BEDNARAIN SINGH Vs. BHUNESHWARI KUER

JUDGEMENT

(1.) THE respondent sued the appellant for recovery of a certain sum of money. THE dispute was referred to arbitration and resulted in an award which directed that if the defendant paid a certain sum by a certain date to the plaintiff, the defendant's obligation to the plaintiff should be discharged and he should not be liable for the plaintiff's costs in the suit. But, if the defendant failed to pay the specified sum on the fixed date, the plaintiff would be entitled to recover from the defendant Rs. 304-13-9 as principal and Rs. 41-14-6 as costs. A decree was prepared incorporating this award on 28 July 1936. Unfortunately, in the suit register, the amount entered as the amount decreed was only the amount which was awarded to the plaintiff as costs, and this mistake was continued in an application which the decree-holder made for execution of the decree, that is to say, the amount entered in the application for execution as the amount for which execution was levied was the amount to which the decree-holder was entitled as costs, omitting all mention of the amount that he was entitled to as principal. On the date fixed for sale of the judgment-debtor's property in execution of the decree, the judgment-debtor deposited the amount mentioned in application for execution. THEn on 26 June 1940, that is to say, beyond three years from the date of the decree, the decree-holder applied to amend the petition for execution by including in it the sum which had been awarded as principal. THE application has been allowed and the objection subsequently filed by the judgment-debtor has been overruled.

(2.) IT was contended in the Court below, and has been contended in this Court, that as the application for amendment was filed more than three years from the date of the decree it is barred by limitation and should not have been allowed. A number of decisions has been cited in support of that contention. Rule 11 of Order 21, Civil P.C., requires that an application (or execution shall contain certain particulars in a tabular form under headings (a) to (j). The particular required under heading (g) is the amount with interest, if any, due upon the decree, or other relief granted thereby. The particular required under heading (h) is the amount of costs, if any, awarded. Under col. (g) in the present application, the amount stated was the amount to which the decree-holder was entitled as costs and not the amount to which he was entitled as principal. Column (h) was blank. Rule 17 of the same order enjoins upon the Court, the duty of ascertaining whether the requirements of Rules. 11 to 14 have been complied with, and, as amended by this Court, the rule further requires the Court to allow the defect, if any, to be remedied then and there or within a time to be fixed by it. Paragraph 2 of Rule 17 provides that when an application is amended in this manner, it should be deemed to have been an application in accordance with law and presented on the date when it was first presented. A consideration of the facts of this case discloses that the Court did not carry out the duties imposed upon it by para. 1 of Rule 17. Had it done so, it would have discovered the fact that the principal amount of the decree had not been entered in col. (g) of the application and that the amount of costs which should have been entered in col. (h) had in fact been entered in col. (g). The Court having failed to notice these errors omitted to give the decree-holder the opportunity to which he was entitled to rectify the mistake which had been made until the mistake was brought to the notice of the Court by the application for amendment on 26 June 1940. The mistake which has been made is such, as the Court should have noticed, if it had discharged its duties properly under para. 1 of Rule 17 and which it should at once have given the decree-holder an opportunity of remedying. The fault of the Court in this respect should not be permitted to penalize the decree-holder. In my view, the application of 26 June 1940, should be viewed as an intimation to the Court by the decree- holder that the Court had inadvertently omitted to notice the defect in the application and to give the decree-holder an opportunity of remedying it in proper time, and according to the provisions of para. 2 of Rule 17, the date on which the correction was made must be deemed to be the date on which the application was first presented. In this view of the matter the decision of the Court below was quite right and this appeal must be dismissed. In the circumstances, however, I do not pass any order for costs in this appeal. Leave to appeal under the Letters Patent is refused.