DOLAGOBINDA SAHU Vs. CHAKRADHAR MOHAPATRA

JUDGEMENT

(1.) This application in revision has been filed by the decree-holder against an order of the learned Sub-ordinate Judge of Cuttack, dated 8-10-1953, wising the decreeholder's prayer to amend the prosecution petition by including certain properties in the list of properties originally appended to the execution petition. The decree in question was passed in Money Suit No. 41 of 1939 on 11-11-40, and the application for amendment was presented on the last day of the period of 12 years prescribed by Section 48, C. P. C. The main ground on which the application was resisted by the judgment-debtors was that it was not maintainable in view of the provisions of Order 21, Rule 17, C. P. C. Their contention was that Order 21, Rule 17, C. P. C. provides for an amendment of the execution petition when the requirements of Rules 11 to 14 of Order 21 are not complied with. In other words they contended that Order 21, Rule 17, C. P. C. deals with formal amendments, and does not empower the Court to amend the execution petition on any substantial point, as for example by substituting new properties sought to be attached and sold in execution. Order 21, Rule 11 prescribes the details which are to be furnished by the decree- holder in an application for execution of a decree. Clause (j) of Sub-rule (2) of Rule 11 of Order 21 requires the decree-holder to state

(2.) The learned Subordinate Judge has given effect to this objection, as in his opinion the application filed by the decree-holder was not for a formal amendment which could be allowed under Order 21, Rule 17, C. P. C. and it was, according to him, not a fit case in which it was necessary for the Court to exercise the general powers to allow amendments to remedy defects, the application having been filed on the last day of the period of 12 years from the date of the decree, and it not having been presented in the form of a fresh application for execution of the decree.

(3.) The learned counsel for the appellant contends that the view taken by the learned Subordinate Judge is incorrect, and that in appropriate cases the Court has general powers to amend the execution petition by substituting new properties in the list of properties appended to the original application. He has relied upon a number of decisions of various High Courts in support of his contention. The first case referred to by him is the case of --'Ram Sumran Prasad v. Ram Bahadur', AIR 1923 Pat 224 (A). In that case, an application for execution was filed on the 20th May of 1915, and in course of that execution certain properties were sold, but the sale-price did not satisfy the entire decree. Therefore on 11-71922, the decree-holder filed a petition before the executing court stating that certain amount was in deposit in another Court to the credit of the judgment- debtors, and he prayed that that sum ought to be attached and paid to the decree-holder in satisfaction of his debt. The Subordinate Judge rejected the petition on the ground that as one execution case in respect of the same decree was still pending, no fresh execution, petition in respect of the same decree could be entertained. Against this order the decree-holder moved the High Court in revision. Their Lordships Mullick and Kulwant Sahay JJ., who heard the revision, held that the view of the Subordinate Judge was wholly incorrect, and that the legality of concurrent execution had always been recognised in the Civil Procedure Codes of 1859, 1877 and 1882, though in practice it was not generally carried out. After referring to the various authorities on the point, their Lordships observed as follows: