Calcutta High Court
Rajendra Prasad Agarwalla And Ors. vs Allahabad Bank And Ors. on 18 April, 1986
Equivalent citations: AIR1987CAL262, AIR 1987 CALCUTTA 262
JUDGMENT Bimal Chandra Basak, J.
1. This appeal is directed against a judgment and order passed by the learned single Judge of this Court on 16th July 1985 whereby the learned Judge allowed the application of the plaintiff decree-holder for amendment of the tabular statement filed on or about 26th July, 1984 in the manner shown in red ink in a copy of the tabular statement being Annexure X to the said application and for ancillary orders/directions.
2. The suit was filed by the Allahabad Bank Ltd., the predecessor-in-interest of the respondent No. 1 against the defendants whereby on the 4th Aug. 1972 a decree was passed against the defendant No. 2 for a sum of Rs. 71,722.45 P. with interest at the rate of 6% per annum on the principal sum of Rs. 70,000/- from 7-9-68 until realisation. On 26th July 1982 the execution application in tabular form was filed. In such Tabular Statement under column 10, that is, the mode in which the assistance of the Court is required, the following prayers were made : --
"(a) Leave be granted to the petitioner to execute the decree dt. 4th Aug. 1972 passed by this Hon'ble Court in the above suit against (i) Rajendra Prasad Agarwalla, (ii) Ghanshyamdas Agarwalla, (iii) Lalit Mohan Agarwalla, (iv) Bhawani Prasad Agarwalla and (v) Vinoy Kumar Agarwalla and each of them jointly and severally as being the partners of the said firm and to proceed with the execution of the decree against the properties and assets of the said partners;
(b) The said persons as mentioned in prayer (a) of the petition be directed to disclose their assets and properties by affidavit or otherwise in any reliable manner and also be directed to attend this Hon'ble Court on a day or days as may be fixed by this Hon'ble Court for being examined as to their assets and properties out of which the decree in this suit may be satisfied;
(c) In the event of disobedience and/or non-compliance with the directions given by this Hon'ble Court the said persons as mentioned in prayer (a) of the petition and each of them be produced before this Hon'ble Court by the Sheriff of this Hon'ble Court or by the Police Authority of Calcutta so that the said persons and each of them may be examined for ascertaining the assets and properties against which the decree may be satisfied;
(d) The decree be executed by attachment and sale of those properties and assets as may be found belonging to the said persons as mentioned in prayer (a) of the petition by appointment of a Receiver over the same with a direction to take possession of such properties and assets and by selling the same either by public auction or private treaty with a direction to pay the net sale proceeds to the petitioner, plaintiff/decree-holder for the satisfaction of the decree and costs of and incidental to this application. In the circumstances no further details of the properties or the value thereof could he given;
(e) The said persons as mentioned in prayer
(a) of the petition be directed to pay the costs of and incidentals to this application;
(f) Such further orders be passed and directions be given as may seem fit and proper to this Hon'ble Court."
3. It is to be pointed out that so far as the particulars of the immovable properties are concerned, the space provided for the same in the original Tabular Statement was left blank. Affidavits were filed by the parties and the matter was heard on part when an order was passed in terms of prayers (a) and
(b) of Column 10 of the Tabular Statement. The partners were directed to file their affidavit disclosing their assets within three weeks. On 6th May 1985 the appellants filed an affidavit disclosing some of their assets. On 9th May 1985 this application for amendment of Tabular Statement was filed by the Bank. By such application for amendment, the following changes were sought to have been made in the Tabular Statement in respect of the particulars of immovable properties. On the face of that Tabular Statement the following particulars were given, which was left blank before, as already mentioned : --
