Patna High Court
Kumar Taranand Sinha vs Thakur Chandra Bhusan Pd. Singh And Ors. on 3 May, 1967
Equivalent citations: AIR1968PAT458, AIR 1968 PATNA 458
JUDGMENT G.N. Prasad, J.
1. This is a decree-holder's appeal against the order of the executing Court upholding the objection of the judgment-debtors under Section 47 of the Code of Civil Procedure.
2. The decree under execution was passed on 8-2-1952 in Rent Suit No. 1 of 1951. The decree was put in execution in Execution Case No. 26 of 1954, which was dismissed for default on 28-7-1955. A second execution case, namely. Execution Case No. 23 of 1958 was filed by the decree-holder on 18-7-1958. and the notice required under Order 21, Rule 22. Code of Civil Procedure, was duly served upon the judgment-debtors. On 11-2-1960, however, the decree-holder filed an application to the executing court for amendment of the execution petition by deleting the property originally mentioned therein and substituting another property and to start the execution proceeding afresh. This petition was allowed on 4-3-1960, and on 11-3-1960. an order was passed for attachment of the substituted property. On 21-8-1961. the judgment-debtors filed an application under Section 47. Code of Civil Procedure, objecting to the executability of the decree mainly on two grounds; (i) the execution petition as originally filed on 18-7-1958 was not in accordance with law since admittedly the property originally mentioned therein did not belong to the judgment-deb-tors; and (ii) the petition for amendment of the list of property filed on 11-2-1960 must be deemed to be a fresh application for execution, but the same was barred by limitation, having been presented more than three years after the date of the final order which was passed in Execution Case No. 26 of 1954 on 28-7-1955.
This objection of the judgment-debtors, which was registered as Miscellaneous Cas" No 27 of 1961. was allowed by the executing Court on 7-1-1963. The executing Court passed a further order recalling its order dated 4-3-1960, whereby it had allowed the petition for amendment of the execution petition dated 11-2-1960. The decree-holder thereupon took an appeal to the lower appellate Court but it was dismissed on 30-4-1964. Being thus aggrieved, the decree-holder has preferred this second appeal.
3. On the question that the execution case as originally levied on 18-7-1958 was not in accordance with law, there can be no legitimate room for any controversy. Upon the decree-holder's own case, the property included in the original execution petition did not belong to the judgment-debtors, and it was for this reason that the decree-holder had filed his petition on 11-2-1960 for deleting that property and inserting another property therein. It is well settled that in order that an application for execution of a decree may be in accordance with law within the meaning of Articlr 182 (5) of the Limitation Act. 1908, it must not only be made to the proper court, but it must also be directed against some property belonging to the judgment-debtor or in which the judgment-debtor has some interest, so that the executing Court may be in a position to take steps for executing the decree. The executing Court cannot be in a position to take any such step where the property sought to be proceeded against does not belong to the judgment-debtor or in which the judgment-debtor has no interest whatsoever.
It is manuest that it had become necessary, for the decree-holder to ask for amendment of his original execution petition on the ground that the property as originally mentioned in his execution petition neither belonged to the judgment-debtors nor they had any interest therein. According to the decree-holder, the mistake had occurred due to the mistake of the scribe who had included in the original execution petition certain property belonging to the co-sharers of the judgment-debtors. Whatever might have been the reason for the mistake, there can be no doubt that the execution petition as originally presented on 18-7-1958, was, upon the decree-holder's own case, not in accord-lance with law.
4. The mistake was sought to be remedied by the petition for amendment which the decree-holder had filed on 11-2-1960. That amendment petition in the eye of law was tantamount to an execution petition made in accordance with law, since, the property sought to be inserted in the original execution petition admittedly belongs to the iudgment-debtor or in which the judgment-debtors have interest The difficulty with which the decree-holder, however, is faced with is that his petition dated 11-2-1960 was made more than three years after the date of the final order in the first execution case. namely Execution Case No. 26 of 1954. The execution petition filed on 18-7-1958 not being a petition for execution of the decree in accordance with law within the meaning of Article 182(5) of the Limitation Act, 1908, the petition filed on 11-2-1960, treated as a petition for execution of the decree made in accordance with law. must fail on the ground of limitation, because this petition was filed more than four years after the date of the final order in Execution Case No. 26 of 1954.
