SHEONATH PRASAD Vs. BENARES BANK, LTD

JUDGEMENT

(1.) This appeal arises out of an execution proceeding. The only question involved is whether the application for execution is barred by limitation and its decision depends upon the decision whether a previous application for execution filed on 29 April 1933 and registered as No. 71 of 1933, was in accordance with law. After that application had already been registered, there was a note by the serishtadar pointing out that the time and place of its verification were not mentioned and that the power under which the Agent of the Bank signed it on its behalf was not produced. Time was given to the decree-holder to remedy the defects painted out in the note. This was not done, and the application was dismissed. This was followed by the present application for execution. The judgment-debtor contended that the previous application just referred to was not in accordance with law and, therefore, the present application was barred by limitation. This objection has been overruled by the learned Subordinate Judge and hence the present appeal by the judgment-debtor.

(2.) In my opinion, the learned Subordinate Judge has rightly decided the point. The defect of the omission of the time and the place of verification, if it can be called a defect, was a trivial one; and for this omission the application cannot be said to be not in accordance with law. The learned Advocate for the appellant has relied upon a decision of this Court in Bhupendra Narain Mander V/s. Janesh Mander 1926 Pat 533, but there is much difference between the defects in the application of execution there and the defect, if any, in the application before us. There various important and necessary information was wanting. The column in which the mode of execution is to be mentioned was very seriously defective. In my opinion therefore the omission of time and place of verification was not such a defect as to invalidate the application for execution. Coming now to the non- production of the power of the Agent to sign the verification, it is only to be said that there is no rule under which it is necessary that such power should be produced along with the application for execution. If the application was signed by a properly authorized person, it was in order. Non-production of the power if its production was ordered by the Court may entail the dismissal of the application, but it will not render an application itself, otherwise valid, invalid. It is not disputed that the Agent who signed the petition was in fact authorized to do so. As a matter of fact the present application has also been signed by him.

(3.) The learned Advocate for the appellant has, however, raised another point which was neither specifically raised before the learned Subordinate Judge nor was it decided by him and it is that the decree has become incapable of execution against the present appellant (judgment-debtor 3). It seems that upon a sale of the properties of the judgment-debtors 1 and 2 and of the appellant judgment- debtor 3 sufficient money was realised for the satisfaction of the entire decree, but a portion of it was subsequently utilized towards the payment of a decree of the Bank of Bihar against the judgment-debtors 1 and 2, which claimed rateable distribution. The learned Advocate therefore contended that so far as the appellant is concerned the decree must be taken to have been satisfied as the order of rateable distribution was not against him. I think this question cannot be entertained at this stage, firstly, on the ground that it was not raised in the Court below and secondly, the appellant cannot be allowed to agitate the justification or otherwise of the order of rateable distribution at this stage. In my opinion there is no merit in this appeal. I would therefore dismiss it with costs. Saunders, J.