1. Flat No. 27 Municipal Holding No. 58. Sarat Bose Road, Calcutta-20.
2. Flat belonging to Ghanshyamdas Agarwalla at Municipal Holding No. 5, Sarat Bose Road, Calcutta-20.
In respect of Column 10 a new prayer was added being prayer (g) which is to the following effect : --
"(g) A Receiver be appointed over the share as mentioned in Annexure "X-1" and the National Saving Certificate standing in the name of Bhawani Prosad Agarwalla for Rs. 10,000/- and in respect of Flat No. 27 on 8th floor of No. 5B, Sarat Bose Road, Calcutta-20 approximately of value of Rs. 1,06,140.63 P. belonging to Bhawani Prosad Agarwalla and on Lansdowne Court Flat at No. 5, Sarat Bose Road, Calcutta-20, belonging to Ghanashyam Das Agarwalla of approximate value of Rs. 1,17,700.51 P. and out of the current account of Nursing Company and over Government Security Bond of Rs. 2,500/- in the name of B. P. Agarwalla and aitaching the account of B. P. Agarwalla with the State Bank of India, 23C, Acharya Jagadish Chandra Bose Road, Calcutta and the account in the name of Ghanashyam Das Agarwalla with StaTe Bank of India at 23C, Acharya Jagadish Chandra Bose Road, Calcutta-20 to sell and/or realise the decretal amount and to pay the same to the plaintiff judgment-debtor after deducting the costs and expenses of such a sale and/or realisation".
4. The parties have proceeded on the basis that such amendment was made in view of the said affidavit of the appellants disclosing such assets. Such application was contested and another set of affidavits was filed. As already stated, by an order dt. 16th July 1985 the learned Judge allowed such amendment. Against that this appeal has been preferred.
5. Mr. Ray appearing on behalf of the appellant judgment-debtor has submitted that the power of the court to allow any such amendment of the Tabular Statement is confined within the limits of Order XXI Rule 17 of the Code of Civil Procedure (hereinafter referred to as the said Civil Procedure Code) which provides as follows : --
"17. (1) On receiving an application for the execution of a decree 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 shall allow the defect to be remedied then and there or within a time to be fixed by it.
(1A) If the detect is not so remedied, the court shall reject the application :
Provided that where, in the opinion of the Court, there is some inaccuracy as to the amount referred to in clauses (g) and (h) of Sub-rule (2) of Rule 11, the court shall, instead of rejecting the application, decide provisionally (without prejudice to the right of the parties to have the amount finally decided in the course of the proceedings) the amount and make an order for the execution of the decree for the amount so provisionally decided.
(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.
(3) Every amendment made under this rule shall be signed or initialled by the Judge.
(4) When the application is admitted, the Court shall enter in the proper register a note of the application and the date on which it was made, and shall, subject to the provisions hereinafter contained, order execution of the decree according to the nature of the application:
Provided that, in the case of a decree for the payment of money, the value of the property attached shall, as nearly as may be, correspond with the amount due under the "decree."
He has submitted that in the present case it does not come under Order XXI Sub-rule (1) of Rule 17 of the Code. So far as the particulars of immovable properties are concerned, which were originally left blank, he had submitted that though in such case Rule 13 may apply but such particulars regarding immovable properties must have some nexus with prayers made Mr. Ray has drawn our attention to prayer (d) in the Tabular Statement and has submitted that it has no such nexus. So far as the prayer (g) is concerned, Mr. Ray's objection was much more strong. He has submitted that it is not covered by Order XXI Rule 17 as it is not a defect of the nature contemplated by the said Rule. He has submitted that in any event such amendment would substantially alter the nature of the execution proceeding. A new property is sought to be affected. Meanwhile the period of limitation for making a fresh application for execution has expired and because of the same, the appellants have acquired a valuable right.
6. Mr. Chowdhury appearing on behalf of the bank respondent has submitted that the Court has power apart from Order XXI Rule 17 to allow such amendment. In this connection he had relied on in the cases of Nourangilal Marwari v. Charubala Dasi reported in (1932) 36 Cal WN 618 corresponding to AIR 1932 Cal 766, Shekendarali Meah v. Abdul Gafur Chowdhury reported in AIR 1942 Cal 306, Rameshwar Lal Amar Chand Choudhury v. Commercial Cooperative Bank Ltd. , and Smt. Sabitri Bala Mallick v. Alak Ranjan Paul .
7. Before we deal with the submissions made before us we shall deal with the cases cited before us. In the case of Nourangilal Marwari v. Smt. Charubala Dasi reported in AIR 1932 Cal 766, it was held by a Division Bench of this Court presided over by Rankin, C.J. that "Order XXI Rule 17 of the Civil P.C. does not bar amendment of a petition for execution after it has been admitted, at any rate when the amendment does not concern formal defects covered by Rules 11-14." In that case a petition was allowed to be corrected by substituting the statement that the petitioner had become entitled to the rights of the decree-holder by survivorship for the statement that he had become so entitled by succession.
