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Shekendarali Meah Vs. Abdul Gafur Choudhury and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1942Cal306
AppellantShekendarali Meah
RespondentAbdul Gafur Choudhury and ors.
Cases ReferredAziz Rahaman v. Bepin Behari
Excerpt:
- .....longer be executed having regard to the provisions of section 48, civil p.c.2. it appears that the decree-holders had obtained a decree for rent against the judgment-debtors as far back as 8th february 1924. this decree together with costs amounted to rs. 6127-15-0. thereafter, the usual steps were taken by the decree-holders to put this decree into execution and the record shows that the judgment-debtors placed every possible obstacle in the way of the decree-holders at various stages of the execution proceedings. the last execution case was instituted on 6th february 1936 by execution case no. 3 of 1936. by that time, the decree-holders had succeeded only in realising the sum of rs. 250 from the judgment-debtors and the amount due to them, including interest on the decree amounted to.....
Judgment:

Edgley, J.

1. One of the judgment-debtors is the appellant in this case and the appeal is directed against an order of Mr. Protap Chandra Sen Gupta, Subordinate Judge, Second Court, Backergunge, dated 31st March 1939, in which the learned Judge dismissed an objection raised by the judgment-debtors in the execution proceedings to the effect that the decree could no longer be executed having regard to the provisions of Section 48, Civil P.C.

2. It appears that the decree-holders had obtained a decree for rent against the judgment-debtors as far back as 8th February 1924. This decree together with costs amounted to Rs. 6127-15-0. Thereafter, the usual steps were taken by the decree-holders to put this decree into execution and the record shows that the judgment-debtors placed every possible obstacle in the way of the decree-holders at various stages of the execution proceedings. The last execution case was instituted on 6th February 1936 by execution case No. 3 of 1936. By that time, the decree-holders had succeeded only in realising the sum of Rs. 250 from the judgment-debtors and the amount due to them, including interest on the decree amounted to Rs. 9865-10-0. In col. 10 of the application for execution the decree-holders asked that certain properties mentioned in the schedule might be put up for sale. They also asked for attachment of the moveable properties of the judgment-debtors and as a last resort for execution by arrest of the judgment-debtors. In the last column of the application was included a list of properties against which the decree-holders wished to proceed. Admittedly, this application for execution was in accordance with law. During the course of the execution proceedings, some of the judgment-debtors put forward a claim in their capacity as mutwallis of the properties which it was sought to attach to the effect that these properties were exempt from attachment. This objection was allowed on 30th January 1937, and it appears that thereafter the decree-holders filed a suit under the provisions of Order 21, Rule 63, Civil P.C. The sale of the attached moveable properties of the judgment-debtors only resulted in the realisation of a small sum towards the decretal dues, so the decree-holders filed a further list of properties in the possession of the judgment-debtors and asked for the permission of the Court to proceed against these properties which were mentioned in a petition filed by the decree-holders on 10th November 1938. The judgment-debtors filed an objection under Section 47 of the Code with reference to this petition. The matter came on for hearing before the learned Subordinate Judge on 31st March 1939 and under his order the objection of the judgment-debtors was dismissed. As already stated, it is against the latter order that this appeal is directed.

3. The main point urged by the learned advocate for the appellant in this case is that the application made by the decree-holders on 10th November 1938 was in effect a fresh application for execution and was, therefore, time-barred having regard to the fact that the rent decree which it was sought to execute was passed as far back as 8th February 1924. He also contends that, inasmuch as more than 12 years had elapsed from the date of the decree, it was not competent for the learned Subordinate Judge to treat the application as one for the amendment of the pending application for execution. As already stated, the application for execution of the decree which was filed on 6th February 1936 was admittedly an application in accordance with law. Therefore, we are not concerned with the question whether an application for execution which has been registered may be amended after the expiry of the prescribed period of limitation for the purpose of removing formal defects within the meaning of Order 21, Rules 11 to 14, Civil P.C. That being the case, the principles laid down by a Full Bench of this Court in Asgar Ali v. Troilokya Nath ('90) 17 Cal. 631 (F.B.) have no application. In this connection it was observed by Mitter J. in Piramal Goenka v. Basanti Das Chatterji : AIR1935Cal614 that certain views expressed in Asgar Ali v. Troilokya Nath ('90) 17 Cal. 631 (F.B.) have not met with approval in later cases of this Court. But be that as it may, it is clear that apart from the provisions of Order 21, Rule 17, amendment to applications for execution may be made in suitable cases after the registration of such an application as was pointed out by Sir George Rankin, C.J. in Naurangilal v. Charubala Dasee : AIR1932Cal766 . In that case His Lordship observed:

