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Rohini Kumar Roy Vs. Krishna Prosad Roy Choudury - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in163Ind.Cas.680
AppellantRohini Kumar Roy
RespondentKrishna Prosad Roy Choudury
Cases ReferredGhuznavi v. Allahabad Bank Ltd.
Excerpt:
civil procedure code (act v of 1908), section 151 - amendment--one of joint decree-holders applying for execution of his share only--application dismissed --in appeal, application allowed to he amended by making it one for entire amount and for benefit of all decree-holders--decree-holders kept out of their dues for many years already--amendment held, to be in interest of justice and justifiable under circumstances. - .....of munsif of sealdab, an application for execution was put in before him by one of the decree-holders on september 19, 3932. in that application the prayer was for execution not of the whole decree but in respect of the share of the applicant, that is to say, the application was not in the form prescribed by order xxi rule 15 of the code of civil procedure. the judgment-debtor who had been successful in keeping the decree-holders out of their money, at least of a very substantial part thereof, for about five years or more put in an objection under section 47 of the civil procedure code, stating that the application was not in order and the execution could not proceed on the said application, that to say, his objection was that one of several joint decree-holders wes not.....
Judgment:

R.C. Mitter, J.

1. This is an appeal on behalf of the judgment-debtor. His objection to the execution of a decree passed as far back as February 9, 1927, has been overruled by the lower Appellate Court. The decree was passed in favour of several persons. On February 12, 1929, an application for execution was put in. The final order was passed on that application on May 10, 1929. On April 11, 1932, there was an application for transfer of the decree for execution and on that application being granted, the decree was transferred to the District of 24-Parganas. The properties falling within the jurisdiction of Munsif of Sealdab, an application for execution was put in before him by one of the decree-holders on September 19, 3932. In that application the prayer was for execution not of the whole decree but in respect of the share of the applicant, that is to say, the application was not in the form prescribed by Order XXI Rule 15 of the Code of Civil Procedure. The judgment-debtor who had been successful in keeping the decree-holders out of their money, at least of a very substantial part thereof, for about five years or more put in an objection under Section 47 of the Civil Procedure Code, stating that the application was not in order and the execution could not proceed on the said application, that to say, his objection was that one of several joint decree-holders WES not entitled to pray for execution in respect of his share of the decree but was bound to pray for execution of the whole decree for the benefit of himself and the other decree-holders. The learned Munsif gave effect to this objection and dismissed the application for execution by an order dated May 29, 1933. The decree-holder took an appeal before the learned District Judge. The said appeal was heard by the Subordinate Judge. First Court of 21 Parganas. Before the learned Subordinate Judge the decree-holder prayed for amendment of his application for execution and he stated that he wished to proceed for the realization of the entire amount due under the decree for his benefit and for the benefit of the other decree-holders. The learned Subordinate Judge allowed the appeal by an order, dated September 9, 1933, and remanded the case to the Court of first instance in order that execution might be proceeded with after necessary amendment of the application for execution. The judgment-debtor has preferred an appeal against this order and contends before us that the learned Subordinate Judge has no power to direct the said amendment. For the purpose of his contention he says that the power of an executing Court in respect of amendments is defined in Order XXI, Rule 17, and in no case, says he, should applications' for amendment be allowed which do not fall within the scope of the said rule. We do not think that this contention of the Advocate for the appellant is sound. The Civil Procedure Code is not exhaustive. There is always the power of the Court to make orders in the interest of justice. In Section 153 of the Civil Procedure Code, the Court is given the general power to direct amendments and Section 151 of the Code says that nothing in the Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. It has been held in the case of Ghuznavi v. Allahabad Bank Ltd. 44 C. 929 : 41 Ind. Cas. 598 : 21 C.W.N. 87 : 26 C.L.J. 490 : A.I.R. 1917 Cal. 44, that this power is only restricted m one respect and one respect only, that it cannot be exercised in the face of specific provisions of the Code. In the case before us the decree was passed in the year. 1927. The objection of the judgment-debtor was a very technical One. He had kept the decree-holders out of their dues for a large number of years. At the date of the amendment there was no question of limitation. Under three circumstances the Court was right in allowing the amendment inasmuch as thereby it prevented the judgment-debtor from further prolonging the execution proceedings. It is rather scandalous that he has by reason of technical objections kept the decree-holders out of their dues for a period of good eight years and we do not think that any further scope should be afforded to the judgment-debtor for prolonging the execution any further. The order for amendment has obviously been in the interest of justice and is wholly justifiable under the circumstances of the case. We, accordingly, dismiss this appeal with costs, hearing fee two gold mohurs.

Derbyshire, C.J.

2. I agree.


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