Patna High Court
Sohan Uraon And Ors. vs Puran Prasad Uraon Bakhla And Ors. on 9 July, 1970
Equivalent citations: AIR1971PAT398, AIR 1971 PATNA 398
JUDGMENT Shambhu Prasad Singh, J.
1. This is a judgement-debtors' appeal under Section 47 of the Code of Civil Procedure. An application for execution of a decree dated 23rd of January 1959 was filed before the Court below on 12th of June 1967. The appellants took an obiection that it was time barred. By the impugned order, the objection has been reiected and the execution petition has been held to be within time.
2. The facts relevant for considering the question of limitation, the only question that arises for decision in this appeal are that earlier another execution petition was filed oil the 2nd of January 1962. that application was dismissed for default on 27th of January 1962 and the new Limitation Act (Act 36 of 1963) came into force on the 1st of January 1964.
3. Under the old Limitation Act (Act 9 of 1908). the period prescribed for filing a petition for execution of a decree under Article 182 of the first Schedule of that Act was three years, unless the decree was registered, from the date the decree was passed. But where an application for execution had been previously made, the period was to be counted from the date of the final order passed on that application for execution or to take some step-in-aid of execution, if made in accordance with law. Under Section 48 of the Code of Civil Procedure, no execution for a decree, unless it was for injunction could be started after the expiry of twelve years from the date of the decree. Under the new Limitation Act. the time limit prescribed for filing an application for execution of a decree under Article 136 of the Schedule to the Act is twelve years from the date of the decree. The present application for execution has been filed within twelve years from the date of the decree. It is not disputed on behalf of the appellants that if the previous execution petition which was filed on 2nd of January 1962 was in accordance with law. the present execution petition is not time barred.
4. Mr. L K. Choudhary appearing lor the appellants, however, has contended that the previous execution petition was not in accordance with law and. therefore, the present execution petition is time barred. In the Court below, the appellants merely produced a certified copy of the ordersheet in the previous execution case which shows that it was dismissed for default on 27th of January. 1962 No materials were produced before that Court to show what were the defects in the execution petition. It is well settled that the presumption is that the execution petition was in accordance with law & the parties who wish to contend that it was not are bound to prove it. It is also well settled that the words "in accordance with law" should not be pressed too far in favour of a iudgment-debtor who has not paid his debt, and the Courts ought to take a liberal view as to the meaning of these words. In the circumstances, the appellants having failed to produce necessary materials before the Court below to show what were the defects in the previous execution petition, it was perfectly justified in coming to the conclusion that application was in accordance with law and. therefore, the present application was not time barred.
5. Mr. Choudharv has produced before me a certified copy of the office notes in the previous Execution Case No. 1 of 1962. The defects pointed out by the office were (1) Date of decree incorrect and (2) written process and process fee not filed. It is not the contention of Mr. Choudhary that because the written process and process fee were not filed, the petition was not in accordance with law, but he has submitted that as the date of decree was incorrect, the petition was defective, and not in ac-cordance with law. In support of his submission, he has drawn my attention to Rules 11 and 17 Order 21 of the Code of Civil Procedure, Sub-rule (2) of Rule 11 lays down what particulars a written application for execution of a decree should contain. One of the particulars is "the date of the decree". Sub-rules (1) and (2) of Rule 17 are as follows:
17. (1) "On receiving an application for the execution of a deeree as provided by Rule 11, Sub-rule (2), the Court shall ascertain whether such of the requirements of Rules 11 to 14 as may be applicable to the case have been complied with; and. if they have not been complied with, the Court may reject the application, or mav allow the defect to be remedied then and there or within a time to be fixed by it.
(2) Where an application is amended under the provisions of Sub-rule (1). it shall be deemed to have been an application in accordance with law and presented on the date when it was first presented."
