TADINADA ABDUL KHARIM SAHEB Vs. PULAVARTI LAKSHMANASWAMI

JUDGEMENT

(1.) The question for disposal in this appeal is whether the execution petition dated 14 April 1923, was in accordance with law. When it was presented to the executing Court, the Court acting under Order 21, Rule 17(1) returned it for amendment, as various particulars required by Rule 11 had not been furnished. The petition was not returned amended within the time given, and when it was re-presented after the expiry of the time it was rejected as out of time. The lower Courts have held that, even though it was so rejected, nevertheless it was a petition in accordance with law, because the particulars which were omitted were not material such as would justify the executing Court in holding that the petition was not in accordance with law. The appellant contends that such a view is in direct contradiction of Sub-rule 2, Rule 17. He contends that the sub-rule must mean that, when the petition is returned, for want of particulars under R.11, and is not returned or is rejected as out of time, it was not originally in accordance with law, because it would be superfluous for the Code to say that after amendment within time it shall be deemed to have been an application in accordance with law, if even before it was returned it was in accordance with law, To my mind there is considerable force in this argument. Commentators on this Sub-rule 2, which was newly inserted by the Code of 1908, however, seem to agree that the one object of it was to give the amendment, a retrospective effect so as to make the petition in accordance with law, not from the date of the amendment but from its original date, having regard to the decision of the Calcutta High Court in Gopal Sah V/s. Janaki Koer [1896] 23 Cal. 217. But that view itself would support the appellant's contention, since it implies that until it is amended the petition is not in accordance with law, so as to -enable that compliance with the law to be given retrospective effect.

(2.) It may be noted that the sub-rule by the use of the word "and" between " law " and " presented," is dealing with two different points; first it is declaring that the amendment has the effect of making the original application one in accordance with law; and secondly it is declaring that the amendment shall have a retrospective effect as regards the date on which it has resulted in making the application one in accordance with law. All this seems to me to indicate that the legislature meant to convey that an application which is returned by the executing Court because of failure to comply with Rules 11 to 14 was, when it was first put in, not in accordance with law, and that it only becomes in accordance with law when it has been amended and returned in time. No doubt under the old Code, which contained Sub-rule 1, but not Sub-rule 2, it has been held that the applications were in accordance with law although they had been returned for amendment under Sub-rule 1. But the enactment of Sub-rule 2 appears to me to have been designed to alter that view and tighten up the procedure.

(3.) Authoritative rulings directly in point are few. One directly in point is Bhagwat Prasad v. Dwarka Prasad A.I.R. 1924 Pat. 23, in which the view put forward by the appellant, is somewhat cautiously supported in some obiter remarks. As I have said, I am personally in favour of that view, since it is difficult to hold that an application which is regularized, and brought into accordance with law by an amendment was nevertheless in accordance with law before that amendment; nor does there seem to be any point in saying that after the amendment it shall be deemed to have been in accordance with law if before the amendment it was already in accordance with law. There is, however, one Bench ruling of this Court in Kamaskhi Ammal V/s. Pichu Ayyar [1916] 4 M.L.W. 103. The head-note is misleading, but the Bench does say with reference to Sub-rule 2 that they do not consider it was intended to affect the construction put upon the words "applying in accordance with law" in the Limitation Act by this Court, and by other High Courts in dealing with defects in form occurring in execution applications and they say the rule is merely an enabling one. I have perused the printed papers in this Law Weekly case A.A.A.O. 39 of 1915, and find that the Subordinate Judge in his judgment put forward substantially the view argued here by the appellant. So that view was before the Bench when it pronounced its judgment. This view has been followed by a single Judge in Lahore Lekhram V/s. Gurdial A.I.R. 1925 Lah. 535. A case in Pitambar Jana v. Damodar Guchait A.I.R. 1926 Cal. 1077 is under the new Code, but the question now raised here was not discussed. On the whole, I think that, although my view is in favour of the appellant, it is better in these matters of procedure that the principle of stare decisis should prevail, and I would therefore follow the decision in Kamakshi Ammal V/s. Pichu Ayyar [1916] 4 M.L.W. 103.