The contention of the decree-holder, however, is that once the petition dated 11-2-1960 had been allowed, as it was allowed on 4-3-1960, it must date back to 18-7-1958, when Execution Case No. 23 of 1958 was filed. This contention of the decree-holder can only succeed if it is held that the amendment of the execution petition, which was ordered to be made on 4-3-1960. was an amendment contemplated by Order 21, Rule 17 of the Code of Civil Procedure. Sub-rule (1) of Rule 17 enables the executing Court to allow the defects in the execution petition to be remedied where the Court finds that the requirements of Rules 11 to 14 of Order 21 of the Code, so far as they may be applicable to the case, have not been complied with And Sub-rule (2) of Rule 17 provides that where the application for execution of the decree is amended under the provision 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. The question, therefore, arises whether the amendment which was ordered to be made on 4-3-1960 was for remedying the defects in the original petition as permitted by Sub-rule (1) of Rule 17.
The contention of the learned counsel for the decree-holder is that the amendment was within the scope of Sub-rule (1) of Rule 17, inasmuch as, it related to the requirements of Rule 11(2)(j)(ii) read with Rule 13, which provide for the execution of the decree by the attachment and sale or by the sale without attachment of any property of the judgment-debtor. In my opinion, it is impossible to accede to the contention of the learned counsel that the amendment ordered to be made on 4-3-1960 fell within the ambit of Sub-rule (1) of Rule 17. In my opinion. Order 21, Rule 17 is intended to deal with only formal amendments, without which the application for execution or attachment will not be regarded as complete. It cannot cover a case like the present where the decree-holder asks the Court to delete from his application a property which is fully described and to substitute in its place an entirely different propertv with a totally different description.
The view that I take is borne out by a Bench decision of this Court in Gajanand Sha v. Dayanand Thakur, AIR 1943 Pat 127. That was a case where the property described in the application for amendment was totally different from the description given in the original application and the decree-holder wanted, in effect, to substitute a new property for the property mentioned in the original execution application. Speaking for the Court. Fazl Ali, J. fas he then was) made the following observation:
The view which has been generally taken as to the meaning of Order 21, Rule 17 is that it is intended to deal with only formal amendments but for which the application for execution or attachment will not be regarded as complete For example, under Rule 11 the judgment-debtor is required to state such details as the number of the suit names of the parties, the date of the decrw, etc., in his application and if upon scrutiny of his application it appears that any of these details is missing in the application, the Court may Rive an opportunity to the decree-holder to remedy the defect. Similarly, what Order 21, Rule 13 contemplates is that the property which is sought to be attached should be described in such a way in the application for attachment as to show that the property is identifiable. If, therefore, there are found wanting in the description such details as are necessary for the proper identification of the property, the Court has full power to allow the decree-holder to remove the defect by supplying such details. Rule-17, however, was never intended in my opinion to enable the decree-holder to ask the court to delete from his application a property which is fully described and to substitute in place thereof another property with a totally different description. In my opinion, therefore the present case cannot be said to be covered by Order 21. Rule 17."
His Lordship further discussed the question as to whether in a case where an entirely new property is sought to be substituted in the execution petition, the petition for amendment of the original petition can be regarded as a continuation of that application, and laid down the law in the following words;
"On this point numerous cases were cited by both parties, but as far as I can see the preponderance of legal opinion is in favour of the view that where the decree-holder wishes by means of a subsequent application merely to correct any mis-description of the property mentioned in his application for execution, his application may be regarded as a continuation of that application, but where he tries to substitute a new property which is quite different from the property against which he wished to proceed in the first instance, his application must be regarded as a fresh application for execution."
