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Vemuri Pitchayya Vs. Ankineedu Bahadur Zemindar Garu - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported inAIR1924Mad367; 76Ind.Cas.750
AppellantVemuri Pitchayya
RespondentAnkineedu Bahadur Zemindar Garu
Cases ReferredSattappa Chetti v. Jogi Soorappa
Excerpt:
civil procedure code (act v of 1908), section 100, order xxx, rules 13, 17 - small cause suit--execution proceedings--second appeal--defective execution application--defect not noticed by court--extension of lime. - - 538] i am, with due respect, inclined to think that, the words, on receiving an application for the execution of a decree' in rule 17 were not intended to make a party suffer tor the failure of the court establishment, which checks plaints and execution petitions on their presentation to at once notice all defects in any application that may be received and that these words do not preclude a court from making an order allowing a defect to he remedied at a. later stage, as it might well do if the words were 'on or after receiving......to order xxi, rule 17; and although, in the present code the word 'amended' has been altered into 'defect remedied' and clause (2) has been added, the calcutta high court continues to require a strict compliance with the formalities [see salimulla bahadur v. sainaddj, sarkar 22 ind. cas. 337 : 18 cri.l.j. 538] i am, with due respect, inclined to think that, the words, 'on receiving an application for the execution of a decree' in rule 17 were not intended to make a party suffer tor the failure of the court establishment, which checks plaints and execution petitions on their presentation to at once notice all defects in any application that may be received and that these words do not preclude a court from making an order allowing a defect to he remedied at a. later stage, as it might well.....
Judgment:

Spencer, J.

1. As the suit is one of a Small Cause nature and the claim is valued at Rs. 388 and odd, no second appeal lies even in the matter of execution [vide Mavula Ammal v. Mavula Maracoir 30 M. 212 : 17 M.L.J. 376].

2. We are asked to treat the appeal a as revision petition and to revise the order which directs execution to proceed against the appellant's immoveable properties on the ground that when the execution application was presented, no schedule of immoveable property belonging to the judgment-debtor was attached to it as prescribed by Order XXI, Rule 13, and that by the time this omission was supplied, 12 years had expired from.the date, of, the decree and execution had become barred under Section 48, Civil Procedure Code.

3. Order XXI, Rule 17, Civil Procedure Code, declares that, on receiving an application for execution, the Court shall ascertain whether the requirements of Rule 13 among others have been complied with and if they have not been complied with may either reject the application or fix a, time for the defect to be Remedied. Clause 2 states that in an application is so amended it shall be deemed to be an application in accordance with law and to have been presented on the date when it was first presented.

4. The Calcutta High Court, in a full Bench decision, Asgar. Ali v. Troilokya Nath Ghose 17 C. 631 : 8 Ind. Dec. 960, dissenting from the opinion previously expressed by Petheram, C.J., in J.C. Macgregor v. Tarini Churn Sircar 14 C. 124 : 7 Ind. Dec. 82, took a very strict view of section 245 in the Code of 1882 corresponding to Order XXI, Rule 17; and although, in the present Code the word 'amended' has been altered into 'defect remedied' and Clause (2) has been added, the Calcutta High Court continues to require a strict compliance with the formalities [See Salimulla Bahadur v. Sainaddj, Sarkar 22 Ind. Cas. 337 : 18 CRI.L.J. 538] I am, with due respect, inclined to think that, the words, 'on receiving an application for the execution of a decree' in Rule 17 were not intended to make a party suffer tor the failure of the Court establishment, which checks plaints and execution petitions on their presentation to at once notice all defects in any application that may be received and that these words do not preclude a Court from making an order allowing a defect to he remedied at a. later stage, as it might Well do if the words were 'on or after receiving.' Under Section 148 the Court would even have power to extend the time allowed for remedying the defect.

5. In Varadiah v. Rajakurnara Venkata Perumal 21 Ind. Cas. 782 : (1914) M.W.N. 137 : 14 M.D.T. 550 : 1914 20 M.L.J. 83 a Bench of this Court, in a decision to which I was a party, allowed a petitioner to amend his application even at the time of appealing, when without such amendment it would have been barred by the 12 years rule.

6. This was in harmony with the less rigid view taken by this Court in Sattappa Chetti v. Jogi Soorappa 17 M. 67 : 6 Ind. Dec. 46, where it was held that Section 1145 did not take away the power of the Court to amend the application for execution at any time before disposal.

7. I am of opinion, for these reasons, that there is no reason to exercise our power of revision in the present instance and I would dismiss the Civil Miscellaneous Second Appeal with costs.

Devadoss, J.

8. I agree.


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