Bhupendra Narain Mander vs Janeswar Mander and Another

Adami, J.—This is an appeal from an order of the District Judge of Bhagalpur, setting aside the order of the Munsif of Madhipura, rejecting an application for execution of a decree. It appears that the decree of which execution was sought was passed on the 28th October 1911, and time, therefore, would expire on the 28th October 1923. On the 13th November 1923, the application was filed. It would be in time on that date because that date was the first date after the civil Court vacation. The application, however, was defective in very many ways; the heading was blank and so was column 8; column 6 was not correctly entered and no list of the properties sought to be sold was given; Sheet No. 2 was blank and there was no copy of the decree attached to the application; column 10 did not show a clear statement of the petition; the names of the decree-holders were not given. The Munsif passed an order on the 13th November 1923: "Petition returned for compliance of the omissions pointed out." No date was given for compliance. On the 19th November, the application was put in again, but it was found that all the defects noted had not been removed, and the Munsif passed an order on that date that the decree-holder must remove all the errors by the 4th of December. On the 7th December, the order sheet shows that the number and date of the previous execution proceedings had not been correctly given; it was noted that the decree appeared to be time-barred, that is to say, I suppose, that the application was time-barred. The Munsif ordered that the decree-holder should show cause by petition why the application should not be rejected, and, if he failed, the petition would stand time-barred. The application was returned for compliance by the 17th December. The next order on the order sheet is not dated, but it is to the effect that the order of the 7th December must be complied with by the 17th of January, and it seems that some objection was taken that notice of the order of the 7th January bad not been given to the pleader. No petition was put in on the 17th January 1921, but on the 18th January, the decree-bolder filed a petition showing cause why the application should not be found to be time-barred and excused his failure to file the application on the 17th on the ground that he could not get any stamp on that date. The next order on the order-sheet is dated the 28th January 1924 and is "register the petition." This entry was made by a clerk without orders from the Munsif, and the Munsif paid no attention to it. He found that the application was beyond time and time-barred.

An appeal was made to the District Judge and he held that, as the Munsif had given no date on the 13th November 1923, for compliance with his order, but on the 19th November gave time till the 4th December for compliance, it must be held that he had allowed time till the 4th of December and thus had saved the application from being time-barred. The learned District Judge admits that, even on the 4th December, the application was still defective, but he decided, on the basis of various rulings which he cited, that the defects on the 4th December were not material defects and, therefore, it must be held that time had been extended and the order had been complied with by the 4th December, He, therefore, admitted the application.

In my opinion, the application should be held to be time-barred. It is clear that at the last moment the decree-holder put in a piece of paper with certain facts written on it and certain prayers, but that application was not an application for execution such as is required by law. It was very flagrantly defective; it was treated as being of no avail and it was returned to the decree-holder to be completed in proper form. At that time the question whether the application was time-barred could not be considered, because the facts stated in the application did not afford the necessary information: it was in fact treated as no application at all. On the 19th November time was given until the 4th December and it was then first noticed that the application appeared to be time-barred and the decree-holder was called upon to point out any reasons why it should not be condemned as time-barred.

In the case of Salimulla Bahadur v. Sainaddi Sarkar AIR 1914 Cal 359, a decree-holder applied for execution of his decree and, before the period of limitation had arrived, he applied to the Court under Order 21, Rule 17 to be allowed to file a list of immovable properties. The Court simply made the order "permitted" and did not fix any time within which the list was to be filed. The list was subsequently filed after the period of limitation had already run. It was there held that the proceedings in execution were barred by limitation inasmuch as the provisions of Order 21, Rule 17 Sub-rule (2), were not complied with and the necessary formalities wore not carried out within the time prescribed by law. In that case as in this case it was not brought to the notice of the Court at the time the application was made that there was any question of limitation. The failure to file a list of properties was a material defect and by the time that the order was passed on the 19th November the application was already time barred.

The learned District Judge has cited various cases where various defects were held to be individually not material. But in the present case, the application was defective in nearly every way and many of the defects were material. The decree-holder in the later stages seems to have continued to delay and his excuse that he could not file the petition on the 17th January, because he could not get the stamp, was not a good one. I can see no good reason for considering that it can he held that an application for execution was made within time and in my opinion the application should be held to be time-barred.

The appeal should be allowed with costs, the order of the learned District Judge set aside and that of the Munsif restored.

Kulwant Sahay, J.

I agree.