As the Court before which the previous execution petition was filed allowed time to the decree-holders to amend the execution petition by inserting the correct date of the decree in place of the incorrect date, and that was not done within the time allowed. Mr. Choudharv contends that that application cannot be "deemed to have been an application in accordance with law". It is not a case where date of the deeree was not at all stated in the execution petition. A date was stated, but that was not the correct date. In the instant case, it is not necessary to go into the question whether where the date of the decree is not at all stated in the execution petition, it is in accordance with law or not. In mv opinion, an execution petition cannot be held to be not in accordance with law merely because the date of the decree stated therein is incorrect. Mr. Choudhary has placed reliance on the decision in Bhagwat Prashad Singh v. Dwarka Prasad Singh, AIR 1924 Pat 23. The decision in that case is that the previous execution petition was in accordance with law. Dawson Miller. C. J. who delivered the judgment in that case made the following observation:
"Order 21 Rules 11 to 14 of the Civil Procedure Code give the particulars which the law requires to be stated in an application for execution. If the application conforms with those rules and is presented upon a properly stamped paper I think, it must be taken to have been properly presented in accordance with law."
According to Mr. Choudhary, it follows from this observation that where the application for execution does not conform to Rules 11 to 14 of the Code, it is not in accordance with law. One of the defects in the execution petition which was under consideration in that case was that no court-fee was paid for the additional amount of interest claimed between the date of the plaint and the date of the application. In spite of the use of the words "is presented upon a properly stamped paper" in the observation quoted above, it was held that the application could not be held to be not in accordance with law for non-payment of the requisite court-fee. Be that as it may. that decision is not a direct authority for the proposition that where the date of the decree is incorrectly stated in the execution petition, it is not in accordance with law.
6. On the other hand. Mr. Sudhir Ghose appearing for respondent No. 1 has drawn my attention to a passage in the case of Keshawesarindra Sahi v. Rani Debendra Bala Dassi, 4 Pat LJ 213 at p. 233 = (AIR 1918 Pat 41 at P. 50). It runs as follows:
"The next point urged is that the applications for execution are not made in accordance with law. and that the last application is not made in continuation of the previous applications. In support of the contention that the applications are not in accordance with law Mr. Hasan Imam points to certain defects in drawing up the various applications for execution. The defects to which he refers are (1) that the correct date of the decree has not been entered; (2) that all payments which were made under the decree have not been mentioned in the application; (3) that the properties mentioned in the different applications are not the same, and (4) that the parties are not the same. We are of opinion that there are no material defects in any of the execution applications, and we are prepared to agree with the learned Subordinate Judge that the proceedings were all one continuous proceeding....."
Mr. Choudhary has attempted to distinguish this decision on the ground that their Lordships were not deciding the question of limitation in that case, but merely the question of continuity of the proceeding. That is, no doubt, correct, but their Lordships were interpreting the expression "in accordance with law" with respect to execution petitions and there is no reason why that interpretation of the term should not be applied to Article 182 of the old Limitation Act. At another place at page 234 of the report (4 Pat LJ) = (at p. 50 of AIR 1918 Pat) their Lordships pointed out that a mistake in the date of the decree cannot be considered to be a material defect, because there could be no doubt in the mind of the judgment-debtor as to the intention of the decree-holder or as to what decree it was intended to execute. In the instant case, also, other details of the decree under execution must have been supplied in the previous execution petition of the year 1962 and there could be no doubt in the mind of the appellants as to what decree the respondents intended to execute. I, accordingly, hold that the previous execution petition cannot be said to be not in accordance with law because of the defect that the date of the decree stated therein was incorrect.
7. Mr. Ghose has also oblected to my taking into account the certified copy of the office notes which was not produced in the Court below. No application has been filed explaining why that could not be filed there. Therefore, there appears to be substance in the objection taken by Mr. Ghose, but even then. I have considered the matter on merits.
8. Mr. Choudhary has further contended that the execution petition, of the year 1962 was not in accordance with law, inasmuch as the decree sought to be executed therein was not being executed for the benefit of all the decree-holders. True it is that such an obiection was taken in the obiection petition filed by the appellants in the Court below, hut no material was placed either in the Court below or has been placed before me in this regard. In the circumstances. it has to be presumed that there was no such defect in the execution petition of the year 1962 and that was in accordance with law.
9. No other argument was advanced by Mr. Choudharv in support of the appeal.
10. In the result, I find no merit In this appeal and it is, accordingly, dismissed with costs.