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Chhayunnessa Bibi Vs. Kazi Basirar Rahman - Court Judgment

LegalCrystal Citation
Decided On
Reported in5Ind.Cas.532
AppellantChhayunnessa Bibi
RespondentKazi Basirar Rahman
Cases ReferredRaghunatha Thatha Chariar v. Venkatesa Tawker
execution of decree - application by mukhtear--mukhtearnamah accepted by him--name of mukhtear omitted from mukhtearnamah by mistake--amendment of mukhtearnamah--inherent power of court to allow amendment--discretion of court--amendment validates proceeding from inception. - .....19th september, got dasarathi ghose who had appeared in the original suit and appeal to accept the power filed at first by gopi nath; and on the 2nd january 1909, dasarathi also signed the application for execution. the subordinate judge thought that this was sufficient to validate the proceedings and allowed execution to proceed. on appeal, district judge held that the proceedings were illegal; the application for execution which had been originally signed by gopi nath, was inoperative, because it was not till the 10th september, that gopi nath had written authority to appear on behalf of the decree-holder; and the application treated as made on that day, was obviously barred by limitation; on the other hand, the application could not be validated by the subsequent signature of the.....

1. We are invited in this appeal to reverse an order of the District Judge by which he has dismissed an application for execution of a decree as barred-by limitation.

2. The appellant obtained the decree on the 5th July 1905. On the 29th June 1908, she applied for execution. This application was presented by a mukhtear Gopi Nath, who signed on the back of the mukhtearnamah which was attached to the application. As a matter of fact, the body of the mukhtearnamah did not contain the name of this mukhtear, and the case of the appellant throughout has been, that the name was omitted by the mistake of the writer, whodrew up the power of attorney. The officer of the Court who examined the application overlooked this defect, though he found out that the application was not in order, as the properties sought to be attached had been imperfectly described. On the 2nd July 1908, the application was returned to the 'filing pleader,' for amendment within seven days. The application was amended, and re-filed on the 6th July following. It was thereupon registered, and notices were directed to be issued on the judgment-debtor, tinder Section 248, Civil Procedure Code. On the 5th August, the judgment-debtor filed his objections. One of these was that the application was barred by limitation, another was that the person who had verified the application, was not the duly authorised agent of the decree-holder; but no objection appears to have been expressly taken that the mukhtear had not been duly empowered to file the application. It is not clear how the mistake was first discovered, but on the 10th September, the decree-holder filed an application, in which it was stated, that by an oversight the name of the mukhtear had been omitted from the power of attorney and along with it, a properly executed mukhtearnamah, in favour of Gopi Nath was filed. The Court directed this mukhtearnamah to be placed on the record.

3. At the hearing, it was objected that there was no application in accordance with law till the 10th September, 1908, and that it was consequently barred by limitation, but the Subordinate Judge overruled this objection. It may be mentioned that the decree-holder anticipating the objection had, on the 19th September, got Dasarathi Ghose who had appeared in the original suit and appeal to accept the power filed at first by Gopi Nath; and on the 2nd January 1909, Dasarathi also signed the application for execution. The Subordinate Judge thought that this was sufficient to validate the proceedings and allowed execution to proceed. On appeal, District Judge held that the proceedings were illegal; the application for execution which had been originally signed by Gopi Nath, was inoperative, because it was not till the 10th September, that Gopi Nath had written authority to appear on behalf of the decree-holder; and the application treated as made on that day, was obviously barred by limitation; on the other hand, the application could not be validated by the subsequent signature of the pleader who had appeared in the original suit. In other words according to the District Judge the application was inoperative, because it had been signed and presented by a mukhtear who had no written authority at the time, and had not been signed by the pleader who might at that time have filed it. In this view the District Judge allowed the appeal and dismissed the application for execution.

