D.H.M. Framji and Others vs The Eastern Union Bank, Ltd.

Kapur, J.—A decree for Rs. 9816-4-0 and costs Rs. 1,130-0-9 was passed against D.H.M. Framjee, K.D. Framjee and one Sultan Ahmad in the Ct. of the Subordinate Judge, Chittagong, now in East Bengal. Some time later this decree was transferred for execution to the Dist. J., Patna, who ordered that the decree could be executed in Patna, Chittagong and Simla simultaneously. On 27-9-1943 the decree-holder made an application to the Sub-Judge executing the decree in Chittagong praying for the issue of a certificate of non-satisfaction to the Dist. Ct. Simla, and on 18-11-1943 this certificate was issued by the learned Judge of the Chittagong Ct. What happened to this certificate is not quite clear and whether it was sent to Simla or not has not been stated.

On 16-9-1947 the decree-holder made another appln. for sending a certificate of non-satisfaction of the decree to the Dist. Judge at Simla, and on 12-11-1946 this certificate was ordered to be sent to the Dist. J. at Simla. An appln. for execution of the decree along with the transfer certificate from the Chittagong Ct. was sent by post to the Dist. J., Ambala, by Mr. Amar Chand Advocate purporting to act on behalf of the decree-holder and this was received by the Dist. J. on 8-12-1946. The appln. is dated 20-11-1946 and is accompanied by two powers-of-attorney, one in Bengali and the other in English. Both, bear the seal of the Eastern Union Bank Ltd., and are signed by one Rabindra Nath Basu claiming to be the Agent of the Dacca Branch. This was sent for execution to tho Senior Sub-ordinate Judge, Simla, by post by the learned Dist. J. with the order that the decree-holder should appear before the Senior Subordinate Judge, Simla, on 20-12-1946.

On 19-4-1947 the judgment-debtor Dinshaw Framjee through his Pleader Mr. Kartar Chand filed an appln. under Order 47, Rule 1, and Section 151, CPC praying for time being given for making objections against the execution appln and for cancellation of the attachment which had boon ordered by the learned Judge. This appln. was dismissed on 2-5-1947 and an appeal was brought to this Ct. which was allowed by Bhandari J., on 11-7-1948 and the case was remanded for objections being filed.

On 31-7-1948 objections were filed on behalf of the judgment-debtors 1 to 3 (Framjees) in which it was pleaded that there was no proper presentation of the appln. to the Dist. J. and therefore the execution could not be proceeded with, that the power-of-attorney given to the Advocate Mr. Amar Chand had not been given by a person properly authorised, that it was not properly signed and verified, that the execution appln. did not give the particulars required under Order 21, Rule 11, CPC and that the execution application was barred by time. These objections were contradicted and contested by the decree-holder. The learned Judge framed the following issues:

Whether the execution application was not properly presented?

Whether the execution application was signed and verified by a properly authorised porson?

Is the execution appln. within time and the judgment-debtor cannot raise this objection in this Ct.?

Whether the judgment-debtor cannot raise the objection that the decree could not be transferred to this Ct. until the result of the execution application at Patna had been certified by the Chittagong Ct. and provisions of Section 39 were not complied with?

Whether the execution appln. does not comply with the provisions of Order 21, Rule 11?

Whether the power-of-attorney given by the decree-holder in favour of L. Amar Chand Advocate was not validly executed and what is its effect?

The learned Subordinate Judge held (1) that the execution appln. was properly presented; (2) that the omission of certain particulars did not make the appln. SO defective as to be regarded as being no appln. at all and that the person who gave the power-of-attorney to the Advocate was properly authorised and therefore he decided both issues 2 and 5 in favour of the decree-holder; and (3) that simultaneous execution applications could be proceeded with and that the present execution appln. was within time. He therefore overruled the objections of the judgment-debtors and ordered the attachment of the property of the judgment-debtors to be proceeded with. Against this order the judgment, debtors have come up in appeal to this Ct.

