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Gopal Sah Vs. Janki Koer and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtKolkata
Decided On
Judge
Reported in(1896)ILR23Cal217
AppellantGopal Sah
RespondentJanki Koer and ors.
Cases Referred and Pirjade v. Pirjade I.L.R.
Excerpt:
limitation act (xvof 1877), schedule ii, article 179,(4) - execution of decree, defective application for--application returned for amendment--civil procedure code (act xiv of 1882),sections 235 and 245. - .....whether execution of the decree obtained by the respondent is barred by limitation. admittedly the decree-holder is entitled to three years from 15th december 1890, when the judgment-debtors' property was put up for sale, and the sale was postponed as there were no bidders; execution was afterwards abandoned. on 7th october 1893 application for execution was next made. it was then found that the particulars required by section 235 of the code had not been given, and the application was returned for amendment, one week being allowed' for that purpose after the re-opening of the courts on the termination of the vacation, that is, one week from the 30th october 1893. the decree-holder did not comply with the order, and it was not until 10th january 1894 that he made a fresh application in.....
Judgment:

Prinsep, J.

1. The matter raised in this second appeal is whether execution of the decree obtained by the respondent is barred by limitation. Admittedly the decree-holder is entitled to three years from 15th December 1890, when the judgment-debtors' property was put up for sale, and the sale was postponed as there were no bidders; execution was afterwards abandoned. On 7th October 1893 application for execution was next made. It was then found that the particulars required by Section 235 of the Code had not been given, and the application was returned for amendment, one week being allowed' for that purpose after the re-opening of the Courts on the termination of the vacation, that is, one week from the 30th October 1893. The decree-holder did not comply with the order, and it was not until 10th January 1894 that he made a fresh application in proper form attaching to it his former incomplete application. If this be regarded as a fresh application, execution is barred by limitation. The Subordinate Judge has held that execution is not barred, and on appeal the District Judge has affirmed that order.

2. The Sub-Judge has found that the defects in the application of October 7th, 1893, were 'not of such a serious nature as to vitiate that application,' and under the authority of Rama v. Varada I.L.R. 16 Mad. 142 he has held that execution can proceed on that application, though when it was made, by his order of 7th October 1894 requiring it to be amended he practically held that it was not a proper application on which proceedings in execution could be taken. One of the errors committed by the decree-holder was in misstating the, amount of his decree in a lesser sum than he was given, and the Sub-Judge has consequently limited the execution to that smaller sum. If that had been the only defect the decree would have been capable of being executed for the smaller sum. But in other respects, which it is unnecessary to mention, the application failed to comply with the requirements of Sections 235, 236, 237 and 238 applicable to the case.

3. The District Judge on appeal affirmed the order of the Sub-Judge on the ground that, as the application of October 7th, 1893, was not rejected by an order passed under Section 245 on default of the decree-holder to put in an amended application within the time allowed, that application should be held good.' In this respect the District Judge has followed Fuzloor Ruhrnan v. Altaf Hossen I.L.R. 10 Cal. 541.

4. There are no reported cases which go so far as the case before us. There are some cases in which the High Courts have held that when an amendment is ordered under Section 245, and it is not made within the prescibed time, if the application is still before the Court of execution without an order disallowing or rejecting it, the Court is competent to act on that application on an amendment made subsequently and beyond the time fixed by its order, and it has also been held that an application to execute, though it did not fulfil the requirements of the law in regard to details, if the defects were only of a formal character it could still be regarded as an application made in accordance with law within the terms of Article 179, Schedule II of the Limitation Act of 1877- Rama v. Varada I.L.R. 16 Mad. 142.

5. In Syud Mahomed v. Syud Abedoollah 12 C.L.R. 279 the learned Judges observed: 'The Sub-Judge should have dismissed or rejected the application as it is not in proper form. Had he done so the decree-holder would in all probability have presented a proper application within time, but as the Sub Judge made no order finally disposing of the application of 26th September 1879, the decree-holder was led to believe that the application was still pending on the file of the Court, and having regard to the words of the order was capable of amendment.' It was accordingly held that the petition amending the original application for execution was a 'continuation of execution proceedings commenced, however informally, on 26th September 1893,' and consequently was not barred by limitation.