8. In the case of Shekendarali Meah v. Abdul Gafur Chowdhury (AIR 1942 Cal 306) (supra) another Division Bench of this Court consisting of Edgley and Biswas JJ., it was held as follows : --
"In my view, the following general principles may be deduced from the above cited cases. The law requires that a decree-holder in executing a decree should indicate in his application for execution, the various modes of execution, which he wishes the Court to adopt. He should also as far as possible indicate the properties of the judgment-debtors against which execution proceedings should be taken, it being of course understood that he should not take execution proceedings against more items of property than he considers sufficient to satisfy his decree, provided the application for execution is in accordance with law and has been duly registered. If a subsequent application is filed for the purpose of amending of list of properties against which the decree-holder wishes to proceed, the Court is vested with a reasonable discretion, to deal with the matter according to the circumstances of the case. Of course, to accept such a petition would result in effect in the amendment of the application for execution. Such an amendment should not be allowed if it has the effect of substantially altering the character of the execution proceedings, but in a case such as that with which we are now dealing in, which it was discovered on the objection of the judgment-debtors themselves that execution could not proceed against the attached properties, I am of opinion that the Court would exercise a reasonable discretion in accepting a supplementary petition such as that which was filed by the decree-holders on 10th Nov. 1938. In this view of the case, the decision of the learned Subordinate Judge must be affirmed and this appeal is dismissed. The only appearing respondents are the minors who are represented by the Deputy Registrar of this Court and as their costs have already been paid no further order with regard to costs is necessary."
In that case the decisions of the Full Bench in the case of Asgar Ali v. Troilokya Nath reported in (1890) ILR 17 Cal 631, and the cases of Piramal Gounka v. Basanti Das Chatterjee, AIR 19,35 Cal 614, Naurangilal v. Charubala Dasee AIR 1932 Cal 766 (mentioned above), Gnanendra Kumar Rai v. Shayama Sunder Jen, AIR 1918 Cal 73, Hayatunnessa Choudhurani v. Achia Khatun AIR 1924 Cal 131, Badri Narayan v. Baidyanath Pal, AIR 1935 Cal 143 and Aziz Rahaman v. Bepin Behari, AIR 1938 Cal 162 were considered by the Division Bench of this Court.
9. In the case of Rameshwar Lal Amar Chand Choudhary v. Commercial Cooperative Bank Ltd. (supra) it was held as follows : --
"Where in an execution application Rules 11 to 14 of Order 21 Civil P.C. as may be applicable are not complied with, the executing Court can get the defect remedied even after the period of 12 years from the date of decree, provided the execution application is pending, This will be treated as amending the original application itself. If, therefore, an execution application prays for the attachment and sale of immovable property, but at the same time no list of immovable property is given, it is non-compliance of Order 21 Rule 13 Civil P.C. and under Order 21 Rule 17 Civil P.C. the executing court is empowered to get the defect removed at any time, even beyond the limitation of 2 years' period, if the execution application is pending. But where there is no such defect at the initial stage, but later on some more property is sought to be added to the former list with a view that fresh property may be got attached and sold, then this will be treated as a fresh application and will not be allowed, if filed beyond the period of 12 years from the date of decree. Case law discussed."
10. Recently, a single Judge of this Court had an occasion to go into the question in Sabitri Bala Mullick v. Aloke Ranjan Paul (supra). After discussing the judgments in the cases of Rohini Kumar Roy v. Krishna Prasad reported in (1935) 39 Cal WN 1144, Kalipada Sinha v. Mahalaxmi Bank Ltd. and A, C. Sanyal v. R. M. Moitra reported in 11975) 79 Cal WN 546 the learned Judge relied on the decision in the case of Shekenderali Mean v. Abdul Gafur Chowdhury (supra) and held that the amendment which was allowed in that case, terminating the decree-holder to recover the possession of the suit land, had the effect of substantially altering the character of the execution proceedings which was for realisation of the decretal dues and the learned Judge held that in view of such decision in Shekenderali Meah case, AIR 1942 Cal 306, such amendment of the petition for execution should not have been allowed.