4. The decree-holder has now appealed to this Court and on her behalf, it has been contended that in the event which had happened, the application ought to have been treated as within time, that although the original muhhtearnamah did not contain the name of the mukhtoar who accepted it, it was open to the Court to allow the mukhtearnamah to be subsequently amended; and that the application of the 10th September 1908, might, in substance, be treated as an application for such amendment. It has further been urged that as objection was not taken on this ground by the judgment-debtor, he must be taken to have waived it and that in any event, the Court had inherent power so to amend the proceedings, as to do justice between the parties. These positions have been controverted on behalf of the respondent, and it has been broadly argued that the parties ought to be made strictly to adhere to the rules of procedure on the subject. The question raised for our decision is one of some novelty, and is not altogether free from difficulty. But after careful consideration of the arguments addressed to us on both sides, we are of opinion that the contention of the appellant should prevail.

5. Section 36 of the Civil Procedure Code of 1882 provides that any application or act, required or authorised, by law, to be made or done by a party to a suit, may be made or done by his recognised agent or by a pleader duly appointed to action his behalf. Section 39 provides that the appointment of a pleader shall be in writing, and such appointment shall be filed in Court. Section 37 which deals with recognised agents, specifies the classes of persons by whom appearances, applications and acts may be made or done on behalf of parties. The second clause of the section deals with certificated mukhtcars, who, when holding special powers of attorney authorizing them to do on behalf of their principals such acts as may legally be done by mukhtears, may appear or act. Under the rules of this Court, a certificated mukhtear is authorised to file an application for execution (Rules and Circular Orders, Chapter XI, Article 34). Section 37 of the Code, however, does not define a power-of-attorney nor is any definition given elsewhere in the Civil Procedure Code, or in the General Clauses Act. A question might, perhaps, therefore, arise as to whether a power of-attorney, for purposes of Section 37, must always be in writing, in other words, whether authority to act, when conferred upon a certificated mukhtear must be by a written instrument. In England, it appears to have been ruled that written authority is not absolutely necessary, and that parol authority is sufficient Lord v. Kellett (1835) 2 Myl. & K. 1. The case of Wright v. Castle (1817) 3 Mer. 12 : 17 R.R. 3 shows that an attorney who acts without a written authority may find himself in trouble if his client denies that he had authority to institute the proceedings; and Lord Eldon observed that a solicitor must furnish himself with an authority in writing (Street on Equity Procedure, Vol I, Sections 570 and 641. Gibson on Suits in Chancery, Section 1174. Annual Practice, 1910, Vol. II, page 436.) In this country, it is undoubtedly the practice for mukhtears to file mukhteamamahs, and as it has not been argued that a power of attorney under Section 37 may be by parol, we shall assume that it must be in writing, that is, that a power of attorney is an instrument, by which the authority of an attorney in fact is set forth. This view receives some support from the case of Walker v. Pemmett (1846) 2 C.B. 850 : 69 R.R. 625 : 15 L.J.C.P. 174 : 10 Jur. 380. If, therefore, written authority is essential, the question arises, whether an application made by an attorney whose name has, by mistake, been omitted from the power, can be validated by a subsequent amendment. In our opinion, there is no reasonable doubt that the Court has inherent power to allow such amendment to be made, and that the amended power takes effect from the date when it was originally filed.

