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Sm. Rani Basanta Kumari Dasi and ors. Vs. Tulsi Charan Ghosh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1930Cal353
AppellantSm. Rani Basanta Kumari Dasi and ors.
RespondentTulsi Charan Ghosh and ors.
Cases ReferredChidambaram Chetti v. Theivanai Ammal A.I.R.
Excerpt:
- .....date when the order for amendment was made and that therefore, the amendment was in form.4. the learned judge, on appeal by the judgment-debtors, has held that there was no waiver because the objectors came forward with their objection within fifteen days after the date when the terms of the sale proclamation were finally settled and about four weeks before the date of sale. he also refers to the delay the decree-holder made which was about two months, to comply with the court's order for the issue of notices under order 21, rule 66. the learned judge did not deal with the question as to whether the execution of the decree was barred by limitation with reference to section 48(2), civil p.c., because he was of opinion that it was open to the decree-holder to present a fresh application.....
Judgment:

B.B. Ghose, J.

1. This is an appeal by the decree-holder against an order of the learned Additional District Judge of Howrah reversing an order of the Subordinate Judge rejecting an objection of the judgment-debtors to the execution of a decree by sale of certain properties, ordered by the Subordinate Judge,

2. The facts have been clearly stated by the learned Additional District Judge, in his judgment. A decree was passed on, 29th June 1911. An application for execution was filed on 31st July 1922 and some properties were attached. Some items of the properties attached were sold on 17th March 1927 and only Rs. 100 out of the decretal amount of over Rs. 4,000 was realized. On 22nd April 1927 the decree-holder applied for an amendment of his application for execution by putting in a large number of properties against which he intended to proceed in execution. This application, was allowed ex parte. It does not appear whether notice of this application was at all served upon the judgment-debtor or not. An order for attachment was made under Order 21, Rule 54, Civil P.C. of these properties which were included in the petition by reason of the amendment, and the properties were actually attached in May 1927. It has been round by the trial Court and has not been questioned in the Court of appeal below that the judgment-debtors had notice of the attachment and that it was properly made. On 6th June 1927 an order for notice under Order 21, Rule 66, Civil P.C., for settlement of the terms of sale was passed. This notice was also served upon the judgment-debtors and a sale proclamation was issued fixing 12th September for the date of sale of the properties attached. On 16th August 1927 an objection was made by the judgment-debtors to the sale of these properties on the ground that the amendment of the petition for execution on 22nd April 1927 ought not to have been allowed as the decree was barred by limitation.

3. The Subordinate Judge has held, upon the circumstances stated, that there was a waiver by the judgment-debtors of their objection, they not having appeared at any of the stages in the proceedings referred to above. He has also held that, as the decree-holder was prevented from executing the decree by force or fraud of the judgment-debtors under Section 48(2)(a), Civil P.C., the decree-holder's application for execution was not barred by limitation on the date when the order for amendment was made and that therefore, the amendment was in form.

4. The learned Judge, on appeal by the judgment-debtors, has held that there was no waiver because the objectors came forward with their objection within fifteen days after the date when the terms of the sale proclamation were finally settled and about four weeks before the date of sale. He also refers to the delay the decree-holder made which was about two months, to comply with the Court's order for the issue of notices under Order 21, Rule 66. The learned Judge did not deal with the question as to whether the execution of the decree was barred by limitation with reference to Section 48(2), Civil P.C., because he was of opinion that it was open to the decree-holder to present a fresh application for execution stating the facts, and bringing the application within Section 48 of the Code, and that it was not necessary for him to decide whether the amendment prayed for was within the period of limitation for execution of the decree with reference to Section 48, Civil P.C. The learned Judge by an elaborate discussion of the question with regard to the amendment held that the amendment ought not to have been allowed by the Subordinate Judge. From that order the decree-holder appeals.

