DOLGOBINDA SAHU Vs. CH. CHAKRADHAR MOHAPATRA AND ORS.

JUDGEMENT

(1.) THIS application in revision has been filed by the decree -holder against an order of the learned Subordinate Judge of Cuttack, dated 8th October, 1953, refusing the decree -holder's prayer to amend the execution 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 -1940 and the application for amendment was presented on the last day of the period of 12 years prescribed by Section 48 of the Code of Civil Procedure. 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, Code of Civil Procedure. Their contention was that Order 21, Rule 17, Code of Civil Procedure 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, Code of Civil Procedure 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 prescribed 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 "the mode in which the assistance...is required, whether

(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, Code of Civil Procedure, 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 Subordinate Judge has to a great extent placed reliance on a later decision of Patna High Court reported in Gajanand Sha and Ors. v. Dayanand Thakur : A.I.R. 1943 Pat. 127, wherein it was held that a decree -holder cannot be allowed, after the period of limitation, to execute his decree against a property not mentioned in the execution application when originally presented by allowing him to substitute it in the execution -petition. It is to be noticed that the judgment in this case was also delivered by Fazl Ali, J. The facts in this case were entirely different, for, the application for the amendment by substitution of a new property was made after the period of limitation was over. In such circumstances no amendment can be allowed, for it would amount to evade the law of limitation but in cases where the period of limitation has not expired, there is no reason, as Fazl Ali, J. himself had pointed out in the earlier case, why the decree -holder should not be permitted to amend the execution -petition by substitution of a new property. If it is open to the decree -holder to file a fresh petition, it lands to reason that the prayer for amendment should be allowed so as to relieve the parties of the necessity for fighting out simultaneous executions. The view that such an amendment can be allowed has been again reiterated in a comparatively recent decision of the Patna High Court in Deo Narain Singh and Ors. v. Bibi Khatoon and Ors. : A.I.R. 1949 Pat. 401 where it has been pointed out that as long as the decree is still alive and the execution is not closed, the Court is competent to allow the decree -holder to amend the execution -petition by addition of other properties. Learned Counsel for the Appellant has also relied on a decision of the Calcutta High Court in the case of Nourangilal Marwari v. Srimati Charubala Dasi and Ors. : A.I.R. 1932 Cal 766. In that case in the original application for execution, the decree -holder had made a statement that he had been entitled to the properties by succession. Later on, he filed a petition for amendment by which he wanted to correct the earlier statement by saying that he had become entitled to them by survivorship. The objection was that as this amendment was not covered by the express terms of Order 21 Rule 17, Code of Civil Procedure, it could not be allowed. Rankin, C.J., who delivered the judgment examined the provisions of Order 21, Rule 17 and observed as follows