Brajasunder Das vs Radha Prasad Bhagat

Fazl Ali, J.—This appeal arises out of an execution proceeding which the appellant sought to resist in the Court of the Subordinate Judge of Cuttack, on two principal grounds: (1) that the decree was barred by limitation and (2) that the application for execution was not in accordance with law. It appears that the decree was passed on 25th November 1927.

The first execution petition was filed on 10th May 1929, and the present execution proceedings were started on 3rd April 1930. It was contended by the appellant that the execution petition of 10th May 1929 was neither in accordance with law nor could it be regarded as a step-in-aid of execution inasmuch as out of the two executors to the estate of the judgment-debtor only one, namely, Brajasundar Das, had been made a party to that application and the other executor, namely, Lalmohan Patnaik had not been made a party. In reply to this contention it was pointed out on behalf of the decree-holder that shortly before the execution proceedings of the year. 1929 were started, the appellant had executed a sale deed on 11th February 1929 in which he had stated in clear terms that Lalmohan Patnaik had filed a petition of resignation in the High Court and the High Court had removed his name from the category of executors on 12th January 1929. Reliance was placed on behalf of the decree-holder also on Ex. A, a petition filed by the appellant on 16th February 1929, which runs as follows:

After the institution of the said execution case the petitioner''s co-executor Babu Lalmohan Patnaik tendered his resignation to his post of executor and the High Court has accepted the same. The petitioner is qualified under law to conduct the said execution case alone. As the said Lalmohan Patnaik tendered resignation, it is necessary that the petitioner should take permission to conduct the said execution case singly. Therefore the petitioner begs to file this petition for permission and prays that permission for conducting the said execution case singly be granted to him.

Evidently this prayer was allowed and the property which was sought to be proceeded against by the decree-holder in the execution proceedings of the year 1929 was purchased in the name of the appellant only. Before the learned Subordinate Judge two witnesses were examined on behalf of the appellant, one of whom admitted that Lalmohan Patnaik had applied before the High Court renouncing his executorship and that for the last four or six years Brajasundar Babu had been defraying the expenses of the estate and that the accounts were with him. It was however also stated that Lalmohan Babu had not yet been discharged from the executorship. It is noticeable that the order sheet of the High. Court has not been filed on behalf of the appellant and the question has to be decided as to whether the oral evidence adduced on behalf of the appellant is sufficient to displace the admission made by him in Exs. A and B where in it was stated in clear terms that the High Court had removed the name of Lalmohan Patnaik from the executorship. The appellant himself did not come to the witness box to explain his admission and it would seem difficult in these circumstances to hold that his admission can be entirely ignored in these proceedings.

Assuming however that the statement made by his witness 1 is correct, it would appear to me that the application of the decree-holder of 10th May 1929 was in any case a step-in-aid of execution within the terms of Article 182, Lim. Act. It has been held in Ghaneshwar Singh Vs. Than Mall and Another, that an application for execution of a decree made against a wrong person under the bona fide belief that that person was the real legal representative of the judgment-debtor is an application in accordance with law within the meaning of Article 182, Schedule 1, Lim. Act, and that in any event it was clearly an application to take a step-in-aid of execution of the decree and would give a fresh start to the period of limitation.

The same view appears to have been taken in Bipin Behari Mitter v. Bibi Zohra [1908] 35 Cal. 1047 and in Puran Mall and Others Vs. Mt. Dilwa, . In this particular case there cannot be any question about the bona fides of the decree-holder in view of the statements made by the appellant himself in Exs. A and B and the fact that the property which was proceeded against by him in the year 1929 had been purchased by the appellant himself on the representation that Lalmohan Babu was no longer an executor. It is also urged by the decree-holder that the application of 10th May 1929 was in accordance with law and in accordance with the requirements of Order 21, Rule 11, inasmuch as all the details required by that provision are to be found in that application. In my opinion the application of 10th May 1929 was in any event a step-in-aid of execution. If that view is permissible it is clear that the present application was within time and the decree was not barred by limitation on 3rd April 1930 when this application was presented. The next objection of the decree-holder is that no amendment should have been allowed by the learned Subordinate Judge after the execution petition had been registered.

It appears that the learned Subordinate Judge allowed the decree-holder to amend the petition by introducing the name of Lalmohan Patnaik on the ground that there was in any case a mere technical defect in the application. The learned Advocate for the appellant relies in this connexion on Asgar Ali v. Troilokya Nath Ghose [1890] 17 Cal. 631 (F.B.). That case was distinguished by a Division Bench of this Court in Ram Sumran Prasad v. Ram Bahadur AIR 1923 Pat. 224. In the latter case it was held that a Court is competent at any time before execution proceedings terminate and before the decree becomes barred by limitation, to allow a decree-holder whose application for execution of his decree is pending, to amend the application by the addition of other properties to the list of properties sought to be attached.

In the judgment which was delivered by Mullick, J., a reference was made to the argument advanced in that case that Rule 17, Order 21, contemplates that there can be no amendment after the execution case had been registered. The learned Judge however pointed out that there could be no force in that contention and it has been so held in Gnanendra Kumar Roy v. Shyama Sundar 44 Ind.Cas. 553. Towards the end of his judgment he further pointed out that on the day the amendment was allowed to be made the Court had jurisdiction to accept the amended petition as a fresh application for execution or could entertain the application for amendment of the previous application. In my opinion, even if it was to be held that no amendment is permissible after the application has been registered, there was nothing to prevent the Court from treating the amended application as a fresh application for execution as, on the date the amendment was allowed to be made, the decree was not barred by limitation. As both the points urged in this appeal fail, I would dismiss it with costs.

Macpherson, J.

I agree.