6. The case of Fuzloor Ruhman v. Altaf Hossen I.L.R. 10 Cal. 541 followed that case. Mitter, J., in delivering the judgment of the Court, expressed himself in these terms: 'Although the facts of that case '(the case last mentioned)' are not exactly similar to those of the present, yet the principle upon which that decision proceeds seems to us to be applicable here. The only difference that we can find in the facts is that in the case under consideration there was originally an order requiring the appellant to amend the application within four days, whereas in the case cited there was no limit fixed by the Court requiring the petitioner to amend the application. There is also another difference in the facts, viz., that in the case now before us the petition was actually returned to the vakil for amendment, while in the case cited the petition always remained on the file of the Court But these are differences upon points which are not essential. The principle upon which the decision cited proceeded was that as it was the duty of the Court to dismiss the application when it found that it was informal, and as the Court did not so dismiss it the decree-holder ought not to suffer for the omission on the part of the Court to dismiss the application; and the reason assigned for this is that if the Court had done its duty and dismissed the application the decree-holder might have put in a proper application on the next day Applying the same principle here, if on the 19th of January, which in 'that case was within time, or on the expiration of four days from that date the application had been refused, the decree-holder would have been in time to make a fresh application in proper form. Therefore, it seems to us that the Court not having dismissed the application on the expiration of the four days allowed by it, and allowed the petition to remain on the file, the case comes within the purview of the decision cited.'

7. The two cases are so far different that when the order for amending the application for execution was made in the last case, if the application was not' capable of execution, it was barred by limitation. The application made on 19th January 1882: the decree having been passed in the month of February 1879, so that it was made only about one month before it would have been barred by limitation. An order to amend it within four days was passed on the 19th January, but was not complied with, and no other order was passed until 21st September when, instead of rejecting it the Court returned it for amendment within eight days, and it was presented in proper form on the following day. No doubt up to the 21st September the principles upon which the High Court proceeded in Syud Mahomed v. Syud Abedonllnl 12 C.L.R. 279 might be applied, but the Court had not then a proper application on which it could act, and with every respect to the learned Judges who heard the case on appeal it seems to me that the only order that could be passed was to reject the application. The Court was not competent by an order under Section 245 returning the application for amendment to extend he period allowed by the law of limitation. If no action had been taken on the application for execution, it should have been rejected and that this was so is shown by the order requiring it to be amended. It was nor an application in accordance with law, and therefore it did not come within Art 179 (4), and therefore it was barred.

8. This was held in the case of Asgar Ali v. Troilokyanath Ghosp I.L.R. 17 Cal. 631 by a Full Bench of this Court. I.L.R.

9. I am therefore of opinion that the application of October 7th 1893 is not an application made in accordance with law within the terms of Art 179 (4) Schedule II of the Limitation Act, 1877, for it did not comply with the requirements of the law m regard to the details which the law directs that-application for execution shall contain. The Subordinate Judge before When that application was made so considered it, for he returned it for amendment The application was taken back by the decree-holder, and as no appeal was made against that order its correctness cannot now be impugned nor is the Sub-Judge now competent to find that it was an application made in accordance with law, because its defects were not of so serious a nature as to vitiate that application. Nor can the nature of the defects be now taken into consideration. It was not an application in accordance with law because it did not fulfil the requirements of the law. No Court can do otherwise than deter mine that fact. To find that what the law requires on matters of form need not be complied with to make an application one in accordance with law, seems to me to allow a transgression of the law, and yet to find that it has been complied with. I am aware that in Rama v. Varada I.L.R. 16 Mad. 142 a different opinion has been expressed, but with every deference and respect for the learned Judges of the Madras High Court, I cannot agree with them in their interpretation of that law. The Allahabad High Court has, on the other hand, held in Kifayat Ali v. Ram Singh I.L.R. 7 All. 359 a case which is on all fours with the case before us-that when an informal application for execution has been returned for amendment under Section 245, 'what has been done in the matter by the decree-holder has been undone by him, and the proceeding became to all intents and purposes as though no application had been put in.' A dissent is there expressed from the case of Ramanandan v. Periatambi which has been already referred to. A similar view of the law has been expressed by the Bombay High Court in Pir Jade v. Pir Jade I.L.R. 6 Bom. 681. I conour in these judgments, and I am unable therefore to accept the view of the law expressed, either by the Court of First Instance or by the District Judge on appeal, which hold that execution is not barred. The orders of all the Courts must be therefore set aside, and the judgment-debtor must receive his costs in all the Courts.

