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Smt. Sabitri Bala Mallick and ors. Vs. Alak Ranjan Paul and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberS.M.A. No. 17 of 1979
Judge
Reported inAIR1980Cal249,(1980)2CompLJ146(Cal)
ActsCode of Civil Procedure (CPC) , 1908 - Sections 151 and 153 - Order 21, Rules 17, 17(1), 17(4) and 24
AppellantSmt. Sabitri Bala Mallick and ors.
RespondentAlak Ranjan Paul and ors.
Appellant AdvocateShyama Prasanna Roy Chowdhury, ;Puspendu Bikas Satra and ;Deboprasad Mukherjee, Advs.
Respondent AdvocateManindra Nath Ghosh and ;Hazari Prosad Roy Chowdhury, Advs.
DispositionAppeal allowed
Cases ReferredShekenderali v. Abdul Rashid
Excerpt:
- .....dismissed on july 2, 1975.3. during the pendency of the second appeal in this court, the plaintiff-decree-holder filed an execution case, being title execution case no. 8 of 1969 before the munsiff, ghatal for realisation of decretal dues of the suit and of the first appeal by selling the movable properties of the judgment debtor. pursuant thereto a writ of attachment of movable properties was taken out on apr. 8, 1969 out it was returned unserved. satya sadhan, the judgment debtor, entered appearance in the execution case on apr. 23, 1969 and prayed for stay of the execution ease pending disposal of the second appeal. on june 19, 1971 the decree-holder filed an application for amending the execution petition by deleting the prayer for sale of movables and substituting therefor sale of.....
Judgment:

Monoj Kumar Mukherjee, J.

1. This Second miscellaneous appeal stems from a proceeding under Section 47 of the Civil P. C.

2. The facts and circumstances leading to the instant appeal are as follows :--

Fakir Chandra Pal, the predecessor-in-interest of the contesting respondents, instituted a Title Suit being No. 200 of 1964 in the file of Munsiff, Ghatal, seeking declaration of his title in respect of the lands described in the three schedules (Ka, Kha and Ga) of the plaint. He also prayed for confirmation of possession in respect of the lands described in schedules `Ka' and 'Kha' and recovery of possession in respect of schedule 'Ga' in the plaint, which is a part of 'Ka' schedule. The suit was decreed by the trial court on June 25, 1906. Satya Sadhan Mnlliek, the defendant No. 1 in the suit and the predecessor-in-interest of the petitioners herein, preferred an appeal against the same and the learned subordinate Judge, First Class Court. Midnapur, allowed the appeal and remanded the case back with necessary directions for rehearing. On remand the suit was again decreed by the learned Munsif, Ghatal on Mar. 29, 1968. Satya Sadhan Mullick again preferred an appeal and the Additional District Judge, Second Court, Midnapore, dismissed the appeal on Dec. 14, 1968. Aggrieved thereby Satya Sadhan preferred an appeal to this Court which was ultimately dismissed on July 2, 1975.

3. During the pendency of the second appeal in this Court, the plaintiff-decree-holder filed an execution case, being Title Execution Case No. 8 of 1969 before the Munsiff, Ghatal for realisation of decretal dues of the suit and of the first appeal by selling the movable properties of the judgment debtor. Pursuant thereto a writ of attachment of movable properties was taken out on Apr. 8, 1969 out it was returned unserved. Satya Sadhan, the judgment debtor, entered appearance in the execution case on Apr. 23, 1969 and prayed for stay of the execution ease pending disposal of the second appeal. On June 19, 1971 the decree-holder filed an application for amending the execution petition by deleting the prayer for sale of movables and substituting therefor sale of immovable properties of the judgment debtor and the amendment was allowed by an order passed on the self-same day. On July 6, 1971 an application for further amendment of the execution petition was filed by incorporating a prayer for recovery of possession of the properties described in `Ka', 'Kha and 'Ga' schedules of Title Suit No. 200 of 1964 without, however, serving any copy of the same upon the judgment-debtor. This application was allowed ex parte by the executing court by its order No. 9 dated July 15, 1971. On Aug. 6, 1971, the decree-holder filed another application for stay of the execution case and this application was also allowed ex parte on Aug. 11, 1971. Surprisingly however, the executing court by its order No. 14 dated Aug. 17, 1971 issued a writ for delivery of possession, in spite of the earlier stay order.

