SHIV RATAN Vs. DURGA VALLABH

JUDGEMENT

(1.) IN this Execution Second Appeal, the only point for consideration is whether the application of the decree-holder dated the 22nd of January, 1953, was in accordance with law within the meaning of cl. 5 of Art. 182 of the Limitation Act. The decree in this case is dated the 28th of September, 1950. The first Execution Application was made on the 2nd of January, 1953. It was registered as Execution Case No. 48 of 1953. Notices were ordered to be issued on the judgment-debtor but they were not served and fresh notices were not filed by the decree holder and ultimately on the 13th of Feb. , 1954, the Execution application was dismissed. The second execution made on the 24th of January, 1956, and in this the judgment-debtor filed an objection that the first execution application was in accordance with law as it was not signed and verified by the decree holder. 'both the lower courts have dismissed this objection and the judgment debtor has come in second appeal.

(2.) THE first application dated the 22nd of January 1953 is signed by Ganpat Singh, counsel for the decree holder. It is not disputed before me that Shri Ganpat Singh was an advocate appearing in the original case on behalf of the decree holder and had authority to file the execution application. This execution application is not verified either by the decree-holder or by the said advocate. Shri Ganpat Singh had authority to sign on behalf of the decree holder U/0. 3, R. 1 C. P. C. , and, as such, I agree with both the lower courts that the application was properly signed. THE only point that remains is that as the application is not verified at all, such application cannot be treated as an application in accordance with law, as provided in cl. 5 Art. 182 of the Limitation Act. If this is so, the second execution application is barred by limitation. If not, then the second application is within limitation and the appeal must fail. Learned counsel for the appellant has relied on Potipireddi Sanyasanma Vs. Chalamuri Swami Naidu (1), in which it. has been held that an application which is not verified was not in accordance with law so as to save limitation. Learned counsel has further contended that O. 21, R. 11 makes it mandatory that the application for execution must be verified either by the applicant or by some other person who to the satisfaction of the court is acquainted with the facts of the case, and unless there is such verification, the application cannot be deemed to be in accordance with cl. 2 of O, 21, R. 11. Before I consider the provisions of this rule I may observe that the C. P. C. is divided into two parts. THE first is the main body of the Code and the second is the rules. It is the main body of the Code which lays down the principles which are to govern the procedure in civil matters. THE rules amplify such proce-, dure. Now all the essential matters relating to execution, such as the jurisdiction of the courts which are authorised to execute the decree, the questions to be determined by a court executing a decree and the procedure in execution are laid down in the body of the Code. In order that an application may be in accordance with law, it is necessary that it must be made to a court having jurisdiction to execute the decree and it must specify the mode in which the assistance of the court is sought. THE other matters laid down in the rules may have their importance but they Were not considered to be so essential as to form part of the body of the Code. THEse may sometime be altogether matters of form. If it is a matter which is altogether formal in its nature, it will be too much to say that the application for execution though complete in all other particulars but defective in a matter which is altogether formal,' will be treated as an application for execution not in accordance with law within the meaning of cl. 5 of Art. 182 of the Limitation Act. With this background, I proceed to examine the provisions of O. 22, R. 11 in the matter of verification of the execution applica-tion. Cl. 2 of R. 11 no doubt makes it necessary that the application must be verified but such verification may be made not only by a decree holder but also by any other person proved to be acquainted with the facts of the case. This means that in matter of verification, it was considered that a latitude may be granted and the application may not in appropriate circumstances be verified by the decree holder himself. THEn again under O. 21, R. 17, the court has the power to permit the removal of any defect in the matter of verification. Verification has been considered to be necessary in the case of plaint or written statement, but there is a host of authorities to the effect that a defective verification does not make the plaint void. Even if there is altogether no verification at all, the plaint docs not become invalid. Reference in this connection may be made to Wall Mohammad Khan Vs. Ishak Ali khan (2 ). Again when an un-verified plaint or execution application has been acted upon, the orders passed by the court in such cases do not become void. This being the position, I am inclined to take the view that the omission of verification of the execution application cannot be considered to make it not in accordance with law under cl. 5 of Art. 182 of the Limitation Act. Learned counsel for the appellant has placed certain authorities in which there has been omission in respect of verification and signing both and it has been held that these defects combined would make the application not in accordance with law. He has also relied on Superintendent, Court of Wards Vs. Rajpurohit Gopikrishanji (3), to show that an application, which is not properly signed by the decree holder himself, or his authorised agent, is of no validity and that any person un-acquainted with the facts of the case cannot sign it. This authority does not deal with the matter which is before me and is of no help to the appellant. THE Patna High Court in Bhagwat Prashad Singh Vs. Dwarka Prashad Singh (4) Baijnath Prasad Vs. Muneshwar Singh (5), took the view that the defective verification cannot make an application not in accordance with law under the Limitation Act. I am of opinion that even if there is total omission of verification, this would not make the application not in accordance with law. Of course, the application must be properly signed and presented before the competent court.