In the forefront of his arguments Mr. Anand Mohan Suri submitted that there was no proper authority to Mr. Amar Chand to execute the decree and there was no proper presentation, as required under the law, of the appln. for execution. On the first part of his submission he has relied upon a copy of the general power-of-attorney which is on the file as Ex. D.H. 4 (A) and is at p. 113. It purports to have been given by Babu Bhushan Mohan Bhattacharjee, son of late Bharat Chandra Bhattaoharjee, Managing Director of the Eastern Union Bank Ltd., Dacca, under Resolution No. (d) dated 24-12-1943 of the Board of Directors of the Bank, but at the bottom of it it does not show who has signed it. The general power-of-attorney was given to Babu Rabindra Nath Bose, son of Babu Khagen Nath dar Bose in the service of the said Bank as Deputy Agent at the Head Office of the Bank at Dacca. It recited:

Know all men by these presents that the Eastern Union Bank Ltd.,...do hereby nominate.... Babu Rabindra Nath Bose...to be the true and lawful Attorney of the said Bank at their place of business or at any other place or places in India where the said Bank may have or establish branches or Agencies and to which they or any of them may from time to time or at any time be appointed or transferred by the said Bank in any capacity whatever for in the name of and on behalf of the said Bank to do and transact the following acts, matters and things, that is to say :

(14) To commence, prosecute, enforce, defend, answer and oppose any suit, appeal, revision or review case and action or other legal proceedings or demands before Cts.... in India touching any matter in which the Bank may or hereafter be interested or concerned and to make, sign verify, execute, present and file appln. plaints, petns; written statements, vakalatnamas or any other papers expedient or necessary in the opinion of anyone of the said Attorneys to be signed, executed, presented or filed.

(15) And generally for the better and more effectually doing and performing the several acts, which in the course of general business of the Bank may anyone (?) of the said attorneys (?) deem to be requisite or expedient to be done or performed as being incidental to the object aforesaid and the Bank hereby ratify and agree to ratify and confirm all acts whatsoever the said Attorneys or Attorney shall do or cause to be done in the premises by virtue hereof.

The first objection taken was that this general power-of-attorney does not contain the signatures of the Managing Director who was under the resolution of the Directors of the Bank authorised to execute this general power-of-attorney in favour of Rabindro Nath Bose. The copy does not contain the signatures of the person, nor does it show that tire original, has the seal of the Bank on it. I asked the Advocate for the decree-holder where the original was and his explanation was that in spite of his having asked for the original he has not been able to get it. As a matter of fact, I find that an appln, was made by the judgment-debtors on 10-10-1949 asking for the original of this to be produced and notice was issued to the decree-holder''s Advocate on 14-3-1950, and on 29 March Soni J., gave six weeks'' time for this document to be produced. On 10-5-1950, another six weeks'' time was given by my brother Harnam Singh J. and on 5-7-1950 I gave a month''s time but on 22-8-1950 Khosla J. refused to give any more time and the case was set down for hearing.

When an objection that the person who originally authorised the Advocate to act on behalf of the decree-holder had no authority to do so is raised and the decision turns on the legality and propriety of a power-of-attorney given it is the duty of the parties to produce before the Court proof in favour of their submissions. This objection was taken in the Ct. below and one should have thought that the original power-of-attorney would have been kept on the file or at least a photographic copy or a certified copy of it, would be kept as required under Order 13, Code of Civil Procedure. No such precaution seems to have been taken in this case and the copy which has been produced. I am told, is a true copy and it is so marked under the signatures which are not legible, I must therefore take it that the original power-of-attorney was in favour of Rabindra Nath Bose, that it purported to give him the authority to act at a place where the Bank or its offices were situate and that the original is not signed by the Managing Director and does not bear the soal of this the Company. If these facts are correct, then this power-of-attorney cannot be of much assistance to the decree-holder. If it is not signed by the person authorised to sign on behalf of the Company then it is nothing more than waste paper. The power-of-attorney is in the name of Rabindra Nath Bose and the power-of-attorney given to Mr. Amar Chand Advocato is by Rabindra Nath Basu, Agent Dacca. It is quite posssible that Rabindra Nath Bose may have been appointed the Agent of the Bank. Indeed, a copy of the resolution which is at the top of p. 114 of the record shows that he has been so appointed and one may well take that to be correct, but whether Bose and Basu are the same names is not quite clear and the decree-holder has done nothing to prove that it is so. On this ground therefore the power-of-attorney in favour of, Mr. Amar Chand is by a person who himself did not have the power to authorise the Advocate so to act.

But even if Bose and Basu are the sama names, one being an anglicised form of the other, a power-of-attorney has to be very strictly construed. At p. 49 of Bowstead on Agency it is stilted:

Powers-of-attorney must be strictly pursued and are construed as giving only such authority as they confer expressly or by necessary implication.

