HANAMAPPA SHIDDAPPA Vs. NINGAPPA RANGAPPA

JUDGEMENT

(1.) THIS is a decree-holder's appeal against a decision of the lower appellate Court rejecting an application for amendment of his darkhast on the ground of the 12 years' rule provided by Section 48 of the Civil Procedure Code. He asked for execution of his decree by attachment and sale of certain landed property of the judgment-debtor. The judgment-debtor being an agriculturist, the papers were sent to the Collector and the Collector took nine years to dispose of the application. The decree was not fully satisfied by the sale held by the Collector and the decree-holder thereupon asked for amendment of his application by the addition of a prayer for the attachment and sale of a house belonging to the judgment-debtor. The amendment was allowed by the trial Court; but the lower appellate Court refused it and the decree-holder now comes in appeal to this Court.

(2.) THERE are two ways of regarding the decree-holder's application for amendment of the decree. It can be regarded as a new application for execution, or it can be regarded as an application for the amendment of an existing prayer for execution; and in defence of the lower Court's decision it is argued that in either case the application is barred by time. It was argued for the decree-holder that the case fell within the provisions of Clause 11 (3) of the third schedule to the Civil Procedure Code, so that the decree-holder was entitled to exclude the period during which the matter had been before the Collector even for the purposes of the 12 years' rule. We are prepared to agree that he would be entitled to exclude that period if the provisions of Clause 11 were otherwise satisfied. The scheme of the clause is that during the period referred to in Sub-clause (1) the judgment-debtor should not be able to alienate the property in any way without the permission of the Collector, and no civil Court may issue any process against the property; and then there follows Sub-clause (2), which says that during the "same period" no civil Court should issue any process of execution in respect of any decree which the Collector is required to execute; and then by Sub-clause (3) the "same period" shall be excluded in calculating the period of limitation applicable to the execution of any decree "affected by the provisions" of this paragraph in respect of any remedy of which the decree-holder has been temporarily deprived. The "same period" occurring in Sub-clause (2) and again in Sub-clause (3) is clearly the period referred to in Sub-clause (1), so that a decree-holder would be entitled to exclude the period during which the execution had been before the Collector provided that the rest of the clause were satisfied. Unfortunately in this case it is impossible to hold that the provisions of the clause have been altogether satisfied by the decree-holder. The words "in respect of any remedy of which the decree-holder has been temporarily deprived" are now being applied by the decree-holder to the house of which he is now seeking attachment and sale. But it was always open to him to include the house in his application for execution, and it cannot be said that the fact of the sale of the land having been before the Collector for so many years deprived the decree-holder of his remedy to include the house in his application for execution. If therefore the decree-holder is to succeed, he must succeed on some ground other than the provisions of Clause 11 of Schedule III. What he says is that the application for amendment is nothing more than an application for amendment in a pending darkhast and is no more affected by the 12 years' rule than any other matter arising in the same darkhast. That it is an amendment of the darkhast is strongly contested by the judgment-debtor, whose learned advocate argues that nothing remained to be done out of all that the decree-holder had asked the Court to do in his original application, and therefore the application for amendment can be regarded only as a new application for execution. But we do not think that this argument is justified in the circumstances of the present case. It is true that the property of which the judgment-debtor applied for sale has been sold; but no order for costs had been passed at the time when the application for amendment was made, and it follows that the application for execution was still in being. It is no doubt a technicality; but we are unable to see any reason why the decree-holder should not be entitled to avail himself of a technicality in 'his favour, since it is an undoubted fact that the judgment-debtor still owes him money and has not paid him.

(3.) I should mention that the Courts look with disfavour upon decree-holders who seek to attach and sell more property in execution than is absolutely necessary for the purposes of satisfying the decree, and that disfavour is reflected in the proviso to Sub-rule (4) of Rule 17 of Order XXI. It was therefore the duty of the decree-holder to apply for the attachment and sale of only so much property as he thought would be necessary to satisfy his decree, and it would be unfair to penalise him for his failure to apply for the attachment and sale of more property merely because after nine years the Collector has failed to secure a price which would satisfy the decree.