11. In the case of Rohini Kumar Roy v. Krishna Prasad Roy reported in (1935) 39 Cal WN 1144 (Supra) an application for execution was put in by one of the decree-holders and 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 21, Rule 15 of the Code. The judgment-debtor filed an application under Section 47 of the Code stating that the application was not in order and the execution could not proceed on the said application as one of the several joint decree-holders was not entitled to pray for execution in respect of his share of 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 that objection and dismissed the application. In the appeal the decree-holder prayed for amendment of his application for execution and he stated that he wished to proceed for the realisation of the entire amount due under the decree for his benefit and for the benefit of the other decree-holders. The learned Subordinate Judge who heard the appeal allowed the same 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. Against the said order the judgment-debtor preferred an appeal to direct the said amendment as the power of an executing Court in respect of amendments were defined in Order 21, Rule 17 and in no case applications for amendment should be allowed which did not fall within the scope of the said rule. In rejecting the said contention the Division Bench of this Court held that the Civil P.C. was not exhaustive and there was always the power of the Court to make orders in the interest of justice. It was further held in that case that Sections 151 and 153 of the Code entitled the Court to allow an amendment of a petition for execution of a decree in the interest of justice. Since the Court found that the objection was of a technical nature, it dismissed the appeal preferred against the amendment (para 15)
12. In the case of Kalipada Sinha v. Mahalaxmi Bank Ltd. (supra) the case of Rohini Kumar Roy 11935-39 Cal WN 1144) (supra) was quoted with approval. In that case the decree-holder was one Mahalaxmi Bank Ltd. and it was described as such in the execution petition. An application preferred by the decree-holder to the Central Government under Section 21 of the Companies Act, 1956 for change of its name from 'Mahalaxmi Bank Ltd.' to 'Maha Laxmi Bank and Trading Co. Ltd.' having been allowed, and necessary certificate issued by the Registrar of Joint Stock Companies Act, 1956, it made an application before the executing Court for amendment of the petition for execution by altering the Bank's name to the new name in which it had been incorporated. This Court rejected the objection of the judgment-debtor for such amendment being allowed and the Court held, relying upon the judgment in the case of Rohini Kumar Roy (supra) that there was no substance in that contention.
13. In the case of A.C. Sanyal v. R.M. Moitra (1975) 79 Cal WN 546 (supra) the decree-holders filed two applications for execution of a money decree with a prayer for arrest and detention of the judgment-debtor. After some time each of the two decree-holder asked for assistance of the executing Court for realisation of the decretal sum by attachment and sale of immovable properties of the judgment-debtor though that prayer was not initially made in any of the two applications for execution. That prayer was allowed and when attachment of the immovable properties of the judgment-debtor was made, the decree-holder came to know that the said properties were subject to attachment in execution of another decree for a large amount. The decree-holder thereafter applied again before the executing Court for amendment of execution applications seeking assistance of the Court by attachment and sale of moveable properties of the judgment-debtor. As the prayer was allowed the judgment-debtor preferred an application under Section 151 of the Code. The matter ultimately came up to this Court and this Court rejecting the contention of the judgment-debtor, held that the decree-holders, when filing applications initially might have asked for all or any of the five modes of assistance provided in Clause (J) of Sub-rule (2) of Rule 11 of Order 21, but he asked for assistance by only one of those several modes and that should not be any ground for rejection of his application for amendment seeking assistance in other modes. The Court held that the execution Court had ample powers under Sections 151 and 153 of the Code to allow an amendment of petition for execution of a decree filed under Order 21 Rule 11 of the Code and relied upon the cases of Kalipada Sinha and Rohini Kumar Roy (1935-39 Cal WN 1144).
14. The above decisions unequivocally lay down the proposition that amendments to execution applications can be allowed in the interest of justice, even if and also at a stage when Order 21 Rule 17 cannot be invoked, by invoking the provisions of Sections 151 and 153 of the Code. The question, however, still remains whether an amendment which seeks to change the nature and character of the execution application, can be allowed. As stated earlier, in the instant case the execution application initially filed was for realisation of the decretal dues and by the amendment and decree-holder prayed for recovery of possession of the suit lands. There is no manner of doubt that the amendment completely changed the nature and character of the execution application; and it was not one of those amendments which was of a technical nature or by which the decree-holder sought assistance of the Court for its execution in a different mode other than in which it was earlier prayed for as in the decisions cited above. (Para 18)
15. From the aforesaid decisions it is apparent that the principle is now well settled. An amendment of an execution application is not restricted to Order 21, Rule 17 only. Order 21, Rule 17, Sub-rule (1) contemplates the situation when the applicatibn is first filed. The purpose of the same sub-rule is to allow an opportunity to be given at the very onset of making such application, so that formal defects of the nature specified in Rules 11 to 14 of Order 21 may be rectified. We need not go into any question of so-called the distinction between Sub-rule (1) and Sub-rule (4) of Rule 17 as pointed out by the learned single judge as it is not necessary to do so in the present case. In our opinion this court has ample jurisdiction to allow an amendment of such application though it is not covered by Rule 17. However, in allowing such amendment the Court has to consider whether it has the effect of substantially altering the character of the execution proceedings.