4. On Sept. 10, 1971 the judgment-debtor, through one of his employees, filed an application for stay of the execution case pending disposal of the second appeal filed in this Court. On the selfsame day another application was filed on behalf of the judgment-debtor stating that he (the judgment-debtor) was in jail on political grounds and the decree-holder was giving out that he had recovered possession of the suit lands. Accordingly a prayer was made to restrain the decree-holder from interfering with the possession of the judgment-debtor till further orders of the High Court. The executing court, by its order No. 15 passed on that day, asked the judgment-debtor to the an affidavit and noted in the order that the possession was delivered to the decree-holder in execution. On Sept. 17, 1971 the judgment-debtor filed another application, through his employee, stating that the judgment-debtor was actually cultivating the suit lands and praying for an order restraining the decree-holder from cutting paddy from the suit lands. This application was allowed by the court by its order No. 17 dated 17-9-1971 and the decree-holder was restrained from cutting paddy till Nov. 30, 1971. By a subsequent order dated Nov. 30, 1971 the stay was extended till Jan. a, 1972.

5. In the meantime, the High Court admitted the second appeal preferred by the judgment-debtor and issued an interim order directing the parties to maintain the status quo. This court also directed the judgment-debtor to deposit the decre tal dues within Feb- 1972. In terms of the said order the execution case was stayed and the judgment-debtor deposited the decretal dues. On Mar. 28, 1972 the executing court recorded an Order to the effect that the execution case stood disposed of on full satisfaction. The second appeal preferred in this court (S. A. 114 of 1970) was dismissed on July 2, 1975 and on July 12, 1975 the decree-holder filed an application before the executing court for vacating the order of stay earlier passed, in view of the dismissal of the second appeal. This application was allowed and the order of stay earlier passed was vacated on July 12, 1975. It having been brought to the notice of the executing court that by its earlier order dated Mar. 28, 1972 it disposed of the execution case on full satisfaction, the court vacated by his order No. 28 dated July 22, 1975, the order passed on July 12, 1975.

6. Thereafter, on Nov. 11, 1975 the judgment-debtet filed three applications in the said execution case. In the first of those applications the judgment-debtor prayed for setting aside the order No. 25 dated Mar. 28, 1972, by which execution case was disposed of on full satisfaction, on the ground that the execution case had earlier been stayed by the order of the High Court and as such it could not be disposed of, pending the second appeal. The second application was under Section 47 read with Section 151 of the Civil P. C. wherein it was contended that the decree-holder prayed for confirmation of possession in respect of 'Ka' and 'Kha' schedule lands and recovery of possession of 'Ga' schedule land and obtained decree for such relief and as such the decree-holder could not pray for recovery of possession of 'Ka' and 'Kha' schedule lands instead in execution of the said decree. The judgment-debtor accordingly prayed for setting aside the orders passed on and from 15-7-1971 to 10-9-1971. This application was registered as J. Misc. Case No. 82 of 1975. In the other application the judgment-del) tor prayed for temporary injunction restraining the decree-holder from interfering with his possession in respect of the suit lands till disposal of the misc. case.

7. After hearing the parties on those applications the executing court found that the plaintiff/decree-holder filed Title Suit No. 200 of 1964 for confirmation of possession upon declaration of title in respect of 'Ka' and 'Kha' schedule lands and for recovery of possession of 'Ga' schedule land and not for recovery of possession in respect of all the suit lands as prayed for by the decree-holder. The learned court further found that the decree passed by the trial court in Title Suit No. 200 of 1964 was void and without jurisdiction, being of the view that the suit was barred by Limitation so far as it related to declaration of title and confirmation of possession in respect of 'Ka' and 'Kha' schedule lands and that the decree-holder was entitled, in execution of the decree, to recover possession of 'Ga' schedule land only and not 'Ka' and 'Kha' schedule lauds. This relief was also not made available to the decree-holder as the executing court found that the 'Ga' schedule land was not properly described and the decree as such was in executable. The executing court also found that the orders earlier passed by the court from 15-7-1971 to 10-9-1971 were contradictory in nature and were also in violation of the order of stay granted by the High Court. For all these considerations the court by its order No. 46 dated 10-1-76 allowed the Misc Case holding that the decree-holder could not claim recovery of possession of 'Ka, 'Kha' and 'Ga' schedule lauds on the basis of the decree obtained in Title Suit No. 200 of 1964 and also set aside the orders Nos. 9 to 15 passed by it during the period from 15-7-1971 to 10-9-1971.

