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Kalanand Singh and anr. Vs. Chandra Kishore Jha - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in7Ind.Cas.19a
AppellantKalanand Singh and anr.
RespondentChandra Kishore Jha
Cases ReferredShama Prasad Ghose v. Taki Mullik
Excerpt:
execution of decree - issue of notice--death of judgment-debtor--substitution of his heirs--limitation--continuation of the application--civil procedure code (act xiv of 1882), section 248--bengal tenancy act (viii of 1885), schedule iii, article 6--inherent power of court--adoption of special procedure--amendment of application, to take effect when. - .....and on the 3rd april the peon reported that the judgment-debtor was dead. on the 21st april the decree-holder applied for substitution of the heirs and notice was accordingly issued on them under section 248, civil procedure code. on the 3rd of july 1908, they filed the present objection contending that the execution was barred by limitation, more than three years having elapsed between the date of the decree and the application to execute as against them on the 21st april 1908.2. the decree being one for rent and below rs. 500, no second period of limitation is allowed under article 6, schedule iii, bengal tenancy act. this being so, the question arises whether the substitution made on the 21st april 1908 can be considered as a continuation of the application for execution of the 8th.....
Judgment:

1. The question which arises in this second appeal is not altogether free from difficulty but after giving it our mature consideration and consulting all the authorities bearing on the equitable question which arises, we can have no doubt how it should be decided. It appears that the decree-holder obtained a decree for rent against one Behari Jha on the 8th February 1905. He applied for execution of that decree for the first time on the 8th February 1908. Notice under Section 248 was issued and on the 3rd April the peon reported that the judgment-debtor was dead. On the 21st April the decree-holder applied for substitution of the heirs and notice was accordingly issued on them under Section 248, Civil Procedure Code. On the 3rd of July 1908, they filed the present objection contending that the execution was barred by limitation, more than three years having elapsed between the date of the decree and the application to execute as against them on the 21st April 1908.

2. The decree being one for rent and below Rs. 500, no second period of limitation is allowed under Article 6, Schedule III, Bengal Tenancy Act. This being so, the question arises whether the substitution made on the 21st April 1908 can be considered as a continuation of the application for execution of the 8th February 1908.

3. The rulings that have laid down that an application for execution against a person subsequently found to be dead is a step-maid of execution and, therefore, gives a fresh period of limitation under Article 179 of the Limitation Act do not concern us in this case in any way. Under the ordinary law, the statute itself gives the decree-holder a further opportunity to take out execution and so no further equities arise in his favour.

4. But the case of a decree-holder under the special limitation laid down in the Bengal Tenancy Act is very different and we can see no reason why any relief which the Courts have inherent power to grant should not be given to him. It is clear that had Behary Jha died an hour after the application of the 8th February 1908 or at any time between that date and April 3rd, the substitution of his heirs could not have been held to be barred.

5. Yet the technical objection that the execution sought against the heirs was out of time would still hold good and the Court would be met with the anomaly that though the application against the heirs could not be made till Behary Jha was dead and, therefore, could not be refused if Behary Jha survived an hour after the application to execute against him, it was still after the time prescribed by the special limitation. Obviously the Court would, in that case, have to adopt the principles laid down in the recent case of Chhayunnessa Bibi v. Basirar Rahman 37 C. 399 : 11 C.L.J. 285 : 5. Ind. Cas. 532,, namely, that 'in the first place it is clear upon the authorities that a Court has inherent power, in any particular case, to adopt such procedure as may be necessary to enable it to do that justice for the administration of which alone it exists'. And, 'in the second place, it is reasonably clear that if an amendment is allowed, it takes effect from the date when the defective application was filed.' That this rule applies to executions there is ample authority in Fuzloor Rahman v. Altaf Hossen 10 C. 541; Mac Gregor v. Tarini Churn Sircar 14 C. 124; Jiwat Dube v. Kali Charan Ram 20 A. 478; Shama Prasad Ghose v. Taki Mullik 5 C.W.N. 816, and we are unable to see any principle upon which the relief sought for in the case we have imagined could be given, unless it were on the principles laid down above.

6. These principles being established, we can see no reason why they should not be applied with equal weight to the present case. It is admitted that the application of the 8th February 1908 was a good application and the death of the judgment-debtor without the knowledge of the decree-holder could not make it a bad application.

7. That being so, it appears to continue valid until the Court has an opportunity of making the necessary amendment to give effect to what was in itself a good application.

8. The only possible objection to this is an objection on the facts, such as has been actually pleaded in this case, to show that the decree-holder has forfeited any equities he might have had by his own laches.

9. It is urged that the decree-holder's man went with the peon on the 3rd April and had an interview with Chandra Kishore Jha, who now appears to be the judgment-debtor's sole representative and others who appeared to be members of the household. The learned Judge holds that this saddled the decree-holder with knowledge of Behary Jha's death and he was bound to make his amended application at once, but he omits to notice that in order to get amendment it was necessary for the decree-holder not only to be satisfied that Behary Jha was dead, but to find out who were his heirs. It does not appear that Chandra Kishore Jha told the peon that he was the sole heir and reasonable time must have, therefore, been given to the decree-holder to find out whether there were other representatives of the deceased.

10. We do not think that 18 days was an unreasonable time for this purpose and the principle of the Court's jurisdiction to make the amendment being clear, we think it was competent to the Court to make the amendment on the 21st April 1908 as, in fact, it actually did.

11. We, therefore, set aside the orders of both the lower Courts and allow the appeal with costs. We assess the hearing fee at two gold mohurs.


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