In support of his view, his Lordshij. relied upon two earlier decisions of this Court; one in Jagannath Das v. Chamu Raghunath, ILR 8 Pat 462 = (AIR 1929 Pat 407) and the other in Ram Ran Bijay Prasad Singh v. Kesho Pd Singh. 21 Pat LT 407 = (AIR 1941 Pat 635). This Bench decision has been consistentlv followed in subsequent cases in this Court, see for example Mahidhar Roy v. Raja Kalyani Pd. Singh, AIR 1945 Pat 71 and Haridas Ghosh v. Jogendra Nath Sahdeo. 1964 BLJR 359 = (AIR 1964 Pat 480).
5. In an earlier Bench decision in Lal Inderjit Nath Sahido v. Maharaja Pratap Udai Nath Sahido. AIR 1942 Pat 84, the original execution application was presented for executing the decree as a rent decree, but subsequently the decree-holder applied for sale of the right, title and interest of the judgment-debtor in the same property on the footins that the decree was a money decree. The question which arose for con sideration in this Court was whether the subsequent application was in continuation of the original application. Fazl All, J, referred to the decision of the Privy Council in Maharaja Bahadur SinRh v. A. H. Forbes, AIR 1926 PC 209 and to AIR 1941 Pat 835, and observed as follows :--
"The test which seems to have been laid down in both these cases for determining whether a certain application should be deemed in law to be a fresh application for execution or not is to find out whether the first application has been substantially abandoned and whether the effect of the subsequent application marks such substantial departure from the original application as to make it impossible to hold that it was a continuation thereof According to these decisions in either case the subsequent application must be regarded as a fresh application for execution."
Applying this test to the facts of the present case, I must hold that the petition for amendment filed on 11-2-1960 was a fresh application for execution, making as it did, a substantial departure from the original execution petition filed on 18-7-1958. and as such it was not a continuation thereof
6. Learned counsel for the appellant contended that the view expressed by Fazl Ali, J in these two decisions requires reconsideration by a larger Bench because it is somewhat inconsistent with the decision of Ramaswami. J sittine with Agarwala. C. J. in Deo Narain Singh v. Bibi Khatoon. AIR 1949 Pat 401. But the material facts of Deo Narain Singh's case. AIR 1949 Pat 401 were different. In that case, the decree-holder had applied for addition of a new property in the execution petition. Ramaswami J. pointed out that it was open to the decree-holder to amend his original execution petition by addition of a new property provided that the decree had not become barred by limitation, and that it was not tantamount to substituting an altogether new property for the property against which the decree-holder wished to proceed in the first instance. It is, therefore, clear that a case where some more properties are sought to be added in the execution petition stands on a different footing from a case like the present where an entirely new property is sought to be substituted for the property mentioned in the execution petition in the first instance. I am. therefore, not satisfied that the view of Ramaswami. J. in Deo Narain Singh's case. AIR 1949 Pat 401 is in any way inconsistent with the view of Fazl Ali, J. in the two earlier decisions referred to above.
7. Learned counsel for the appellant also relied upon a Bench decision of the Orissa High Court in Dolagobinda Sahu v. Chakradhar Mohapatra AIR 1955 Orissa 94. That was also a case where the execution petition was sought to be amended by addition of fresh properties to the list of properties appended to the original execution petition. That was not a case like the pre-sent where the property appended to the original execution petition was deleted and an entirely new property was substituted therein. Besides, the question of dating back which has been raised in the instant case did not fall for consideration in the Orissa case Learned counsel, however, also relied upon the Orissa case in support of the contention that the Court has power, apart from the provision of Order 21. Rule 17, Code of Civil Procedure, to amend an execution petition provided the decree is alive and has not become barred under Section 48 of the Code. But that is of no avail to the ap-pellant oecause if the amendment does not fall within the ambit of Order 21, Rule 17, then even if it might be allowed, presumably under the inherent powers of the Court under Section 151 of the Code, it would not date back to the original execution petition and the decree holder cannot get over the bar of limitation under Article 182(5) of the Limitation Act 1908.
