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Aziz Rahman Molla and ors. Vs. BepIn Behary Mukherjee and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1938Cal162
AppellantAziz Rahman Molla and ors.
RespondentBepIn Behary Mukherjee and ors.
Cases ReferredHar Sarup v. Bal Govind
Excerpt:
- .....following circumstances. the appellants obtained a decree in rent suit on 21st november 1930. they filed an application for execution on 18th november 1933. in that application the reliefs asked for were the arrest of the judgment-debtor and sale of the holding if necessary. there was no prayer made in the execution for attachment of moveables. on 30th august 1934 the appellants filed' another application for attachment of moveables. on the same date this application was allowed and moveables were attached and sold and the decree was satisfied. subsequently the judgment-debtor respondent filed an application under section 47, civil p. c, alleging that the order for attachment of moveables had not been legally made and prayed for setting aside of such order and refund of sale proceeds......
Judgment:

S.K. Ghose, J.

1. This is an appeal by the decree-holders in execution proceedings and it arises out of an application under Section 47, Civil P.C., under the following circumstances. The appellants obtained a decree in rent suit on 21st November 1930. They filed an application for execution on 18th November 1933. In that application the reliefs asked for were the arrest of the judgment-debtor and sale of the holding if necessary. There was no prayer made in the execution for attachment of moveables. On 30th August 1934 the appellants filed' another application for attachment of moveables. On the same date this application was allowed and moveables were attached and sold and the decree was satisfied. Subsequently the judgment-debtor respondent filed an application under Section 47, Civil P. C, alleging that the order for attachment of moveables had not been legally made and prayed for setting aside of such order and refund of sale proceeds. The learned Munsif pointed out that the decree had bean barred by limitation on 30th August 1934 the date on which the appellants filed their application for attachment of moveables. He says as follows:

It is now a settled principle of law that the decree-holders can add to or amend the prayers in their original application for execution if only the decree is not barred by limitation on the date on which such prayer for amendment or further relief is claimed. Thus the attachment was without jurisdiction.

2. The Court allowed the prayer for refund of sale proceeds. On appeal the learned Subordinate Judge took the same view. Hence this second appeal. It is contended that under the provisions of Order 21, Rule 17 the application of 30th August 1934 should have been treated as an application for amendment of the original application for execution and presented as on the date when the original application was presented. It may however be pointed out that the provisions of Order 21, Rule 17 require that the application be returned for amend-ment for non-compliance with the provisions of Rules 11 to 14 and the application is thus amended. For the appellants, reliance has been placed on Nourangilal Marwari v. Charubala Dasi : AIR1932Cal766 as showing that the amendment need not have anything to do with Rules 11 to 14. In that case the appellant filed an application asking that his previous petition might be amended by correcting the statement therein to the effect that he had become entitled by succession and substituting the statement that he had become entitled by survivorship, the object being to show that no succession certificate would be necessary under the law. Rankin C. J. points out that this has nothing to do with Rules 11 to 14. Nevertheless it was only a formal amendment which was asked for and there was no question of limitation. For the appellants, reliance is also placed on Gnanendra Kumar Rai v. Shyam Sundar Jiu (1918) 5 AIR Cal 73. In that case the original application for execution was, on the face of it, in accordance with law and it contained a list of properties as required under Order 21, Rule 13 of the Code. The subsequent petition was to proceed against certain other properties specified therein as a supplementary list, This undoubtedly was a prayer for amendment and the question was whether it could be accepted. It was held that the application was made in continuation of the application first presented. In the present case the facts are entirely different. By the application of 30th August 1934 not merely a change of a formal nature but a different kind of relief is asked for. To quote the language of the Judicial Committee in Maharaj Bahadur Singh v. A.H. Forbes (1929) 16 AIR PC 209 the petition of 30th August 1934

marks a substantial departure from the previous petition and not a continuation of the execration] initiated by that petition.

3. The case in Har Sarup v. Bal Govind (1895) 18 All 9 is also similar, with this difference that the previous application had been struck off. Further, the application of 30th August 1934 does not appear to be an application for amendment of the previous application; on the face of it, it was an independent application and did not suggest of amendment. It is also contended for the appellants that the application under Section 47 should not have been entertained and the proper procedure was by way of filing an appeal against the order allowing the application of 30th August 1934. I do not think that there is any substance in this contention. The present application was filed on 22nd September 1934 and there is no question of limitation. It is also pointed out on behalf of the respondents that the decree itself has been set aside on 17th November 1934. I consider that the Courts below took the correct view. The appeal is therefore dismissed with costs, hearing-fee being assessed at two gold mohurs.


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