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Haridas Basak Vs. Raj Kumar Dey Sarkar and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1919Cal261(2),53Ind.Cas.111
AppellantHaridas Basak
RespondentRaj Kumar Dey Sarkar and ors.
Cases ReferredMina Konwari v. Juggat Setani
Excerpt:
civil procedure code (act v of 1908), section 151, order xxi, rules 11, 17 - execution of decree--application for execution proving infructuous---decree-holder not wishing to proceed, effect of--application to amend previous application, nature of--proceedings interrupted owing to erroneous order of court--inherent power of court, exercise of. - .....out of an application for execution, which was made on the 10th may 1015. in this application the decree-holder asked that the moveable property only of? the judgment-debtors might be attached. the decree-holder was unable to attach any moveable property, so on the 16th july he filed a petition asking that his application for execution might be struck off, with the intention of making a fresh application for attachment of the judgment-debtors' immoveables. in the meantime the judgment-debtors had filed a petition alleging that the decree had been satisfied, and as these proceedings were pending the munsif refused consent to the decree-holder's application to strike off the execution proceeding. thereupon the decree-holder on the 18th july filed an application to amend his original.....
Judgment:

1. This is an appeal against an order of the District Judge of Dacca re. versing the order of the Munsif of Munshigunge passed in execution proceedings The decree sought to be executed was passed on the, 31st July 1905. The present proceeding arises out of an application for execution, which was made on the 10th May 1015. In this application the decree-holder asked that the moveable property only of? the judgment-debtors might be attached. The decree-holder was unable to attach any moveable property, so on the 16th July he filed a petition asking that his application for execution might be struck off, with the intention of making a fresh application for attachment of the judgment-debtors' immoveables. In the meantime the judgment-debtors had filed a petition alleging that the decree had been satisfied, and as these proceedings were pending the Munsif refused consent to the decree-holder's application to strike off the execution proceeding. Thereupon the decree-holder on the 18th July filed an application to amend his original petition go as to proceed against the immoveable property of the judgment-debtors This was allowed by the Munsif, but his order was reversed on appeal by the learned District Judge The learned District Judge has held, relying on the Full Bench decision in Asgar Ali v. Troilokya Nath Ghose (3), that the original application for execution having been accepted and registered could not be amended.

2. On behalf of the appellant our attention has been drawn to the decision of a Bench of this Court to which one of us was a party, in the case of Gnanendra Kumar Rai Chowdhury v. Shayama Sunder Jen (1). In our opinion the facts of that case are distinguishable from the facts of the present case and although we think the District Judge's order is wrong, we do not base our decision on the authority of it that ruling. The principles, of the provisions of Order XXI, Rule 17 are explained in the judgment of Petheram, C. J., in Asgar Ali v. Troilokya Nath Ghose (3): 'Section 245' (of the old Code corresponding to Order XLI, Rule 17, of the present Code) 'gives a power of amendment before admission and registration, and I think by implication excludes any such power afterwards; indeed it is apparent that no such power is needed in the interests of justice, as if one application is defective, the applicant can at any time within the period of limitation present another in proper form.' In the present case this remedy of presenting a fresh application was withheld from the appellant by the order of the Munsif. That order ought not to have been passed. He should have allowed a fresh application to be filed and the execution proceeding to be struck off, and that would not have prevented him from continuing his enquiry into the judgment debtors' allegation at payment, which should have been treated as a separate proceeding under Order XLT, Rule 2. But though after the Munsif's order the decree-holder could not in form make a fresh application, in our opinion he did so in substance. When he had stated that he no longer intended to proceed with his original application, the proceeding arising out of that application ipso facto came to an end and it was rot necessary that there should be a further formal order by the Munsif striking off the application to terminate those proceedings. The Munsif, when the decree-holder filed the application to be allowed to proceed against the immoveable property, ordered that the petition should be made part of the execution petition. The consequence was that though that petition for amendment was not in the form prescribed by Rule 11, Order XXI, yet reading the two petitions together, all the informations required by Rule 11 and the subsequent rules relating to the information to be given in applications for execution were supplied to the Court.

3. The present case differs from the other cases on this point to which our attention has been drawn, as there is no necessity to invoke the aid of rub 17 and make the application of the 18th July date back to the 10th of May 1915, since a fresh application on the 18th July would not have been barred by limitation. Treating this application for amendment as an application for execution, the Munsif could have directed the execution to proceed and as stated above, we do not think that Order XXI, Rule 11, Civil Procedure Code, would be any bar. Also we think that the Munsif's Order can be supported from; another point of view. He justified his order by reliance on Section 151, Civil Procedure Code, which provides for the inherent power of the Court to make such order as may be necessary for the ends of justice or to prevent abuse of the process of the Court. We fully appreciate that one should be careful in applying this section, and we are in full agreement with the remarks to this effect made in more than one judgment in the case of Abdul Karim Abu Ahmed Khan. v. Allahabad Bank, Limited (6). But there are two special circumstances in this case which, in our opinion, would have justified our bringing Section 151, Civil Procedure Code, into operation had it been necessary. The first is, that the decree holder was prevented by an erroneous order of the Court from proceeding with the execution of his decree in accordance with law. The second is, that both the lower Courts have held that the judgment-debtors' plea of payment was dishonest and was made with the intention of delaying the execution proceedings until the decree became time-barred.

4. We, therefore, hold that the application for attachment of immoveable property filed on the 18th July 1917 should be treated as an original application in execution and allowed to proceed.

5. A point was taken before ns that the application is barred by limitation, because the second application for execution made on the 21st August, 1911 was made more than three years after the last previous step-in-aid of execution. Assuming that this was so, we think that the conduct of the judgment debtors in the subsequent execution case, in which they paid various sums in order to obtain postponements, barred them from raising the plea of limitation in the present execration proceeding. The case relied on by the lower Courts, Coventry v. Tulshi Pershad Narayan Singh 31 C. 822; 8 C. W. N. 672., supports their decision on this point. It is more applicable to the facts of the present case than the decision of the Judicial Committee of the Privy Council in Mina Konwari v. Juggat Setani (7) which was cited on behalf of the appellant.

6. The result is, that the appeal is decreed. The order of the District Judge is set aside and that of the Munsif is restored. The appellant will get his costs in this Court and in the lower Appellate Court. We assess the hearing fee in this Court at two gold mohurs.


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