8. Aggrieved thereby the heirs of the decree-holder (who died in the meantime) preferred an appeal against the heirs of the judgment-debtor (who also died in the meantime) and the learned Sub-ordinate Judge, Second Court, Midnapore, allowed the appeal, set aside the order of the learned Munsiff and directed him to proceed with the execution case from the stage as it was prior to the passing of order No. 25 dated Mar. 28, 1972. In allowing the appeal the learned Judge found on perusal of the judgments passed in the suit and the appeal preferred therefrom that the plaintiff/decree-holder was awarded a decree for recovery of possession of the entire suit lands though the Suit was one for confirmation of possession of 'Ka' and 'Kha' schedule lands and for recovery of 'Ga' schedule land. The learned Judge further found that though the order No. 25 dated 28-3-1972 was clearly illegal as it was passed during the operation of the order of stay passed by this court, the orders Nos. 9 to 15 passed by the executing Court were valid and good orders. Hence this Second Misc. Appeal by the judgment-debtors.

9. Mr. Shyama Prasanna Roy Choudhuri, the learned Advocate appearing for the appellants, raised three points in support of the appeal. He firstly contended that the application made by the decree-holder for amending the execution petition, earlier filed for realisation of costs, by incorporating prayer for recovery of possession therein was not legally maintainable as it changed the entire character of the execution petition and the executing court was not justified in allowing such amendment. He next contended that even if such application for amendment was permissible in law, the learned Mun-sif was not justified in allowing the said amendment without giving an opportunity to the petitioner of being heard, more particularly when the judgment-debtor had already entered appearance. He lastly contended that on perusal of the judgment and the decree passed in the Title Suit, it will be crystal clear that the decree was for confirmation of possession in respect of 'Ka' and 'Kha' schedule lands and not for recovery of possession in respect thereof and as such the execution petition filed for such recovery of possession was not maintainable.

10. Mr. Ghosh, the learned Advocate appearing for the decree-holders/respondents, on the other hand, contended that there was no provision in the Civil P. C which debarred the court from allowing an amendment seeking recovery of possession in an execution petition filed for realisa-tion of decretal costs. According to Mr.) Ghosh, on the contrary Section 151 read with Section 153 of the Civil P. C. gave ample powers to the court to allow such amendments. Mr. Ghosh next contended that the decree which was sought to be executed was one for recovery of possession of the entire suit lands and as such the same was clearly executable. Mr. Ghosh however fairly conceded that the learned Munsif should have given opportunity to the judgment-debtor of being heard before allowing the application for amendment.

11. In elaborating his first contention Mr. Roy Choudhuri firstly referred to Rule 11 (2) and 17 of Order 21 of the Civil P. C. (hereinafter referred to as the Code) and submitted that an application for execution made under the former can be amended only in the manner and at the stage provided for under the latter and once steps were taken under Rule 24 for the execution of the decree there was no scope for further amendment of the execution application. In support of his contention Mr. Roy Choudhuri relied upon the Full Bench decision of this High Court in the case of Asgar Ali v. Troilokya Nath Ghose reported in (1890) ILR 17 Cal 631 and the Full Bench decision of the Allahabad High Court in the case of Janki Sahu Trust v. Ram Palat, reported in AIR 1950. All 580. These two decisions undoubtedly' support the contention of Mr. Roy Choudhuri that after process for execution is issued, Rule 17 of Order 21 cannot be invoked for amendment of the execution application.

12. The scheme of Order 21 and the provisions of Rule 10 to 24 thereof, which are relevant for our present purposes, make the position abundantly clear. Rule 10 speaks of the Court where an application for execution is to be filed. Rule 11 (2) specifies the particulars to be incorporated in an execution application to be filed in such Court. Rule 17 prescribes the duties to be performed by the Court on receiving the execution application. Sub-rule (1) thereof casts a duty upon the Court to scrutinise the application to ascertain whether such of the requirements of Rule 11 to 14, as may be applicable to the case have been complied with or not and directs the Court to give an opportunity to the decree-holder for remedying any defect that may be there within a time to be fixed by it. Sub-rule (4) says that after the application is admitted the Court should make necessary entries in the proper register and proceed with the execution in accordance with subsequent provisions of Order 21. In my considered view receiving of an application as envisaged under Sub-rule (1) and admitting of the same under Sub-rule (4) are two distinct things and stages of the proceeding and the amendments in respect of an application under Rule 17 can be made only before the same is admitted after scrutiny of the Court. Once those formalities are complied with, rule 24 comes into play to enable the Court to proceed with the execution. Having regard to the fact that in the instant case writ of attachment of movables was taken out on April 8, 1969 after the execution application was filed on Apr. 7, 1969, the provisions of Order 21, Rule 17 could not be invoked for allowing the application of the 'decree-holder for incorporating the prayer for recovery of possession.

