Bhagwat Prashad Singh vs Dwarka Prashad Singh and Others

Dawson Miller, C.J.—The question for determination in this appeal is whether an application for execution of a decree filed on the 9th April 1922 is barred by limitation. The judgment debtor who is the appellant before us contended before the Additional Subordinate Judge that the decree was time barred on the ground that more than 3 years had passed since the last application for execution. The question depended upon whether a previous application for execution presented on the 24th April 1919 was duly made in accordance with law within the meaning of Article 182(v) of the 1st Schedule of the Indian Limitation Act. It is admitted that if the application of the 24th April 1919 was duly made in accordance with law the present application is not time barred.

The learned Subordinate Judge found that the previous application was duly made in accordance with law and dismissed judgment debtor''s objection. His decision was affirmed on appeal to the District Judge. From that decision the judgment-debtor has preferred the present appeal to this Court.

The validity of the application of the 24th April 1919 is challenged on three grounds (1) that a copy of the record of-rights was not filed together with the application, (2) that no court-fee was paid for the additional amount of interest claimed between the date of the plaint and the date of the application, and (3) that the application was not verified by all the decree-holders. When the previous petition for execution was presented it was endorsed by the Sheristadar of the Court with a note that no court-fee on the increased amuont of interest was filed and that copy of the record-of-rights was not filed but that a written translation of the verification which was in the mahajini character had been supplied. On the same day, the 24th April, 1919, the Subordinate Judge passed the following order:

Return the execution petition for needful and to be re-filed in 10 days from this date.

That order apparently meant that the decree-holders were to pay the additional Court fee and supply a copy of the record-of-rights within 10 days. The order was not complied with but the present petition was presented within 3 years. In my opinion it was not necessary that the previous application should be returned for the purposes mentioned. Order 21 Rules 11 to 14 of the CPC give the particulars which the law requires to be stated in an application for execution. If the application conforms with those* Rules and is presented upon a properly stamped paper, I think, it must be taken to have been properly presented in accordance with law. Rule 17 of the same Order prescribes the course which the Court shall take when the application does not conform with the requirements of Rules 11 to 14 and provides that the Court shall ascertain whether such of the requirements of those Rules as are applicable to the case have been complied with. If they have not been complied with the Court is empowered either to reject the application or to allow the defect to be remedied within a time to be fixed by it. It further provides that where an application is amended under the provisions mentioned it shall be deemed to have been an application in accordance with law and presented on the date when it was first presented. It may perhaps be inferred from this that where the application is returned on the ground that the requirements of the Rules have not been complied with and is not amended within the time fixed, it cannot be regarded as having been presented in accordance with law. It is nowhere stated, however, that where the application conforms with the prescribed requirements and is returned for some other reason it shall not be deemed to have been presented in accordance with law. On referring to Rules 11 to 14 no provision is found for the payment of any Court-fee on the amount claimed in excess of that covered by the Court-fee paid together with the plaint or for supplying a copy of the record-of-rights, and assuming these were matters which the Court might require to be done, the failure to do them cannot, in my opinion, affect the validity of the application as such. It was contended, however, that the failure to supply the additional Court-fee was a fatal defect in the application. The application was presented with an 8 annas stamp which is admittedly in accordance with the requirements of schedule II of the Court Fee Act then in force for applications of this nature. The authorities are not uniform on the question whether additional Court fee is payable on interest which has accrued on the decretal amount since the date of the suit and for which no Court fee has been paid with the plaint. But assuming, without deciding, that it was within the competency of the Court to require payment of the additional Court fee before it would order execution to proceed in respect of the additional amount claimed, such a fee was in no sense a Court fee payable on an application for execution. It was, if payable at all, a Court fee payable on the plaint in respect of a part of the subject matter in dispute which could not be estimated at the time when the plaint was presented, and which it is not usual to exact at that time. The failure to pay this fee would, at the most, entitle the Court to hold its hand and refuse to allow execution to proceed or to dismiss the application if the fee should not be paid within the time ordered, but its nonpayment cannot invalidate an application for execution properly stamped in accordance with the requirements of the Court Fees Act and containing the particulars required by the provisions of Order 21 Rules 11 to 14. But it was further contended that once the application was returned for amendment it could not be regarded as an application in accordance with law within the meaning of Art.182 of the Limitation Act unless the amendment was made within the time ordered and the application again presented: In support of this argument the case of Gopal Sah v. Janki Koer [1896] 23 Cal. 217 was relied on, but in that case the original application did not contain all the particulars required by Section 235 of the Code of 1882 (now Order 21 Rule 11), and it was returned for amendment within a specified time. The order requiring amendment was not complied with and it cannot be said that the application was ever properly presented in accordance with law. In the present case the application was not returned on account of any defect in supplying proper particulars. In the case relied on it is true a broad proposition was laid down that once the application is returned for amendment of any kind, even though the defects bad not vitiated the application, it could not be regarded subsequently as made in accordance with law unless the defects had been cured within the time allowed. It was not necessary on the facts of the case to lay down any such broad proposition, and the judgment in that respect was criticised and not followed in the later case of Mathura Prasad v. Mt. Anurago Koer 14 C.W.N. 481 decided by the same High Court in 1910. In my opinion the broad proposition there stated cannot be supported upon a proper interpretation of the Rules of Order 21 or upon general principles and should not be followed.

The only other question which was raised was that the application was not verified by all the decree-holders. The application was signed by all the decree-holders and was verified by all except one. Order 21 Rule 11 (2) provides that save as otherwise provided by Sub-rule (1) every application for the execution of a decree shall be in writing signed and verified by the applicant or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case. The certification in the present case was clearly signed by persons acquainted with the fact of the case and as they were themselves the decree-holders it may be presumed that the Court was satisfied that they were acquainted with the facts of the case. It does not appear to me that the application need be verified by all the applicants. It may well be that where there are a number of decree holders some of them are not acquainted with the facts of the case, and all the law requires is that the application should be verified by some person proved to the satisfaction of the Court to be acquainted with the facts of the case. I think it would be straining the language of the Rule too far to say that where there are more applicants than one the verification should be signed even by those who are not acquainted with the facts of the case or that where one or more are acquainted with the facts of the case their verification is not sufficient. In my opinion this appeal fails and should be dismissed with costs.