5. I may state at once that I quite agree with the reasoning of the learned Additional District Judge that the amendment ordered by the Subordinate Judge was on erroneous grounds. The matter did not fall within Order 21, Rule 17, Civil P.C., and if the matter has stood there I should have been inclined to dismiss the appeal on the ground that the order for amendment bad been erroneously made. It is conceded by the learned advocate for the appellant that it would be wrong to order amendment of an application for execution after the execution is barred by limitation. But it is argued that in this case, having regard to Section 48(2)(a), Civil P.C., his application for execution was not barred at the time when the amendment was directed and that if his application for amendment of the execution petition be considered as a fresh application for execution he will be quite within his rights to execute his decree. That proposition seems to me to be quite right, but the learned Additional District Judge has not found the facts with regard to the application of Section 48(2) although the learned Subordinate Judge has found in favour of the decree-holder. It would have been necessary for us to remand the case to the lower appellate Court in order to come to a finding on that question if we did not choose to consider the evidence on that point ourselves here; but, having regard to the next proposition that I am going to consider, I do not think that that step is necessary.

6. It was argued before the learned Judge that the order of the Subordinate Judge allowing the amendment and attaching the properties and directing a sale in execution of the decree was res judicata. The learned Judge has rejected that argument on the ground that if the objection had been raised by the judgment-debtors in a subsequent proceeding the authorities show that the failure to appear and take objection in the present proceedings would be a complete answer to the objection. The learned Judge's opinion seems to be that if an objection is taken at a subsequent stage of the same execution proceeding to an order which has become final as not having been appealed against, that order can be questioned at any time and the principle of res judicata does not apply. In my judgment, this view is not correct having regard to the various cases decided by the Privy Council. It is true that the question in the case of Mungul Per shad Dichit v. Grija Kant Lahiri [1882] 8 Cal. 51, arose in a subsequent execution proceeding, but in the case of Ram Kirpal Shukul v. Mt. Rup Kuari [1884] 6 All. 269, the question whether a certain decree allowed mesne profits or not arose in an execution proceeding and was decided by the Court to the effect that mesne profits had been allowed. At a later stage of the execution proceeding the question was raised that the previous decision of the Court was erroneous. The Allahabad High Court, as a matter of fact, set aside the previous decision of the executing Court as, in the view of the High Court, upon a proper construction of the decree, mesne profits were not allowed. Their Lordships of the Privy Council reversed the decision of the High Court and they held that the previous judgment of the Judge executing the decree was final and could not be questioned at a later stage. In this case no doubt if any order was made without notice to the other side that order would not be binding upon the party on whom no notice was served. The order of amendment apparently was made without service of any notice, but subsequent to that in May 1927 it has been found that the properties now sought to be sold were attached, and the attachment was regularly made of which the judgment-debtors had notice and the judgment-debtors were prohibited from dealing with the properties in any way. No objection was taken to the order of attachment, nor was that order appealed, against. Subsequently it has been found that there was a notice served upon the parties for fixing the terms of the sale-proclamation of the properties attached. It is true it has been held in the case of Chidambaram Chetti v. Theivanai Ammal A.I.R. 1924 Mad. 1, that this notice is for a proceeding in the nature of an administrative action. In that case is was held that if a judgment-debtor did not put in appearance at the time when the sale-proclamation was settled that would not preclude the legal representatives of the judgment-debtor from taking an objection to the sale of a property on the ground that the property did not belong to the judgment-debtor. In that case it does not appear that any notice was served on the legal representatives when they were brought on the record; but in this case there is no doubt that the judgment-debtors were bound by the order of attachment which was made with regard to these properties. It was pointed out to us by the learned advocate for the respondents that in the case above cited in the Madras Court there was also an attachment of the property; but the learned Judges do not refer to that fact in any of the judgments nor do they refer to the fact that the order of attachment coupled with the direction on the judgment-debtors not to deal with the property attached is an order which is binding on the parties if not questioned by appeal or otherwise reversed. In my judgment, therefore, the decree-holder is entitled to proceed with the execution of the decree against the properties which were included in the execution application by the amendment, on the application of the decree-holder, on 22nd April 1927 although, in my judgment, the order of amendment was erroneous.

7. The order of the learned Additional District Judge will, therefore, be set aside and that of the Subordinate Judge restored with costs in this Court as well as in the lower appellate Court. The hearing fee is assessed at five gold, mohurs.

Bose, J.

8. I agree.


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