16. Therefore we shall now examine as to whether, though the Court has such jurisdiction, the Court should have exercised such discretion in the facts and circumstances of this case. So far as the amendments are concerned, it has to be remembered that in the original application there was also a prayer in terms of prayer (b) which was allowed by the Court on 21st Mar. 1985. Pursuant thereto an affidavit was filed disclosing some assets and such amendment application has been made as a result of disclosure of the assets therein. Keeping this in mind we shall examine the question as to whether in the facts of this case allowing such amendment would amount to altering the character of the execution proceeding. So far as the particulars of immovable properties, which were left blank originally, this is sought to be filled up by specifying the properties in the case of the Tubular Statement. In our opinion, as there is disclosure of such properties by the affidavit of the appellants themselves, the Court did not act improperly by allowing the blank to be filled. This is a defect within the meaning of Rule 13 and comes under Rule 17. When the application was received such rectification could have been directed. But even if it was not so done in that stage, the Court is not precluded from giving leave to fill up such blank at a later stage. In any event in view of the affidavit subsequently filed disclosing the assets, such amendment can be allowed filling up such blank. In our opinion, it cannot be said as sought to be argued on behalf of the appellant, that such particulars of immovable properties have no nexus with the prayer. Certainly it has nexus having regard to the prayer (d) which was already there. The prayer was made for attachment and sale of the properties belonging to the persons mentioned in prayer (a) and appointment of Receiver for the same.
17. So far as the second contention of Mr. Ray is concerned, i.e. inclusion of new prayer (g) to the Tabular Statement set out hereinbefore, this requires serious consideration. On the face of it, it seems that it is a new prayer and the question is whether in allowing such alteration now, the effect would be to substantially alter the character of the execution proceeding. If it has been totally a new prayer, that question should have been seriously considered having regard to the fact that at the time of applying for such amendment time has already expired. A fresh application for amendment would have been barred on that date : expiry of the period of limitation confers certain valuable rights on the persons who have benefited by such expiry of the period. However, it has to be pointed out that in the present case the prayer (d) was already there. There was also a prayer in terms of prayer (b) for direction to disclose the assets. Such an order in terms of prayer (b) was made by the Court and pursuant thereto an affidavit was filed on 6th May, 1985, disclosing the assets. Immediately thereafter on 9th May, 1985, this application for amendment of the Tabular Statement was filed on the basis of such disclosure. Admittedly such particulars in new prayer (g) are on the basis of such affidavit. In our opinion this is not a new case or a totally new prayer but it is merely a case of giving the particulars of the properties in aid of para (d). There is a substantive prayer in terms of prayer (d). After disclosure of the assets the specific properties are sought to be put in by an additional para (g). Para (g) is in the nature of particulars of para (d). In our opinion, this amendment would not substantially alter the nature and character of the original execution petition.
18. For the aforesaid reasons we dismiss this appeal. All interim orders are vacated.
19. Such, amendment and verification are to be carried out within a period of fortnight from this date.
20. However, we may point out one thing. All these difficulties have been created in view of the fact that the Bank concerned initiated the execution proceedings admittedly only a few days before the expiry of the period of limitation, which is 12 years. All troubles have been created due to this fact because when the application for amendment was made, upon disclosure of the assets pursuant to an order made by the Court as prayed for in the execution application the period of 12, years has already expired. If the Bank which deals with the public money had taken a little care about the matter, such a situation would not have arisen. We do not find any explanation of the Bank from the records before us why they waited for near about 12 years and made such an application for execution only a few days before the expiry of the period of limitation. We strongly disapprove the laches and inaction on the part of the Bank.
21. So far as the costs are concerned, in view of such laches of the Bank, there will be no order as to costs in the Appeal and also in the application for amendment in the Lower Court.
22. All parties concerned to act on a signed copy of the operative portion of the judgment.
Sachi Kanta Hazari, J.
23. I agree.