Now, because the rule requires a preliminary scrutiny of certain formalities before the petition can get upon the file, it is actually argued that that means that after it has got upon the file nobody can ever get his petition amended even with the leave of the Court--a thing which is almost ludicrous as an argument....Under the Code, procedure is intended to be less, rather than more formal in the execution of a decree than in the case of the hearing of a suit ; and the executing Court need not have found difficulty in allowing him (i.e., the appellant) to amend his petition.

4. In my view the circumstances of the present case are in many respects similar to those of the case in Gnanendra Kumar Roy v. Rishendra Kumar Roy ('18) 5 A.I.R. 1918 Cal. 73. In that case the decree-holders sought to file a supplementary list of properties against which execution might be taken and it was contended that they could not do so having regard to the law of limitation. The learned Judges, however, observed:

Here there was a list of properties, the application was one made in accordance with law and it was only on the objection taken by the judgment-debtors that it was discovered that against those properties execution could not proceed. We are not of opinion that in a case such as this the decree-holder should be confined to the properties he had originally specified and we think that it was open to him to ask the Court to proceed against the properties specified in his further and supplementary list.

5. The learned advocate for the appellant has placed some reliance upon the case in Hayatunfiessa Choudhurani v. Achia Khatun : AIR1924Cal131 . In that case the decree-holder had asked for permission to be allowed to add several other properties to the list given in his original application. The learned Judges observed that the circumstances of the case were very different from those in Gnanendra Kumar Roy v. Rishendra Kumar Roy ('18) 5 A.I.R. 1918 Cal. 73 and they declined to grant the decree-holder the relief which he sought. The reasons for this decision have not been stated clearly in the judgment but it is possible that the learned Judges considered that the decree-holder had not exercised proper care and diligence in drawing up his original application for execution. Another case upon which the learned advocate for the appellant relies is that in Badri Narayan v. Dharmadas Pal : AIR1935Cal143 . That case is clearly distinguishable because as pointed out by the learned Judges, 'all the reliefs that the decree-holder asked for in the application of 19th December 1931, were granted to him by the executing Court and all such properties as he desired to put up to sale for realising his decree were sold and nothing further remained to be granted on the basis of that application.'

6. The only other case to which we were referred by the learned advocate for the appellant is that in Aziz Rahaman v. Bepin Behari : AIR1938Cal162 , which was decided against the decree-holder on the principle that, by proceeding to attach certain moveable properties which had not been included in the original petition for execution, the decree-holder was seeking to depart substantially from the previous petition and the subsequent petition could not be regarded as a continuation of the execution originally initiated by him.

7. In my view, the following general principles may be deduced from the above cited cases. The law requires that a decree-holder in executing a decree should indicate in his application for execution the various modes of execution, which he wishes the Court to adopt. He should also as far as possible indicate the properties of the judgment-debtors against which execution proceedings should be taken, it being of course understood that, he should not take execution proceedings against more items of property than he considers sufficient to satisfy his decree, provided the application for execution is in accordance with law and has been duly registered. If a subsequent application is filed for the purpose of amending the list of properties against which the decree-holder wishes to proceed, the Court is vested with a reasonable discretion, to deal with the matter according to the circumstances of the case. Of course, to accept such a petition would result in effect in the amendment of the application for execution. Such an amendment should not be allowed if it has the effect of substantially altering the character of the execution proceedings, but in a case such as that with which we are now dealing, in which it was discovered on the objection of the judgment-debtors themselves that execution could not proceed against the attached properties, I am of opinion that the Court would exercise a reasonable discretion in accepting a supplementary petition such as that which was filed by the decree-holders on 10th November 1938. In this view of the case, the decision of the learned Subordinate Judge must be affirmed and this appeal is dismissed. The only appearing respondents are the minors who are represented by the Deputy Registrar of this Court and as their costs have already been paid no further order with regard to costs is necessary.

Biswas, J.

8. I agree.


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