13. It has next to be decided whether Sections 151 and 153 of the Code can be invoked, for amending an execution application after process has been issued under Order 21, Rule 24, as contended by Mr. Ghosh. Mr. Ghosh, in support of his contention, relied upon the cases of Rohini Kumar Rov v. Krishna Prasad reported in (1935) 39 CWN 1144; Kalipada Sinha v. Mahalaxmi Bank Ltd., reported in : AIR1966Cal585 and A C. Sanyal v. R. M. Moitra, reported in (1975) 79 CWN 546.

14. In the case of Rohini Kumar Roy (supra) an application for execution was put in by one of the decree-holders and the prayer was for execution not of the whole decree but in respect of the share of the applicant, that is to say, the application was not in the form prescribed by Order 21, Rule 15 of the Code. The judgment-debtor filed an application under Section 47 of the Code stating that the application was not in order and the execution could not proceed on the said application as one of the several joint decree-holders was not entitled to pray for execution in respect of his share of decree but was bound to pray for execution of the whole decree for the benefit of himself and the other decree-holders. The learned Munsif gave effect to that objection and dismissed the application. In the appeal the decree-holder prayed for amendment of his application for execution and be stated that be wished to proceed for the realization of the entire amount due under the decree for his benefit and for the benefit of the other decree-holders. The learned Subordinate Judge, who heard the appeal, allowed the same and remanded the case to the Court of first instance in order that execution might be proceeded with after necessary amendment of the application for execution. Against the said order the judgment-debtor preferred an appeal to this Court and contended that the learned Subordinate Judge had no power to direct the said amendment as the power of an executing Court in respect of amendments were defined in Order 21, Rule 17 and in no case applications for amendment should be allowed which did not fall within the scope of the said rule. In rejecting the said contention a Division Bench of this Court held that the Civil P. C. was not exhaustive and there was always the powers of the Court to make orders in the interest of justice.

15. It further held that Sections 151 and 153 of the Code entitled the Court to allow an amendment of a petition for execution of a decree in the interest of justice. Since the Court found that the objection was of a technical nature, it dismissed the appeal preferred against the amendment.

16. The above case was quoted with approval in the case of Kalipada Sinha (supra). In that case the decree-holder was one 'Mahalaxmi Bank Ltd.' and it was described as such in the execution petition. An application preferred by the decree-holder to the Central Government under Section 21 of the Indian Companies Act, 1956 for change of its name from 'Mahalaxmi Bank Ltd.' to 'Maha Luxmi Bank and Trading Co. Ltd.' having been allowed, and necessary certificate of incorporation in the new name having been issued by the Registrar of Joint Stock Companies Calcutta under Section 23 of the Companies Act, 1956, it made an application before the executing Court for amendment of the petition for execution by altering the Banks name to the new name in which it had been incorporated. This Court rejected the objection of the judgment-debtor for such amendment being allowed and the Court held, relying upon the judgment in the case of Rohini Kumar Roy (supra), that there was no substance in that contention.

17. In the case of A. C. Sanyal (supra) the decree-holders filed two applications for execution of a money decree with a prayer for arrest and detention of the judgment-debtor. After sometime each of the two decree-holders asked for assistance of the executing Court for realisation of the decretal sum by attachment and sale of immovable properties of the judgment-debtor though that prayer was not initially made in any of the two applications for execution. That prayer was allowed and when attachment of the immovable properties of the judgment-debtor was made, the decree-holders came to know that the said properties were subject to attachment in execution of another decree for a large amount. The decree-holders thereafter applied again before the executing Court for amendment of the execution applications seeking assistance of the court by attachment and sale of movable properties of the judgment-debtors. As the prayer was allowed the judgment-debtor preferred an application under Section 151 of the Code. The matter ultimately came up to this Court and this Court rejecting the contention of the judgment-debtor, held that the decree-holders, when filing applications initially might have asked for all or any of the five modes of assistance provided in Clause (J) of Sub-rule (2) of Rule 11 of Ordre 21, but he asked for assistance by only one of those several modes and that should not be any ground for rejecting his application for amendment seeking assistance in other modes. The court held that the executing Court had ample powers under Sections 151 and 153 of the Code to allow an amendment of petition for execution of a decree filed under Order 21, Rule 11 of the Code and relied upon the cases of Kalipada Sinha and Rohini Kumar Roy (supra).

