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Prosanna Kumar Chakerbutty and anr. Vs. Jotindra Nath Bose - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported inAIR1924Cal398,71Ind.Cas.1054
AppellantProsanna Kumar Chakerbutty and anr.
RespondentJotindra Nath Bose
Excerpt:
civil procedure code (act v of 1908), order xxi, rule 11 - execution application--previous application, date of not mentioned--defect whether material--cross decree, object of mentioning--omission, whether material. - .....on the ground that the date of disposal of two previous applications for execution as also certain cross-decrees obtained by the judgment-debtor against the decree-holder were not mentioned in the application.2. it appears that the present application for execution was made on the 12th january, 1920, no defect in the application was noticed at the time and the court directed it to be registered. subsequently, on the 17th july, 1920, the court held upon the objection raised by the judgment-debtor that the application for execution did not comply with the requirements of order 21, rule 11, as stated above.3. there is no doubt that material defects would vitiate an application for execution and the question, therefore, is whether there were material defects in the application.4. now, so far.....
Judgment:

1. This appeal is against an order dismissing an application for execution of a decree on the ground that the date of disposal of two previous applications for execution as also certain cross-decrees obtained by the judgment-debtor against the decree-holder were not mentioned in the application.

2. It appears that the present application for execution was made on the 12th January, 1920, No defect in the application was noticed at the time and the Court directed it to be registered. Subsequently, on the 17th July, 1920, the Court held upon the objection raised by the judgment-debtor that the application for execution did not comply with the requirements of Order 21, Rule 11, as stated above.

3. There is no doubt that material defects would vitiate an application for execution and the question, therefore, is whether there were material defects in the application.

4. Now, so far as the dates of disposal of the two previous applications are concerned, it appears that the date of disposal of the first application for execution was stated but not that of the second, though the numbers of execution cases were stated with regard to both the previous applications. The omission of the date of disposal of the second previous application for execution, we think, is not a material defect.

5. The omission to mention the existence of cross decrees, however, may be material defect. Order 21, Rule 11(2) {g) provides that the application shall contain, among other matters, particulars of any cross-decree passed before or after the date of the decree sought to be executed. It is stated that one of these cross-decrees in favour of the judgment-debtor has subsequently been set aside by the High Court on appeal; but at the time of the application for execution it had not been set aside.

6. However that may be, it is contended that the cross-decrees obtained by the judgment-debtor could not be executed for two reasons, first, that the decree in favour of the judgment-debtor was in his capacity as executor, whereas the decree in favour of the appellant was in his personal capacity; and, secondly, that the decree in favour of the judgment-debtor was passed by the Court at Chittagong and it could not be set off against the appellant's decree until the former decree was transferred to the Alipore Court.

7. We think that the first contention should prevail.

8. The rule as to satisfaction of cross-decrees is laid down in Order 21, Rule 18, Sub-section (3)(a) and it provides that the rule shall not be deemed to apply unless the decree-holder in one of the suits in which the decrees have been made is the judgment-debtor in the other and each party fills the same character in both suits. As stated above, the decree obtained by the appellant was in his personal capacity, whereas the decree obtained by the judgment-debtor was in his capacity as executor. Satisfaction could not, therefore, be entered upon the decrees. The object of mentioning cross decrees in an application for execution seems to be that the Court may be in a position f& see that the decree-holder in the one case does not take out execution without the cross-decree being set off. The principle can have no application to a case like this where the decrees could not possibly have been set off against each other. That being so, we think that in the present case the omission to mention the cross-decrees obtained by the judgment-debtor was not a material defect, for which the application for execution should have been dismissed.

9. The order appealed against must, therefore, be set aside and the case sent back to the lower Court for the decision of other objections raised by the judgment-debtor,

10. The appellant is entitled to costs of this Court. We assess the hearing fee at one gold mohur.

11. Future costs to abide the result.


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