USHAPATI MANDAL Vs. PIONEER COMMERCIAL BANK IN LIQUIDATION

JUDGEMENT

(1.) A short question of law which does not appear to be covered directly by any decision of our High Court is involved in this appeal. That question is whether an application for execution of a decree which has been drawn up in confor-mi,y with Rule 11 of Order 21 of the Code of Civil Procedure and which is otherwise in form can be treated as a good application for the purpose of saving limitation if it has been filed by a lawyer who has got no authority to file it.

(2.) The above question of law has arisen for my determination under the following circumstances about which there is no dispute. The Pioneer Commercial Bank (in Liquidation) obtained a decree against appellant Ushapati Mondal on September 2, 1949. It appears that an application for execution of the decree was drawn up in accordance with law and signed by the Official Liquidator Sri P. C. Sen. The application was presented in Court by the Liquidator's Pleader Sri Asoke Charidra Bose on September 2, 1952. The contents of the application were noted in the Register of the executing court and the application was also given a number, namely, No. 44 of 1952 of the executing court. It was, however, found that the lawyer who had presented the application in court had no vakalatnama and on that ground the execution case was struck off on that very date, namely, on September 2, 1952. The present application for execution was filed in the executing court on July 11, 1955. An objection was taken on behalf of the judgment-debtor that this second application for execution was barred by limitation inasmuch as the previous application had not been duly or legally presented before the executing court and so it could not have saved limitation. This objection of the judgment-deb lor was negatived by the executing court. An appeal was preferred by him which was unsuccessful. So the judgment-debtor has preferred this Second Appeal.

(3.) The facts involved in this appeal are practically admitted. Mr. Guru Prasad Ghosh appearing on behalf of the judgment-debtor appellant contended before me that in holding that the previous application for execution of the decree which was struck off on 2-9-1952 was legally made and presented in court and was, therefore, sufficient to save limitation, the courts below committed an error in law. Mr. Ghosh contended that if a lawyer who has not been authorised by his client to present a document in court as required by the provisions of Order 3 of the Code of Civil Procedure, actually presents such a document in court, then that would be neither a valid nor a legal presentation and no court should take any action on such presentation. Mr. Ghosh submitted that the effect of such an unauthorised presentation would for all purposes be that no document has been presented in court at all. If this argument of Mr. Ghosh were to be accepted then I would have certainly come to the conclusion that the subsequent execution case in connection with which this objection has been taken by the judgment-debtor has become barred by limitation. After a careful consideration of the matter I am not inclined to accept the contention of Mr. Guru Prasad Ghosh.