CHHAYEMANNESSA BIBI Vs. BASIRAR RAHMAN

JUDGEMENT

(1.) We are invited in this appeal to reverse an order of the District Judge by which he has dismissed an application for execution of a decree as tarred by limitation.

(2.) The appellant obtained the decree on the 5 July 1905. On the 29 June 1908 she applied for execution. This application was presented by a mukhtiar, Gopi Nath, who signed on the back of the mukhtiarnama which was attached to the application. As a matter of fact, the body of the mukhtiarnama did not contain the name of this mukhtiar, and the case of the appellant throughout has been that the name was omitted by the mistake of the writer who drew up the power-of-attorney. The Officer of the Court who examined the application overlooked this defect, though he found out that the application was not in order, as the properties sought to be attached had been imperfectly described. On the 2 July, 1908, the application was returned to the "filing pleader" for amendment within seven days. The application was amended, and refiled on the 6 July following. It was thereupon registered, and notices were directed to be issued on the judgment-debtor under Section 248 of the Civil Procedure Code. On the 5 August the judgment-debtor filed his objections. One of these was that the application was barred by limitation; another was that the person who had verified the application was not the duly authorised agent of the decree-holder; but no objection appears to have been expressly taken that the mukhtiar had not been duly empowered to file the application. It is not clear how the mistake was first discovered; but on the 10 September the decree-holder filed an application, in which it was stated that by an oversight the name of the mukhtiar had been omitted from the power-of-attorney, and along with it a properly executed mukhtiarnama in favour of Gopi Nath was filed. The Court directed this mukhtiarnama to be placed on the record.

(3.) At the hearing, it was objected that there was no application in accordance with law till- the 10 September 1908, and that it was consequently barred by limitation; but the Subordinate Judge overruled this objection, it may be mentioned that the decree-holder anticipating the objection had, on the 19 September, got Dasarathi Ghosh, who had appeared in the original suit and appeal, to accept the power filed at first by Gopi Nath; and on the 2 January, 1909 Dasarathi also signed the application for execution. The Subordinate Judge thought that this was sufficient to validate the proceedings and allowed execution to proceed. On appeal, the District Judge held that the proceedings were illegal; the application for execution which had been originally signed by Gopi Nath was inoperative, because it was not till the 10 September that Gopi Nath had written authority to appear on behalf of the decree-holder, and the application treated as made on that day was obviously barred by limitation; on the other hand, the application could not be validated by the subsequent signature of the pleader who had appeared in the original suit. In other words, according to the District Judge the application was inoperative, because it had been signed and presented by a mukhtiar who had no written authority at the time, and had not been signed by the pleader who might, at that time, have filed it. In this view the District Judge allowed the appeal and dismissed the application for execution.