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Maulvi Muhfoozul Huq and ors. Vs. Maulvi Mazhorul Huq and ors. and Nazimonnessa Khatun and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in41Ind.Cas.685
AppellantMaulvi Muhfoozul Huq and ors.
RespondentMaulvi Mazhorul Huq and ors. and Nazimonnessa Khatun and anr.
Cases ReferredMohammad Ali Khan v. Jasram
Excerpt:
civil procedure code (act v of 1908) order iii, rule 4 - pleader acting on vakalatnama not containing his name--execution petition presented by such pleader, validity of--amendment of vakalatnama. - .....was filed on '24th april 1914 by babu srish chandra guha, representing himself as pleader for the decree-holders. on that application notices were ordered to issue and the judgment-debtors appeared on 27th may and took time to file their objections. that time was extended and eventually on 9th june 1914 the judgment-debtors objected that the pleader for the decree-holders had no authority to act. on the very next day the decree-holders filed another vakulatnama in favour of the pleader. when the matter came before the subordinate judge) as appears from the order of 17th june 1914, babu srish chandra guha, the pleader for the decree-holders, admitted that the petition for execution of the decree was filed by him without authority and that the case should be dismissed. the case was.....
Judgment:

1. This is an appeal by the decree-holders, whose application for execution has been rejected by both the lower Courts on the ground that the application, which was filed, on the last day of the period, of limitation, was filed by a Pleader who had no authority to do so. The application for execution was filed on '24th April 1914 by Babu Srish Chandra Guha, representing himself as Pleader for the decree-holders. On that application notices were ordered to issue and the judgment-debtors appeared on 27th May and took time to file their objections. That time was extended and eventually on 9th June 1914 the judgment-debtors objected that the Pleader for the decree-holders had no authority to act. On the very next day the decree-holders filed another vakulatnama in favour of the Pleader. When the matter came before the Subordinate Judge) as appears from the order of 17th June 1914, Babu Srish Chandra Guha, the Pleader for the decree-holders, admitted that the petition for execution of the decree was filed by him without authority and that the case should be dismissed. The case was accordingly dismissed. From that order the decree-holders filed an appeal to the learned District Judge, who held that the vakalatnarm was not a sufficient authority to the Pleader and that, therefore, the application for execution was not duly presented. He accordingly dismissed the appeal. The learned District Judge was referred to the case of Chhayunnessa Bibi v. Basirar Rahman (1) but he distinguished that case on the ground that the authority there was a mukhtearnama where as in this case it was a vakalatnama. Having regard to the facts in the two cases, there does not appear to us to be any substantial distinction between the two, and this was very properly conceded by the learned Pleader for the respondents In that case the Mukhtear was empowered by a mukhtearnama which did not contain his name and the same u the case with regard to the Pleader before us. It would appear from the vakalatnama that it was merely a clerical error. The vakalatnama, as is so often the case, is written out in the names of five Pleaders but the name of Srish Chandra Goha does not appear among them. Overlooking this he appears to have accepted the vakalatnama as if his name was contained in it, and he has written his acceptance on the back. He is the only Pleader who has accepted it and he acted as if he was the only Pleader engaged. We think we may safely presume that he was engaged by the decree-holders in this matter. There is certainly no evidence to the contrary; nor did the respondents take the objection before the lower Court that he had never been in fact authorized to make the application. The learned Pleader for the respondents had cited the case Mohammad Ali Khan v. Jasram (2) in which no doubt a contrary opinion was arrived at. But we think we ought to follow the case decided in our own Court if that is, as we think, indistinguishable from the present. We think the simplest course will be to allow this appeal set aside the orders of both the Courts below, and allow the amendment of the vakalatnama by the insertion of the name of Babu Srish Chandra Guha along with the Pleaders therein named. Under the circumstances, we make no order as to costs.


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