6. 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. Panchanon Singha Roy v. Bwarka Nath Roy 3 C.L.J. 29, Hukum Chand Baid v. Kamalanand Singh 3 C.L.J. 67 : 33 C. 927. As Mr. Justice Mahmood observed in Narsing Das v. Mangal Dubey 5 A. 163 at. P. 172, the Courts are not to act upon the principle that every procedure is taken to be as prohibited unless it is expressly provided for by the Code, but on the converse principle that every procedure is to be understood as permissible till it is shown to be prohibited by the law. This is, of course, subject to the qualification that in the exercise of its inherent power, the Court must be careful to see that its decision is based on sound general principles, and is not in conflict with them or the intention of the Legislature. A similar view was emphasised by Lord Penzance in Kendall v. Hamilton (1879) 4 App. Cas. 504 : at p. 525 : 41 L.T. 418 : 28 W.R. 97 : 48 L.J.C.P. 705., where he observed that procedure is the machinery of the law, after all, the channel and means whereby law is administered and justice reached, it strongly departs from its proper office, when in place of facilitating, it is permitted to obstruct and even extinguish legal rights and is thus made to govern where it ought to subserve. Now there can be no room for controversy that the Code of Civil Procedure allows amendments to be made in judicial proceedings under various circumstances. No comprehensive formula can be framed to define precisely the power of a Court to allow such amendments to be made, but this much may be laid down as the cardinal rule that the allowance of amendments must, in every stage of the case, rest with the discretion of the Court, and that discretion must depend largely on the special circumstances of each case. If a limit to amendments may be laid down, it is this that they must not be allowed to prejudice the substantial rights of the party in favour of whose opponent the amendment is allowed; but observing due caution in that regard, the time and extent of each amendment are in the judicial discretion of the Court Hardin v. Boyd (1884) 113 U.S. 756 at p. 761 : 28 Law. Ed. 1141, Codington v. Mott (1884) 113 U.S. 756 at p. 761 : 28 Law. Ed. 1141.

7. In a case like the present, where there is no doubt as to the fact that the mukhtear who filed the application for execution had in fact authority from the decree-holder, and that his name was omitted by mistake from the power of attorney, it is, in our opinion, reasonable to hold that the Court may, in its discretion, allow the power to be amended, upon proper application by the decree-holder for the insertion of the name of the attorney.

8. The view, we take, is supported by the case of Pinde v. Norton (1554) 1 Dyer. 105, where a mistake of a name in a warrant of attorney to suffer a common recovery, was allowed to be amended (see also Comya's Digest, 5th Edition, Volume I, page 746, tit. Attorney, and Bacon's Abridgement, 7th Edition, Volume I, page 404, tit. Attorney). The same view is borne out to some extent, by the decisions in Dhanpatsing v. Lilanandsing 2 Bom L.R. App. 28 : 11 W.R. 28, Autoo Misree v. Bidhoo Mookhee Dabee 4 C. 604 and Lakhmi Das v. Gobind Ram 105 P.R. 1882, where want of authority in the person who presented an application for execution was treated as a mere irregularity which could be waived, a view not inconsistent with that taken in Murari Lal v. Umrao Singh 23 A. 499.

9. In the second place, it is reasonably clear that if such amendment is allowed, it takes effect from the date when the power of attorney was originally filed. It is not practicable to lay down any rule of universal application on the subject of the retroactive effect of amendments. There are cases, however, in which amendments have been allowed with retroactive effect; for instance, when a plaint has been filed upon insufficient Court-fees, upon payment of deficit Court-fees, the suit must be taken to have been instituted, on the day when the plaint was originally filed, Skinner v. Orde 6 I.A. 126 : 2 A. 241. In other cases of amendments also, for instance, amendments of applications for execution of decrees, the amended application has been treated, for purposes of limitation, as if it had been presented in its amended form on the original, date, Fuzloor Rahman v. Altaf Hossen 10 C. 541, Macgregor v. Tarini Churn Sirkar 14 C. 124, Jiwat Dube v. Kali Churn Ram 20 A. 478, Shama Prosad Ghose v. Taki Mullick 5 C.W. 816, which, were not referred to in Raghunatha Thatha Chariar v. Venkatesa Tawker 26 M. 101, where a different view was taken. In fact when an amendment has been properly made and the cause of action is not altered, the amended pleading may properly be regarded as a continuation of the original pleading and takes effect as of the date when the latter was filed. On these principles, we must hold that it was competent to the Court of first instance, to allow the omission in the original power of attorney to be supplied, and that as soon as the defect was removed, the proceeding was validated from its inception.

10. The result, therefore, is that this appeal must be allowed, the order of the District Judge set aside and that of the Court of first instance restored with costs throughout. We assess the hearing fee at one gold mohur.

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