18. The above decisions unequivocally lay down the proposition that amendments to execution application can be allowed in the interest of justice, even if-and also at a stage when -- Order 21, Rule 17 cannot be invoked, by invoking the provisions of Sections 151 and 153 of the Code. The question however still remains whether an amendment which seeks to change the nature and character of the execution application, can be allowed. As stated earlier, in the instant case the execution application initially filed was for realisation of the decretal dues and by the amendment the decree-holder prayed for recovery of possession of the suit lands. There is no manner of doubt that the amendment completely changed the nature and character of the execution application; and it was not one of those amendments which was of a technical nature or by which the decree-holder sought assistance of the Court for its execution in a different mode other than in which it was earlier prayed for as in the decisions cited above.

19. Mr. Ghosh however submitted that for the interest of justice such an amendment could be allowed as after all the execution application was filed to obtain the reliefs granted under the decree. Relying upon the Division Bench judgment in the case of Shekenderali v. Abdul Rashid reported in 45 CWN 903 : (AIR 1942 Cal 306), Mr. Roy Chaudhuri on the other hand contended that an amendment which would change the character and complexion of the execution proceeding could not be allowed.

20. In the case of Shekenderali (supra) the decree-holders obtained a decree for rent against the judgment-debtors on Feb. 8, 1924 amounting to Rs. 6,127-15. The decree was put into execution and by the time the last execution case was instituted on Feb. 6, 1936 the decree-holder had succeeded only in realising the sum of Rs. 250/-. In the last execution case they had asked for attachment of the movable properties of the judgment-debtors and as a last resort, for execution by arrest of the judgment-debtors. In the last column of the application was included a list of properties against which the decree-holders wished to proceed. During the course of the execution proceedings some of the judgment-debtors put forward a claim in their capacity as Mutwallis of the properties which were sought to be attached contending that those were exempt from attachment. This objection was allowed and thereafter the decree-holders filed a suit under the provisions of Order 21, Rule 63 of the Code. The sale of the attached movable properties of the judgment-debtor only resulted in the realisation of a small sum towards the decretal dues; so the decree-holders filed a further list of properties in the possession of the judgment-debtors and asked for the permission of the Court to proceed against those properties which were mentioned in a petition. The judgment-debtors filed an objection under Section 47 of the Code and after hearing the application the objection of the judgment-debtors was dismissed. Against the said order an appeal was preferred. It was urged on behalf of the appellant in that case that the application filed by the decree-holders for proceeding against the properties subsequently listed was in effect, a fresh application for execution, and was therefore time barred. To decide the point raised by the appellant Ezely, J. speaking for the Court dis cussed the earlier cases decided by this Court and observed as follows:--

'In my view, the following general principles may be deduced from the above cited cases. The law requires that a decree-holder in executing a decree should indicate in his application for execution the various modes of execution, which he wishes the Court to adopt. He should also as far as possible indicate the properties of the judgment-debtors against which execution proceedings should be taken, it being of course understood that he should not take execution proceedings against more items of property than he considers sufficient to satisfy his decree. Provided the application for execution is in accordance with Jaw and has been duly registered, if a subsequent application is riled for the purpose of amending the list of properties against which the decree-holder wishes to proceed, the Court is vested with a reasonable discretion to deal with the matter according to the circumstances of the case. Of course, to accept such a petition would result in effect in the amendment of the application for execution. Such an amendment should not be allowed, if it has the effect of substantially altering the character of the execution proceedings, but in a case such as that with which we are now dealing, in which it was discovered on the objection of the judgment-debtors themselves that execution could not proceed against the attached properties, I am of opinion that the Court would exercise a reasonable discretion in accepting a supplementary petition such as that which was filed by the decree-holders on the 10th November, 1938.'

21. As in my view the amendment that was allowed in the instant case, permitting the decree-holders to recover possession of the suit lands, has the effect of substantially altering the character of the execution proceeding which was for realisation of the decretal dues and since I am bound by the above decision, I must hold that the executing Court was not justified in allowing the application filed by the decree-holder on July 6, 1971 for amending the petition for execution by incorporating the prayer for recovery of possession of the suit properties. Consequently the order allowing the said application land all subsequent orders for such execution must be set aside. Since the first point of Mr. Hoy Choudhun succeeds the other questions involved in this appeal need not be decided. This judgment however will not preclude the decree-holder to file a fresh petition for execution, sought for by the amendment, if it would be otherwise maintainable in law.

22. In the result the appeal succeeds and the same is hereby allowed. The impugned judgment and order of the Additional District Judge are hereby set aside and those of the learned Munsif modified. The learned Munsif is directed to finally dispose of the execution case filed for realisation of the decretal dues, by passing an appropriate order directing payment of the decretal dues, which has since been deposited by the judgment-debtors, to the decree-holders. In the circumstances of the case there will be 110 order as to costs.


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