8. Upon a consideration of the various authorities referred to above, I am definitely of the opinion that the amendment petition of the 11th February 1960 was a fresh petition for execution of the decree which had been filed beyond the period of three years mentioned in Article 182(5) of the Limitation Act, 1908 and as such it was barred by limitation, and the bar of limitation cannot be saved because the amendment petition did not date back to the original execution petition filed on 18-7-1958
9. Learned counsel for the decree-holder then contended that the present objection of the judgment-debtor was not maintainable since it was not raised earlier when the notice under Order 21, Rule 22, Code of Civil Procedure was served upon them prior to 11-2-1960. when the decree-holder had applied for amendment of the execution petition. In support of his contention, learned counsel relied upon Lall v. Raj Kishore Narain Singh, AIR 1933 Pat 658. where it was held that ii. notwithstanding the service of notice under Order 21, Rule 22, the judgment-debtor does not ap-peai and object to the execution, he cannot escape the consequent of his laches. It will, however, be noticed that in the same decision it was further held that there may be circumstances in which the Court may find that though the judgment-debtor wanted to take an objection, he was prevented by sufficient cause from taking it earlier, and in that case he will not be debarred from taking the objection at a subsequent stage. In the present case, the iudgment-debtors could have no reason to object to the execution as originally applied for. because at that stage the execution was not directed against anv property belonging to them or in which they had any interest. The occasion for their objection arose only after the decree-holdei applied for the amendment of the execution petition by inserting therein the property of the judg-ment-debtors for the first time. The judgment-debtors were, therefore. entitled to raise the present objection after their pro perty was attached under the order of the executing Court. The contention of the learned counsel must, therefore, be overruled.
10. Learned counsel then contended that the executing Court was in error in recalling by the present order the order which it had passed on 4-3-1960 allowing the amendment petition. But this contention is of no avail to the appellant because even if the amendment order were allowed to stand, the amendment petition as a fresh execution petition cannot escape the bar of limitation under Article 182(5) of the Limitation Act. 1908.
11. On behalf of the appellant an application appears to have been made in the lower appellate Court for permission to lead additional evidence in order to prove that the iudgment-debtors had made part payment towards the decretal dues on 30-9-1958 and 17-1--1961. The purpose of the decree-holder evidently was that the alleged payments would have the effect of extending the period of limitation for execution of the decree. But the lower appellate Court rejected the petition for additional evidence. Learned counsel for the appellant contended that the rejection of the petition for additional evidence was unjustified. In my opinion, there is no substance in this contention. Upon the decree-holder's own case, the alleged payments were not certified in Court as required under Order 21, Rule 2, Code of Civil Procedure, and, therefore, under Sub-rule (3) of the said rule, the payments, if any, could not be recognised by the Court executing the decree. Therefore, the petition for additional evidence was futile. ] am not satisfied that it was unjustifiably rejected by the lower appellate Court which has pointed out that the alleged payments being beyond three years from the date of the final order in the first execution case, could not serve to extend the period of limitation.
12. Lastly, it was contended that the lower appellate Court ought to have taken into consideration the provisions of Article 136 of the Limitation Act of 1963 which had come into force while the appeal in the lower appellate Court was pending. That Article has done away with the three-year rule of limitation which was prescribed under Article 182 of the old Act and provides for only one period of twelve yean from the date of the decree as the limitation period for an application for execution of a decree. But this contention of the learned counsel ignores the provisions of Section 31 of the new Limitation Act which provides in clear terms that nothing in this Act shall, (a) enable anv suit, appeal or application to be instituted, preferred or made, for which the period of limitation prescribed by the Indian Limitation Act. 1908 (9 of 1908), expired before the commencement of this Act. or (b) affect any suit, appeal or application instituted, preferred or made before, and pending at, such commencement. The new Act came into force on the 1st January 1964, but the present execution petition was barred by limitation long before that date. The new Limitation Act would not, therefore, come to the aid of the appellant in this case.
13. All the contentions raised on behalf of the appellant have failed. The appeal is. accordingly, dismissed with costs.