder for correction of the said number within a period of seven days. The petition was then not re-presented within the period after correction and a second execution petition was drawn up and submitted and the previous execution petition was also annexed, to it. The subsequent execution petition was then registered as a petition for execution of the decree. When another execution petition was filed, it was contended that the previous petition, Which was returned for correction, should be considered for saving limitation for execution and it was in that background that the High Court of Madras held that the petition, which was returned for correction and which was never re-presented, could not be regarded to be an execution petition presented in accordance with law. Jn that case though the petition also contained a wrong number of the suit, it was, in fact, never re-presented to the court after correction within time, and it was annexed to the subsequent petition for execution without any prayer for condonation of delay. The judgment in AIR 1940 Mad 215 referred to above, is distinguishable and it cannot be regarded to be a decision on the point as canvassed by the learned counsel for the appellants. An error in giving the number of the suit may at the most be considered to be an irregularity and such a defecr cannot be regarded to be an illegality so as to make the execution petition invalid in the eye of law.

7. The learned counsel of the appellants has not controverted the faces stated by Mr. Chand Mal Ladha. Instead he has contended that toe names of the decree-holders, which were described in the first execution petition, did not tally with the names given in the title of the decree. In the execution petition the dtscription is Firm Jarachand Kundanjnal whereas in the decree the aajnes of the three plaintiffs Tarachauci Kundanmal s/o. Jetha and Kundanmal s/o. Megha nave been given and Chunjlal, who was impleaded one of the defendants, was also joined with the plaintiffs as a decree-holder. The decree is silent as regards the status or the position of the decree-holders inter se. It cannot thus be said whether the four decree-holders named in the decree constituted a partnership firm and they were granted a decree on account of the dealings of such partnership. In this view of the matter, we are not prepared to hold that the description in the execution petition is necessarily wrong. Even if the contention of the learned counsel of the appellants that there is some error in the description of the names of the decree-holders is accepted, the defect cannot be regarded to be such as to render the execution petition ineffective and not in accordance with Order 21, Rule 11, C. P. C. The irregularity is a minor one.

8. In the first execution petition, Tarachand wrote in the column provided for the description of the mode of execution that he may be allowed such amount as may be available to him by rateable distribution of the sale proceeds of the property of the judgment-debtor that was under attachment to case No. 103 of 1948-49. The argument of the learned counsel of the appellants is that the prayer for rateable distribution is not such a prayer as was contemplated under Order 21, Rule 11 (2)(j). The objection that has been raised by the appellants in this behalf appears to be highly technical. Order 21, Rule 11(2) requires certain particulars to be entered in the execution petition and one of the said particulars, with which we were concerned here. is described in Order Rule ll(2)(j) in the following terms :

(j) 'The mode in which the assistance of the Court 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 reliefgranted may require.'

The language of Rule 11 (2) (j). which has been reproduced above, shows that the various modes of execution described therein are not exhaustive and they are only illustrative. The last item refers to other modes of execution, which in Accordance with the terms of the decree, may be available to the decree-holder. This was a case of a money decree and under Section 73 of the . Code of Civil Procedure a decree-holder in whose favour a monev decree is passed is entitled to claim rateable distribution by majking an application for execution before ihe receipt of the assets and he is at liberty to seek the execution of his decree by way of rateable distribution also in addition; to other modes that may be open to him, The description of execution by claiming rateable distribution cannot, therefore, be regarded to be somthing not contemplated by law. In this view of the matter, the prayer of the decree-holder for rateable distribution, which has been specified in his first execution petition, cannot be regarded as something not warranted by law. The mode of execution, which has been described in the first execution petition, therefore, is aot such as to make that petition not in accordance with law. The decision in ILR 34 Mad 25, referred to above, which has been relied upon by the learned counsel of the appellants, is distinguishable for the reason that in that case though the decree-holder applied tor rateable distribution, he did not in facj; make an execution application as required by Order 21, Rule 11(2). It was for that reason that the Court held that a mere application for rateable distribution, which does' not comply with the requirements of Section 235, C. P. C. (corresponding to Order 21, Rule 11) in form or substance, cannot be considered to be an application for execution within the scope of Section 295 of the Code of Civil Procedure.

9. The next case, AIR 1933 Oudh 75, referred to above, is similarly distinguishable. In that case also no execution application was filed as required by Order 21, Rule 11(2) and a mere application for rateable distribution was made. On a suit by another decree-holder it was held that the defendant was not entitled to rateable distribution of the assets unless he had made an execution petition as required by Order 21, Rule 11(2). In the present case the execution application as required by Order 21, Rule 11(2) was in fact made and Jt was in that application that the decree-holder mentioned the mode of execution by claiming rateable distribution. The circumstances of the instant case are therefore distinguishable and the decision in Sital Bakhsh Singh's case, AIR 1933 Oudh 75 cannot help the case of the appellants The decision in AIR 1929 Nag 148, referred to above, supports the point that has been urged by the learned counsel of the appellants. It was observed in that case as follows:

'We are of opinion that an application that only prays for rateable distribution is not a valid application for execution within the meaning of Order 21, Rule 11, that Civil Procedure Code does not recognise an application for rateable distribution as such and that in order to obtain rateable distribution under Section 73, a decree-holder must have made an application for execution to the Court, praying for execution of his decree in one of the ways mentioned in Order 21, Rule 11, before the receipt of assets by the Court.'

10. We are in respectful disagreement with the decision in Balaji's case. The learned Judges in that case have regarded the list given in Order 21, Rule ll(2)(j) as exhaustive and. they have, therefore, held that unless one of the modes described therein is mentioned in the execution petition, such petition cannot be regarded as an execution petition. As observed earlier, we are of opinion that the modes described in Rule 11 are illustrative and cannot be regarded to be exhaustive. Moreover, the fifth mode described in Rule 11 is very wide in its scope and a prayer for rateable distribution may well be considered to fall within its ambit. The nature of the relief granted to the decree-holders was of a money decree and in such a case the decree-holders are entitled under Section 73 to claim rateable distribution. In this way a prayer for rateable distribution may very well he considered to be a mode of execution for the nature of the relief granted in such a case admits of such a particular mode of execution.

11. We may refer to a decision in AJR 1926 Oudh 616 cited above, in which the modes described in Order 21, Rule 11 have been considered to be illustrative and not exhaustive and a prayer for rateable distribution in an execution petition was regarded to be a good description in accordance with the requirements of Order 21, Rule 11. In that case a question of limitation was involved and it was held that an application for execution in which the mode of execution was described as rateable distribution was' a good execution petition in accordance ,with law and limitation was saved by such an application. The decision in Gobardhan Dass's case, AIR 1926 Oudh 616 was followed in AIR 1928 Lah 7, referred to above. We are in agreement with the views expressed in Gobardhan Dass's case, AIR 1926 Oudh 616. The first execution petition, in our opinion, in the instant case cannot be regarded to be bad jn law for the reason that rateable distribution was described as the mode of execution. That application saved the limitation for the second execution petition.

12. The court below, under the circumstances, was not wrong in holding that the second execution petition was not barred by limitation.

13. The appeal fails and is dismissed withcosts.


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