SHEKENDARALI MEAH Vs. ABDUL GAFUR CHOUDHURY

JUDGEMENT

(1.) One of the judgment-debtors is the appellant in this case and the appeal is directed against an order of Mr. Protap Chandra Sen Gupta, Subordinate Judge, Second Court, Backergunge, dated 31 March 1939, in which the learned Judge dismissed an objection raised by the judgment-debtors in the execution proceedings to the effect that the decree could no longer be executed having regard to the provisions of Section 48, Civil P.C.

(2.) It appears that the decree-holders had obtained a decree for rent against the judgment- debtors as far back as 8 February 1924. This decree together with costs amounted to Rs. 6127-15-0. Thereafter, the usual steps were taken by the decree-holders to put this decree into execution and the record shows that the judgment-debtors placed every possible obstacle in the way of the decree-holders at various stages of the execution proceedings. The last execution case was instituted on 6 February 1936 by execution case No. 3 of 1936. By that time, the decree-holders had succeeded only in realising the sum of Rs. 250 from the judgment-debtors and the amount due to them, including interest on the decree amounted to Rs. 9865-10-0. In col. 10 of the application for execution the decree-holders asked that certain properties mentioned in the schedule might be put up for sale. They also asked for attachment of the moveable properties of the judgment-debtors and as a last resort for execution by arrest of the judgment-debtors. In the last column of the application was included a list of properties against which the decree-holders wished to proceed. Admittedly, this application for execution was in accordance with law. During the course of the execution proceedings, some of the judgment-debtors put forward a claim in their capacity as mutwallis of the properties which it was sought to attach to the effect that these properties were exempt from attachment. This objection was allowed on 30 January 1937, and it appears that thereafter the decree-holders filed a suit under the provisions of Order 21, Rule 63, Civil P.C. The sale of the attached moveable properties of the judgment-debtors only resulted in the realisation of a small sum towards the decretal dues, so the decree-holders filed a further list of properties in the possession of the judgment-debtors and asked for the permission of the Court to proceed against these properties which were mentioned in a petition filed by the decree-holders on 10 November 1938. The judgment-debtors filed an objection under Sec. 47 of the Code with reference to this petition. The matter came on for hearing before the learned Subordinate Judge on 31 March 1939 and under his order the objection of the judgment-debtors was dismissed. As already stated, it is against the latter order that this appeal is directed.

(3.) The main point urged by the learned advocate for the appellant in this case is that the application made by the decree-holders on 10 November 1938 was in effect a fresh application for execution and was, therefore, time-barred having regard to the fact that the rent decree which it was sought to execute was passed as far back as 8 February 1924. He also contends that, inasmuch as more than 12 years had elapsed from the date of the decree, it was not competent for the learned Subordinate Judge to treat the application as one for the amendment of the pending application for execution. As already stated, the application for execution of the decree which was filed on 6 February 1936 was admittedly an application in accordance with law. Therefore, we are not concerned with the question whether an application for execution which has been registered may be amended after the expiry of the prescribed period of limitation for the purpose of removing formal defects within the meaning of Order 21, Rules 11 to 14, Civil P.C. That being the case, the principles laid down by a Full Bench of this Court in Asgar Ali V/s. Troilokya Nath ( 90) 17 Cal. 631 (F.B.) have no application. In this connection it was observed by Mitter J. in Piramal Goenka V/s. Basanti Das Chatterji that certain views expressed in Asgar Ali V/s. Troilokya Nath ( 90) 17 Cal. 631 (F.B.) have not met with approval in later cases of this Court. But be that as it may, it is clear that apart from the provisions of Order 21, Rule 17, amendment to applications for execution may be made in suitable cases after the registration of such an application as was pointed out by Sir George Rankin, C.J. in Naurangilal V/s. Charubala Dasee . In that case His Lordship observed: Now, because the rule requires a preliminary scrutiny of certain formalities before the petition can get upon the file, it is actually argued that that means that after it has got upon the file nobody can ever get his petition amended even with the leave of the Court--a thing which is almost ludicrous as an argument....Under the Code, procedure is intended to be less, rather than more formal in the execution of a decree than in the case of the hearing of a suit ; and the executing Court need not have found difficulty in allowing him (i.e., the appellant) to amend his petition.