Mt. Khodaijtul Kubra vs Ugrah Singh and Others

Fazl Ali, C.J.—These four appeals arise out of four execution proceedings and may be dealt with by one judgment as the point involved in them is the same. It appears that in one of the cases before us a rent decree was obtained by the appellant on 31st January 1936 and in the other three cases on 21st July 1936. In each case the appellant decree-holder made an application to the proper Court for execution on 30th January 1939. The applications were registered and the decree-holder was ordered to file the requisites by 7th February in one of the cases and by 10th February in the other eases. The above order not being complied with, the execution cases were dismissed on 8th and 10th February 1939 respectively. The present application for execution has been made in all these cases on 28th July 1941 and the only question which is involved in these appeals is whether the execution is barred by limitation. This point arises upon the concurrent decision of the two Courts below that the execution is barred.

The answer to the question which has been raised in these appeals depends upon whether the applications for execution made on 30th January 1939 were applications made in accordance with law. The prayer which was made in these applications was as follows:

It is prayed that in the above suit upon the application being registered and after taking the proper steps and issuing the necessary processes the decretal amount be realised by the attachment and sale of the property which is the subject of talika.

Talika means an inventory and one would have expected that an inventory of the properties which the decree-holder wanted to be attached and sold would be supplied in the application. But as a matter of fact no such list or inventory was supplied. The point which was raised in the Courts below was that the application was not in accordance with law because it did not comply with the provisions of Order 21, Rule 13. This rule reads as follows:

Where an application is made for the attachment of any Immovable property belonging to a judgment-debtor, it shall contain at the foot

(a) a description of such property sufficient to identify the same and, in case such property can be identified by boundaries or numbers in a record of settlement or survey a specification of such boundaries or numbers; and

(b) a specification of the judgment-debtors'' share or interest in such property to the best of the belief of the applicant, and so far as he has been able to ascertain the same.

It is conceded that the application for execution did not contain any description or specification of the properties as required by Rule 18 beyond what was stated in the body of the application. But it is contended that no such specification or description was necessary because the particulars which are required to be stated by Section 162, Bihar Tenancy Act, as it stood at the time the application for execution was made, were fully set out in the decree in respect of which the execution petition was filed. Section 162 was to the following effect:

When a decree has been passed for an arrear of rent due for a tenure or holding and the decree-holder applies u/s 235, Civil P.C., for the attachment and sale of the tenure or holding in execution of the decree, he shall produce a statement showing parganah, the estate and village in which the land comprised in the tenure or holding is situate, the yearly rent payable for the same and the total amount recoverable under the decree.

It is contended that all these particulars are set out in the decree and it was not necessary that they should have been repeated in the application for execution. The point however to be observed is that there is no reference to the decree in the execution petition and it is not expressly stated that the particulars required u/s 162 are already set out in the decree. This has to be emphasised as it is not clear from the record before us that any copy of the decree was filed along with the execution petition in 1939, but assuming that these particulars need not have been set out in the execution petition, the question still remains as to whether or not it was incumbent on the decree-holder to comply with the provisions of Order 21, Rule 13 to which reference has already-been made. In the present case one of the prayers made in the applications in question was for the attachment of properties, and that being so, prima facie Order 21, Rule 13 would be applicable to those applications. But it is contended on behalf of the appellant that Order 21, Rule 13 would not apply to a rent execution in view of the provisions made in Section 162, Bihar Tenancy Act. I am not, however, prepared to accept this argument. Section 143(2), Bihar Tenancy Act, provides that subject to the rules made under Clause (1) of that section and

subject also to the other provisions of this Act the Code of Civil Procedure, 1908, shall apply to all suits for recovery of rent instituted under the Act.

Prima facie therefore Order 21, Rule 13 would apply to a rent suit and there is nothing in Section 162 of the Act to suggest that that rule was intended to be made inapplicable. That section merely, provides that when an application is made tinder Section 235 which corresponds Order 21, Rule 11(2), certain additional particulars are to be given in the execution petition. It does not say that even though a prayer for attachment is made the description or specification of the properties to be attached which is required by Rule 13, is to be dispensed with. In my opinion Order 21, Rule 13 of the Code is applicable to a rent execution and the necessary particulars of the property to be attached ought to have been given in the application for execution.