10. The result may be regarded as unfortunate, but I am bound to administer the law as I find it, and the term allowed by the law of limitation is ample for proceedings to execute a decree.

Ghose, J.

11. The question raised in this appeal is whether the application of the 7th October 1893, which was returned for amendment, can be regarded as an application for execution within the meaning of Article 179 of the Second Schedule of the Limitation Act, so as to save the decree from being barred by limitation. Rightly or wrongly, the Court before which this application was presented considered (so it is to be gathered from the order) that the application was one which could not be admitted under Section 245 of the Code of Civil Procedure, by reason of certain omissions and mistakes in regard to some of the particulars which are required to be inserted by Section 235, and it accordingly returned the petition for amendment within a certain time appointed. The petition was not, however, again presented to the Court with the required amendments within the time allowed, and it was not until after the expiry of the period of limitation that the present application, dated the 10th January 1894, annexing that of the 7th October 1893, with the amendments was made.

12. Section 245 (first para.) of the Code enacts that 'the Court on receiving an application for the execution of a decree shall ascertain whether such of the requirements of Sections 235, 236, 237 and 238, as may be applicable to the cage, have been complied with, and if they have not been complied with, the Court may reject the application, or may allow it to be amended then and there, or within a time fixed by the Court. If the application be not so amended it shall be rejected.'

13. In the case before us, the decree-holder not having complied with the order of the Court within the time appointed, it was the duty of the Court to reject the petition of the 7th October 1893. But the petition itself was not before the Court after the order of the 7th October had been made, and therefore the Court was not in a position formally to record the order of rejection. As I have already said, rightly or wrongly, the Court considered that the petition in question was one which could not be admitted, and it accordingly returned it for amendment. This order was an appealable order (section 588). The decree-holder did not appeal, but accepted the order as a good order, and took back the petition for amendment. And after this, if he did not comply with the order of the Court within the time appointed for amend merit, I do not see how it can now be held that the petition of the 7th October 1893 should be regarded as a proper application. The Judge of the Court below holds that the Court should have rejected it under Section 245, and that until such order of rejection is made, 'the application should be held good, and within the meaning of Section 245.' I am unable to accept this view as correct, because if it was the duty of the Court to reject the petition, and if by reason of the petition not being in the hands of the Court it was not in a position to record that order, I cannot understand how it can be held that the petition should be regarded as a petition within the meaning of Section 245, it having already been determined that it could not be admitted under that section.

14. In the case of Asgar Ali v. Troi lokyanath Ghose I.L.R. 17 Cal. 631 decided by a Full Bench of this Court, where an application for execution, though made under Section 235, did not contain a list of properties to be attached and sold, as required by Section 237, and where no time was allowed by the Court for amendment, and where after it was admitted and registered, and after the period of limitation prescribed by law had expired the defect was rectified by a list of properties being put in, it was held that the application was defective, as not complying with the provisions of Section 237, and as it was not amended within due time or under the provisions of Section 245, the decree-holder was barred notwithstanding the further application supplying the particulars required by Section 237. There the application was not rejected under Section 245; on the contrary it was admitted and registered, and yet it was held that the application could not be regarded as an application which could save the decree from being barred by limitation.

15. It seems to me that the principle upon which that case was decided equally applies to this case.

16. The learned Vakil for the decree-holder has among others referred us to two cases decided by this Court. In Syud Mahomed v. Syud Abedullah 12 C.L.R. 279 the facts were that an application for execution of a decree was made within time, but not in the form prescribed by the Code: the Court instead of dismissing it made an order, the effect of which was to allow that application to remain pending on the file until the decree-holder should choose to amend it : a subsequent petition was presented rectifying the said application, and the contention was that the application should be regarded as a nullity, and therefore the subsequent petition was barred by limitation. This contention was overruled upon the ground that the Court having not rejected or dismissed the application the decree-holder was led to believe that it was a pending application, that having regard to the wording of the order it 'was capable of amendment,' and that in the circumstances the petition subsequently presented must be taken to be a continuation of the proceedings already commenced.

