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Srimati Saudamini Ghose Vs. the Jessore Registered Loan Company Limited - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1926Cal1146,96Ind.Cas.554
AppellantSrimati Saudamini Ghose
RespondentThe Jessore Registered Loan Company Limited
Cases ReferredMathura Prosad v. Anurago Koer
Excerpt:
civil procedure, code, (act v of 1908), order xxi, rule 11, clause 2(f) - omission to give specifications--material irregularity. - .....to execution and ordering that execution should proceed.2. the facts appear to be these: the decree-holder obtained a money-decree against the judgment-debtor on the 24th of june, 1911. the decree was executed a number of times and finally on the 6th june, 1923 the application with which we are now concerned was made. the judgment-debtor made a number of objections to the execution of the decree. it is unnecessary for me to set out what these objections were, because none of them has been argued in appeal. the objection in the present appeal is entirely new and was not taken before the executing court. the objection is as follows: the appellant contends that certain specifications which were necessary, under order xxi, rule 11 were not set forth in the application for execution and.....
Judgment:

Cuming, J.

1. This is an appeal against an order of the learned Subordinate Judge of Jessore disallowing certain objections to execution and ordering that execution should proceed.

2. The facts appear to be these: The decree-holder obtained a money-decree against the judgment-debtor on the 24th of June, 1911. The decree was executed a number of times and finally on the 6th June, 1923 the application with which we are now concerned was made. The judgment-debtor made a number of objections to the execution of the decree. It is unnecessary for me to set out what these objections were, because none of them has been argued in appeal. The objection in the present appeal is entirely new and was not taken before the Executing Court. The objection is as follows: The appellant contends that certain specifications which were necessary, under Order XXI, Rule 11 were not set forth in the application for execution and that being so the whole of the proceeding was a nullity. The particular specification which the learned Vakil for the appellant contends was not set forth in the application for execution is the specification which will be found under Order XXI, Rule 11, Clause 2, Sub-clause (f) which runs as follows 'whether any, and (if any) what, previous applications have been made for the execution of the decree, the dates of such applications and their results.' The learned Vakil has drawn our attention to the application for execution in which under this heading there is the following entry. 'The date of last application for execution 15th June, 1920, in money Execution Case No. 59 of 1920. On partial satisfaction struck off on 23rd July 1920.' The learned Vakil for the appellant contends that it is not sufficient to put down the date of the last application for execution and its result, but that the rule requires that all the previous applications should be noted with their results. No doubt, the rule does provide that all the previous applications with their dates and their results should be noted in this column, and it is also clear from a perusal of the application for execution that the dates of all the previous applications with their results were not noted. The point then remains as to whether this omission to put down in this column all the former applications and their results is a material irregularity such as would render the whole of the execution proceeding illegal or not. As I have noted before, this point was not taken before the Executing Court. No objection was made in the Executing Court that this information had not been duly given in the application for execution. This is all the more remarkable because in the circumstances of the case the judgment-debtor must have been aware that there had been previous applications for execution, and also in the column, itself the application which was mentioned was described as the last application for execution, therefore, it must have clearly indicated to her that there had been other applications. The learned Vakil contends, as I have noted before, that this omission, renders the whole of the execution proceedings illegal and nullity. In support of this contention he has referred us to a number of decisions of this Court. First of all he refers to the Full Bench case of Asgar Ali v. Troilokya Nath Ghose 17 C. 631 : 8 Ind. Dec. (N.S.) 960. The facts of that case were as follows: A certain decree had been passed on the 6th, September, 1876, and on the 6th July, 1888, an application for execution was made. This application for execution did not contain a list of properties as prescribed by Section 237 and the decree-holder did not produce the list of properties till the 11th September 1888. The Court there, held that. the application was defective, because it did not comply with the provisions of Section 237. Mr. Justice Ghose and Mr. Justice O'Kinealy both of them remarked that the original application was so defective that no relief could be obtained under it and it was incapable of execution. The ratio decidendi in that decision seems to be this--that the application as it stood was so defective that it could not be enforced, because the defect in that case was that no list of the judgment-debtor's properties had been given and hence it was not possible to attach any of the properties of the judgment-debtor in execution of the decree.

3. The next case we have been referred to is the case of Gopal Sah v. Janki Koer 23 C. 217 : 12 Ind. Dec. (N.S.) 145. In that case an application for execution was made on the 7th October, 1893, and for certain reasons was returned to the decree-holder as being defective and a week's time was allowed to the decree-holder to remedy this defect--the time given for remedying the defect being one week from the 30th October. In the place of remedying the defect the decree-holder filed a fresh application with the application of the 7th October attached to it. It was held that as the application of the 7th October was not one made in accordance with law, the execution was barred by limitation. It may be noted that in that case it was not a question of objection made by the judgment-debtor for the first time in appeal. In that case the Court as provided by Order XXI, Rule 17 had returned the application for amendment. Rule 17 provides that the Court if the application does not comply with the requirements of Rules 11 to 14 may either reject the application or may allow the defect to be remedied then and there or within a time to be fixed by it. And in that case although the application was returned to the decree-holder to be remedied within a week the decree-holder did not avail himself of the opportunity to remedy the defect.

4. The last case referred to is the case of Mathura Prosad v. Anurago Koer 5 Ind. Cas. 579 : 14 C.W.N. 481. It is unnecessary to deal with this decision at any length. I may say shortly that I cannot understand its applicability to the present case.

5. None of these decisions to which we have been referred directly meet the point in issue in the present case. I do not think that every omission in an application for execution is necessarily a material irregularity such as would vitiate the execution proceeding. Whether an omission is or is not material will depend on the particular facts of the particular case. The fact that the judgment-debtor never took this objection in the Executing Court will go at once to show that the omission was not a material one. Neither do I think that it was. It is quite clear that on the application as it stands execution could have proceeded and in the cases to which we have been referred the omission was such that the execution could not proceed. It has not been shown that the applicant had been in any way prejudiced by this omission. I am, therefore, of opinion that this omission was not a material one so far as the present case is concerned and that the execution proceedings have not been in any way vitiated by this omission.

6. The result is the appeal must fail and is dismissed with costs. Hearing fee three gold mohurs.

Mukerji, J.

I agree.


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