And it is one of the rules of construction that the operative part of the deed is controlled by the recitals. In the recitals, as I have indicated above, the authority given to Rabindra Nath Bose was that he can do the acts enumerated in the various clauses of the power-of-attorney at Dacca or any other place where the said Bank may have any branches. No doubt, para 14 gives the power to commence proceedings before "other offices in India touching any matter in which the Bank may or hereafter be interested." This ground of attack does seem to have force and I must hold that Rabindra Nath Bose could only start proceedings where an office of the Bank was situate and in no other part of India.

The third objection was that the power of attorney is not signed and sealed as required under the law. This is a point which I have already discussed and I think this is not without substance. The copy of the power-of-attorney which has been produced before me does not show that the original power-of-attorney given to Rabindra Nath Bose was a proper one and therefore, as I have said before, it is nothing more than a sheet of waste paper and confers no power on Rabindra Nath Bose. On this ground therefore I must allow the objection of the judgment-debtors that there was no properly authorised power given to Amar Chand Advocate to proceed with the execution.

The next objection deals with the presentation of the petn. for execution. The execution appln. with the transfer certificate was sent by post to the Dist. J., Ambala. This, according to the Advocate for the judgment-debtors, is no presentation at all. Under CPC (under Order 21, Rule 10) the decree-holder has to apply to the Ct. which passed the decree,

or if the decree has been, sent under the provisions hereinbefore contained to another Court then to such Court or to the proper officer thereof.

In this case the appln. was sent to the Dist. J. by post by Mr. Amar Chand purporting to act on behalf of the decree-holder. Even if I were to take it that that is a proper mode under Rule 5 of Order 21 of the Code it cannot be said that the appln. for execution was properly filed if it is sent by post. In Ahsan Elahi v. Mehr Elahi 52 P.L.R. 100 : AIR 1950 E.P. 302 it was held that an appln. under Order 22, Rule 4, CPC must be presented by the applicant in person or by his duly authorised agent or by an Advocate of the High Court. It cannot be sent to the Registrar by post. Such sending by post is not legal presentation. It is true that if it had been merely the transfer certificate accompanied by relevant documents as required by Rule 6, the original Ct. might have sent it by post to the Dist. J., Ambala, and the mere sending of those papers by post by the Advocate may not make much difference. But Rule 10 requires an appln. to be made to the Ct. and it cannot be said that if an appln. is sent to the Dist. J. by post and he sends it to the Senior Subordinate Judge that is a proper presentation. The Advocate for the decree-holder relied on a letter purporting to have been issued by the Dist. J. authorising the sending of certain documents by post, but that does not override the provisions of the law. Another argument in reply raised by the Advocate for the decree-holder was that in this case the order of the Dist. J. was that the decree-holder should appear on 20-12-1946 before the Senior Subordinate Judge and his appearance on that day amounts to presentation within Rule 10 of Order 21, and for this purpose he relies on Section 42, CPC which says :

The Court executing a decree sent to it shall have the same powers in executing such decree as if it had been passed by itself....

It may have the same powers, but the question is what is the effect Of mere appearance on 20-12-1946 which is more than three years after the grant of certificate on 18-11-1943, even if that is taken to be a step-in-aid within Article 182(5), Limitation Act. That it is proper presentation is sought to be supported by a judgment of Addison J. in Chhajju v. Lehna AIR 1929 Lah. 478 : (113 I.C. 781), where an appln. for execution was filed by the decree-holder''s son without a power-of-attorney from the father and even after appearance of the judgment debtor the latter raised no objection to the propriety of the execution appln: and subsequently before the period of limitation was over a power-of-attorney was filed, and it was held that this appln. for execution was a proper one and the executing Ct. had full power to proceed with the execution. The facts of the case here are quite different. The execution appln. was sent by post which was not a proper presentation to the learned Dist. J. and if the appln. has to be taken to have been filed on 20-12-1946 then it was barred by time having been presented more than three years after the last date which can be taken into consideration for the purposes of limitation. I am, therefore, of opinion that in this case there has been no proper presentation, and on this ground also the judgment-debtors are entitled to succeed.

The next objection taken is that the appln. for execution does not contain all the particulars required under Order 21, Rule 11, Code of Civil Procedure. One of the particulars required under this rule is contained in Sub-rule (2)(f) which is :

Whether any, and (if any) what, previous applications have been made for the execution of the decree, the dates of such applications and their results.