17. I do not think that that case has any real application to this case. There the application was neither rejected nor returned to the decree-holder for amendment; but the Court allowed it to remain on its file as a pending application. Here the application was practically disposed of on the same date it was presented and was returned to the decree-holder, evidently on the ground that it was not a proper application.

18. In the case of Fuzloor Ruhman v. Altaf Hossen I.L.R. 10 Cal. 541, it would appear that the application for execution was made in proper time but not in the form prescribed by the Code; an order was made by the Court directing the decree-holder to amend the application within a certain time appointed; that order was, however, not carried out; but notwithstanding this, the application remained on the file of the Court until more than three years had expired from the date of the decree, and then it was returned for amendment within a given period : the amendment was made within that period, and the application was again placed on the file of the Court. This Court adopted the principle of the ruling in the case of Syud Mahomed v. Syud Abedoollah 12 C.L.R. 279, and held that it was the duty of the Court to dismiss the application when the first order granting the decree-holder a certain time to amend the petition was not complied with, for if that had been done, the decree-holder would have been in time to make a fresh application, and that the Court having allowed the petition to remain on the file undisposed of, and the amendment having been afterwards made, the execution of the decree was not barred by limitation.

19. That case also in my opinion has no application to the facts of this case now before us, and I observe that both of these cases were quoted in the course of the argument in the case of Asgar Ali I.L.R. 17 Cal. 631; and it may be well doubted whether the principle upon which they were decided was accepted by the Full Bench.

20. The learned Vakil for the decree-holder further relied upon the case of Rama v. Varada I.L.R. 16 Mad. 142. That case is no doubt in point, but it seems to be opposed to the principle upon which the Full Bench case of Asgar Ali v. Troilokyanath Ghose was decided by this Court. Moreover, I find that both the Allahabad and Bombay High Courts have adopted views contrary to that which was expressed by the Madras High Court in that case, as also in an earlier case Ramanandan v. Periatambi I.L.R. 6 Mad. 250. [See Kifayat Ali v. Ram Singh I.L.R. 7 All. 359 and Pirjade v. Pirjade I.L.R. 6 Bom. 681].

21. I do not think that we are now called upon to express any opinion upon the question whether the application of the 7th October 1893 was rightly returned by the Court for amendment. But if it be necessary to express an opinion on the matter I should be disposed to hold that the application was not in accordance with Section 235 of the Code. I find that in column 6 of the tabular statement (section 235), where the particulars of the previous application for execution with their result are required to be given, the petition of the 7th October 1893 mentioned a previous application of the 10th February 1887, which was stated to have been struck off. It then referred to a subsequent application of the 21st July 1890, and it was stated that after certain steps had been taken it was struck off in December 1890. The particulars, as mentioned, were clearly defective, and unless the proceedings taken upon the petition of the 10th February 1887 were mentioned, and the date when they terminated, and unless the intermediate applications between the 10th February 1887 and 21st July 1890 were specified (particulars which were afterwards inserted when the application of the 10th January 1894 was made), it would be impossible for the Court to say that the application of the 7th October 1893 was not barred by limitation, and that proceedings might rightly be taken upon it.

22. In framing Section 235 the Legislature had apparently in view that the application should be such upon which the Court would be justified in taking action, and therefore Section 245* provides that the Court should, on receiving an application, ascertain whether the requirements of Section 235, &c;, have been complied with.

23. I do not think that the defects in the application of the 7th October 1893 were of no importance as the Courts below seem to think.

24. Upon all these grounds I agree with my learned colleague in holding that the present application of the 10th January 1894 is barred by limitation, the previous application of the 7th October 1893 being not a proper application within the meaning of Article 179 of the Limitation Act.

* Procedure on receiving application for execution of decree.

[Section 245: The Court, on receiving an application for the execution of a decree, shall ascertain whether such of the requirements of Sections 235, 236, 237, and 238, as may be applicable to the case, have been complied 'with; and, if they have not been complied with, the Court may reject the application, or may allow it to be amended then and there, or within a time fixed by the Court. If the application be not so amended, it shall be rejected.


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