Bibi Wakilan vs Bibi Kasiman

Wort, J.—This is an appeal against an order of the Subordinate Judge of Patna, dated 9th July 1928, confirming the decision of the Munaif and dismissing the application of the appellant u/s 47, Civil P.C. A number of objections were taken before the Court below, but in this Court two objections were taken to the execution by the appellant, the first being that the decree in its present form is incapable of execution, the second that the application for execution having bean made one year after the date of the decree and no notice having been served under Order 21, Rule 22 of the Code, the Courts below had no jurisdiction to execute the decree.

The decree of the appellate Court which was dated 21st August 1924, in its operative portion, states:

It is ordered that the appeal is decreed with cases is both Courts.

and then there are other provisions relating to costs. It is obvious, on a perusal of the decree, that it does not comply with Order 41, Rule 35 of the Code. In setting out the details which are demanded by that rule, and particularly as regards the provisions of that rule, it is stated that there should be a clear specification of the relief granted or other adjudication made. It appears that the suit related to certain plots of land and on 20th December 1926, it appears that an application was made to the Court of the Subordinate Judge under which an amendment of the decree was made by the inclusion of the numbers of the plots of land which were the subject-matter of the suit; but still there was no provision in the decree as to what relief was granted, whether it was a question of declaration of title or possession or otherwise. In those circumstances Mr. Hasan Jan on behalf of the appellant argues that this was the decree which was in course of execution and the only procedure which the judgment-creditor could take would be a further application to the Court pronouncing the decree for a further amendment.

On the other hand it is suggested by the respondent that this was a case in which although the decree did not state the relief granted, yet the judgment and the plaint could be looked to for the purpose of ascertaining that fact. This question came before this Court in the case of Baijnath Sahay v. Gajadhar Prasad [1920] 58 I,C. 276, and Jwala Prasad, J., in pronouncing the judgment of the Court, stated that although it was clear that an executing Court had no right to go behind the decree and in any way to add or amend the terms thereof, its duty was to execute it as it was and that an amendment could only be made under the provisions of the Civil Procedure Code, yet an executing Court could give a fuller and more complete description of the property described in the decree on a proper construction of the decree read with the judgment and the pleadings.

Two considerations arise in this connexion. First of all the one which is indicated by the case I have quoted, namely that this is a case in which the Court could look to the judgment and the pleadings in order to interpret the decree. But the second consideration seems to ma to be of even greater weight. In this case it is stated by the respondent, and certainly not explicitly denied by the appellant, that, so far as these plots of land are concerned, that is to say, so far as the decree relates to these plots of land, execution has already taken place. It would be somewhat anomalous to say in a case of that kind, where execution had already taken place, that the decree was incapable of execution, and in this connexion I think it is correct to state that those authorities upon which Mr. Hasan Jan on behalf of the appellant relies are in respect to cases which have arisen in an application for execution and before execution has taken place. It is perhaps unnecessary to say so, but. if in fact the decree-holder in this case has been given possession of plots which are not the subject-matter of the suit and therefore to which she has no right, then the client of Mr. Hasan Jan certainlly has a remedy apart from Section 47, Civil P.C.

In my judgment the point which is argued on bahalf of the appellant, so far as the question of whether the decree is capable of execution is concerned, cannot be sustained for the reasons which I have stated.

The next point which was argued on behalf of the appellant is that by reason of the non compliance with Order 21 Rule 22, this execution was bad in law and that the Court proceeding with it was acting ultra vires. The provisions of Order 21, Rule 22, are well known, the proviso to the rule stating that.

no such notice shall be necessary in consequence of more than one year having elapsed between the date of the decree and the application for execution if the application is made within one year from the date of the last order against the party against whom execution is applied for.

Although this point does not seem to have been argued in the Courts below, yet from a perusal, of the order sheet it is clear that on 17th April 1926, in an application by the decree-holder, there was an order against the judgment-debtor for delivery of possession. It is true, as Mr. Hasan Jan states, that subsequently that application in execution was dismissed; the grounds for its dismissal are immaterial; the fact remains, and it is argued therefore that when the proviso to Rule 22, Order 21 uses the expression "the last order against the party" the proviso means a subsisting order and not an order, to use the language of Mr. Hasan Jan, which had been vacated. That argument, I must say, at first sight appeared somewhat attractive but, on a careful consideration of the proviso, I think it must be stated as quite clear that when the expression " the last order against the party " is read as given in the proviso, the order is not characterized in any way, and it dose not certainly state, that it must be an order which is sub-sisting against the party.

It seems clear from the proviso and from the order generally that what was intended was that the judgment-debtor should not be taken by surprise and that in the event of his having had notice by an order being made against him, whatever its character, within the period of one year, then the notice under the main part of Order 21, Rule 22, became unnecessary. In my opinion, therefore, both the objections taken by Mr. Hasan Jan are invalid and consequently the appeal should be dismissed with costs.

Rowland, J.

I agree.