This would show what previous applns. had been filed and how the appln. would be within time. In Col. 6 the decree-holder has said : "In the Ct. of Sub-Judge, Chittagong-Transfer, certificate of decree attached." It does not give all the particulars which are required. This lacuna is sought to be filled up by the production of three documents Ex. D.H.1, proceeding of the Patna Ct. dated 14-9-1943, Ex. D.H.2, an order of the Chittagong Ct. dated 18-11-1943, and Ex. D.H.3. another order of the same Ct. dated 12-11-1946. These do not give the particulars that are required. All they show is that on the dates given an appln. was pending in the Ct. of the Subordinate Judge in Patna and certificates of non-satisfaction were given by the Chittagong Ct. What happened up to 1946 in the Patna Ct. is not quite clear, and that the case was struck off on 12-11-1946 in the Ct. of the Subordinate Judge, Chittagong, is apparent from Ex. D.H.3. How these documents can be of any assistance to the decree-holder is not quite clear. I must therefore hold that the requirements of Order 21, Rule 11, CPC have not been complied with Under Rule 17 of Order 21 of the Code it is incumbent on the Ct. to ascertain whether the requirements of Rule 11 have been complied with, and it they have not been complied with it is open to the Ct. to reject the appln. or it may allow the defect to be remedied then and there or within a time to be fixed by it. No such thing seems to have been done by the learned Judge of the executing Ct. On the other hand, I find that it was not till 18-9-1948 that the documents Exs. D.H.1 to D.H.3 were filed which are now relied upon as having filled up the lacunao. The non compliance with Sub-rule (2)(f) of Rule 11 of Order 21 of the Code seems to me to be gross negligence and I must give effect to Rule 17 of Order 21 and reject the appln. I may state here that no prayer was made to me for amendment of the appln. On the other hand, it was argued that by subsequently putting in the documents Exs. D.H. 1 to D.H. 3 there was substantial compliance with the requirements of the law, a proposition with which I am unable to agree because oven these documents do not show as to what exactly had happened in this case. On this ground also the judgment-debtors are entitled to succeed.

A further objection taken was that the appln. for execution is barred by time. The decree, it was submitted, is of 14-12-1938 and the appln. for grant of certificate which was made to the Chittagong Ct. is dated 27-9-1943 and the certificate was granted on 18-11-1943. This may or may not have been a stop-in-aid but it was not accompanied by an appln. and therefore the step-in-aid for the purpose of limitation is valueless; see the discussion on this point at p. 1735 of Rustoraji''s Limitation Act, vol. II where it is stated:

Under Clause 5 there must be an appln. to the proper Ct.; the mere fact of a step-in-aid being taken or an order passed by the Ct. does not, unless there is an appln., bring the case within Clause (5).

In this case all that seems to have been done is that a prayer was made to the Chittagong Ct. for issue of a non-satisfaction certificate of the decree to the Dist. Ct., Simla, and the order of the Ct. dated 18-11-1943 was.

Certificate prepared today. Let the same be issued and sent to the Dist. J., Simla. Ordered that the Ex. Case be struck off.

This does not bring the case within Article 182(5), Limitation Act. The stops taken therefore which terminated in the order of 18-11-1943 cannot help the decree-holder.

It was then submitted by the decree-holder that in para. 7 of the objections the judgment-debtors had admitted on 31-7-1948 that the decree was being executed in the Ct. of the Dist. J., Patna, and therefore it cannot be said that the execution appln. was barred by time. The explanation given by Mr. Suri is that this was an objection to the jurisdiction of the Chittagong Ct. in sending a transfer certificate to the Dist. J., Simla, as it had not received the result of execution at Patna at the time and therefore had no jurisdiction. Whatever be the meaning which could be attached this paragraph which is certainly worded very unusual manner, there can be no doubt that the oaus to show th the appln. is within time was on the decree-holder and it was for him to show by having given proper pariicular that the appln. was within time. I am, there fore, of the opinion that when the appln. for exocution was filed on 20-12-1946 in the Ct. of the learned Senior Subordinate judge as it is now cotitondod by the decree-holder�s Advocate, it was barred by time and should not have been proceeded with.

I am of the opinion, therefore, that the objections of the judgment-debtors should have been allowed by the learned Judge and he was in error in overruling them.

In the result, this appeal succeeds and is allowed, but considering the circumstances of the case I would leave the parties to bear their own costs in this Ct. as well as in the Ct. of the Senior Subordinate Judge, Simla.