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Bodo Jagannadho Naiko and ors. Vs. Harihara Mahapatro and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1935Mad885; 158Ind.Cas.829
AppellantBodo Jagannadho Naiko and ors.
RespondentHarihara Mahapatro and ors.
Cases ReferredChattar Singh v. Kamal Singh
Excerpt:
.....explantion (1); - appointment to state police service - failure of a person to disclose in the application form, either his involvement in a criminal case or pendency of a criminal case against him - effect? - held, the failure of a person to disclose his involvement in a criminal case, at the earliest point of time, when the application form is filled up, is fatal. his subsequent disclosure, whether before acquittal or after acquittal, will not cure the defect. in any case, the subsequent disclosure may not have any effect upon his selection, since his case will then fall under any one of the two explanations under clause (iv) of rule 14(b) and make him ineligible for the current selection or for all future selection depending on whether the acquittal is honourable or otherwise. --..........this connexion i must express my strong disapproval of the practice of striking off or lodging an execution application for statistical purposes. the sooner it is stopped the hotter it would be for the parties as well as for the courts executing decrees.2. it is much to be regretted, that although these observations were made by that learned judge in 1925, the practice still continues. the practice has bean the subject also of observations by a full bench of the allahabad high court in chattar singh v. kamal singh 1927 all. 16, where at p. 280 it is stated:and, in the second place, the order in its terms was not one justified by any law of procedure. it has been repeatedly observed in judgments of this court that an order 'striking off' a pending application for execution is not.....
Judgment:

Beasley, C.J.

1. In this appeal the lower Court has held that the proceedings in question were not barred by limitation by reason of the fact that they were merely a continuation of earlier proceedings. Those earlier proceedings culminated in the following order dated 1st February 1928 being passed by the Subordinate Judge of Berhampore viz. : 'Sale stopped for want of bidders. Execution petition is struck off the file.' This is yet another instance of an order being made which is wholly irregular and is not recognized by the law or by any code of procedure. It is an order which has been time and again condemned by this Court and by other Courts in reported decisions. It is necessary to refer to only two of them for this purpose. One of these is Pattannayya v. Pattayya 1926 Mad. 458, a decision of Devadoss and Waller, 33. There, Devadoss, J., whilst pointing out that there is no provision of law by which the executing Court could lodge a petition or record it or strike it off for what is commonly called statistical purposes and that the executing Court is bound to follow the procedure laid down in the Code and cannot dismiss the application for the reason that it is long pending, on p. 219 expresses his strong disapproval in the following words:

In this connexion I must express my strong disapproval of the practice of striking off or lodging an execution application for statistical purposes. The sooner it is stopped the hotter it would be for the parties as well as for the Courts executing decrees.

2. It is much to be regretted, that although these observations were made by that learned Judge in 1925, the practice still continues. The practice has bean the subject also of observations by a Full Bench of the Allahabad High Court in Chattar Singh v. Kamal Singh 1927 All. 16, where at p. 280 it is stated:

And, in the second place, the order in its terms was not one justified by any law of procedure. It has been repeatedly observed in judgments of this Court that an order 'striking off' a pending application for execution is not recognized by the law. This view was again expressed in a recent judgment of a Bench of this Court where it was said that an order directing an execution application to be 'struck off' was not an order sanctioned by any rule.

3. In this case it is quite obvious that the order 'striking off' the petition could not possibly have been an order intended to dismiss the petition. The sale was merely stopped for want of bidders and the Court would have no jurisdiction then and there to dismiss the execution petition upon that ground. It was clearly an order made quite irregularly for statistical purposes and I agree with the view of the lower Court here that the subsequent proceedings were merely a revival or continuation of those earlier ones which were irregularly stopped by being 'struck off.' For these reasons, this appeal must be dismissed with costs.

Cornish, J.

4. I agree.


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