The next question to be considered is what is the effect of the omission on the part of the decree-holders to give such particulars in their applications. The view which has prevailed in this Court as well as in other Courts is that, an application for execution containing no 1 description of what is sought to be attached and sold is one not in accordance with law: Asgar Ali v. Troilokya Nath Ghose (1990) 17 Cal. 631 , Abdul Rafi Khan and Others Vs. Maula Bakhsh, Sakkargauda Basangauda v. Bhimappa Hanmappa AIR 1931 Bom. 128, Lachmi Prasad v. Kapildeo Ojha AIR 1938 Pat. 75 and Bhagwat Prashad Singh v. Dwarka Prashad Singh AIR 1924 Pat. 23. This view is also supported by the language of Order 21, Rule 17 which provides:

On receiving an application for the execution of, a decree as provided by Rule 11, Sub-rule (2) the Court shall ascertain whether such of the requirements of Rule 11 to 14 as may be applicable to the case have been complied with; and, if they have not been complied with the Court may reject the application, or may allow the defect to be remedied then and there or within a time to be fixed by it.

Sub-rule (2) provides:

Where an application is amended under the provisions of Sub-rule (1) it shall be deemed to have been an application in accordance with law and presented on the date when it was first presented.

Now, this rule shows in the first place that it is the duty of the Court to ascertain whether the requirements of Rule 11 to 14 have been complied with, and, secondly, that it is only after they have been complied with that an application can be deemed to be an application in accordance with law. As in the present cases the requirements of Rule 13 were not complied with the applications made in the year 1939 were not applications made in accordance with law.

But it is contended on behalf of the appellant that the application might still be treated as applications to take certain steps in aid of execution and reliance is placed upon Saday Chandra Jana v. Paresh Nath Ghose AIR 1922 Cal. 44. In that case the application for execution was returned for amendment on three grounds, first the date of the disposal of the previous execution case had not been correctly stated: secondly, the calculation of the dues as stated in column 8 of the tabular statement was incorrect and thirdly, column 10 had not been duly filled up. For these reasons it was held., that the application in question could not be treated as an application for execution of the decree in accordance with law, but there were also three specific prayers made in the application, these being to the effect (1) that as one of the joint decree-holders had died the petitioner who was his legal representative might be permitted to proceed with the execution of the decree-in that character as also in his own right; (2) that as the other decree-holder did not join in the application, an order might be made in the terms of Rule 15 of Order 21, Civil P.C., and thirdly that inasmuch as one of the judgment-debtors had died, the notice contemplated by Rule 22 of Order 21 of the Code might be issued. The bench of the Calcutta High Court which decided the case held that in view of these three specific prayers the application in question might be treated as an application to take steps in aid of execution. This case has no bearing upon the cases before us because the applications for execution with which we have to deal must stand or fall as applications for execution and cannot be treated as applications to take any specific steps in aid of execution. In the case which was before the Calcutta High Court three specific prayers had been made and they were clearly set out in the application. In the present case it is very generally stated in the application that the necessary steps may be taken without making it cleat what steps were required to be taken. In neither of the Courts below was it contended that the applications in question can be treated as applications to take a step in aid of execution.

Thus the only question which we have to decide is whether the applications made in 1939 were applications for execution in accordance with law and I think I have said enough to show that they cannot be treated as such applications. If they were not applications for execution in accordance with law, then the present execution must be barred by Article 182, Clause (5), Limitation Act. Under that clause the period of limitation is three years from the date of the final order passed on an application made in accordance with law to the proper Court for execution or to take some steps in aid of execution of the decree or order. If the applications made in 1939 were not applications in accordance with law, then they cannot save limitation which must run from the date of the decree. The present applications being made more than three years from the date of the decree are clearly barred by limitation.

In this view I would uphold the judgment of the Courts below and dismiss these appeals. There will be no order as to costs.

Chatterji J.

I agree.