SHYAMAPADA CHOUDHURY Vs. SAHA CHOUDHURY

JUDGEMENT

(1.) THIS appeal is by the judgment-debtor defendant No. 6 and is against the judgment and order dated 6th March, 1973 passed by A. K. Sarkar J. allowing an application for execution of the decree for costs awarded, in favour of the defendant Nos. 1, 2 and 3.

(2.) THE facts giving rise to the execution application are briefly as follows: In 1951 one Ramanath Das and others instituted a suit being suit No. 3367 of 1951 in this Court against the defendants. That suit was dismissed with costs on the 1st May 1959 and it was decreed that the plaintiff and the defendants sailesh Chowdhury, since deceased, and Shyamapada Choudhury, the present appellant, do pay to the defendant Nos. 1, 2 and 3 their costs of the suit including the reserve costs and costs of commission to be taxed by the Taxing Officer of this Court. Against the said decree the plaintiff alone preferred an appeal. The appeal was dismissed only with this modification that the decree awarding costs against the plaintiff was set aside and the rest of the decree was affirmed on June 7, 1962. It is admitted by both parties that there was no stay of operation of the decree passed by the trial court nor was there any injunction restraining the defendant Nos. 1, 2 and 3 from executing the decree for costs. On August 14, 1963, the decree for costs was taxed in the sum of Rs. 18,538. 56p. and allocature was issued by the Taxing Officer. On 2nd May, 1972 a tabular statement supported by an affidavit of Sri P. K. Roy Choudhury was filed for execution of the said decree for costs on behalf of the decree-holders. In the said tabular statement the decree-holder prayed, inter alia, for attachment and sale of premises No. 1, Raja Naba Kissen Street, Calcutta, belonging to the defendant Shyamapada Choudhury. This application for execution was opposed on behalf of the defendant No. 6 the judgment-debtor who is the appellant in this appeal. The trial court overruled the objections urged on behalf of the judgment-debtor and allowed the application for execution. The defendant No. 6 has come up on appeal against the said judgment and order of the trial court.

(3.) MR. P. K. Dutt. learned Counsel appearing on behalf of the appellant has, in the first place, urged that the present application for execution is not maintainable as it is not in compliance with Rule 10 of Chapter XVII of the original Side Rules of this Court. He has contended that Rule10 of Chapter XVII Is mandatory and non-compliance with are of the clauses is fatal to the maintainability of the application for execution. According to him, clause (c) of Rule 10 not having been complied with the execution application is not maintainable. Rule 10 and clause (c) thereof of Chapter XVII are in the following terms :-