Pratap Udai Nath Sah Deo vs Baraik Lal Sahi and Others

Manohar Lall, J.—In this appeal by the decree-holder the only question for decision is whether the execution of the decree was barred by limitation.

On 10th February 1939, the appellant obtained a decree against twenty-five judgment-debtors interested in the tenure. An application to execute the decree was made on 9th February 1942 with a prayer that the tenure may be sold under the provisions of Section 208, Chota Nagpur Tenancy Act. The sale of the tenure was fixed for 29th August 1942. The sale date was adjourned ultimately to 5th April 1943. On that date, an objection was filed on behalf of one of the judgment-debtors, Baraik Bhagwat Sahi to the effect that no sale under the Chota Nagpur Tenancy Act could be held as all the co-sharers of the tenure were not made parties and as one of the judgment-debtors, Baraik Bandhu Sahi, died long before the date of the decree. At the hearing of the objection, the objector did not press his objection that all the co-sharers were not made parties, but confined his objection to the fact that Baraik Bandhu Sahi was in fact dead and his heirs had not been substituted. The Court found that Baraik Bandhu Sahi was dead. It should be stated here that the decree-holder on 1st October 1942 had filed an application that the brother of Baraik Bandhu Sahi should be substituted. On that application notice was directed to be issued to the brother and all the other judgment-debtors. The judgment-debtor then stated that it was true that Matan Sahi was the brother of the deceased judgment-debtor but there was another heir, namely the widow of the judgment-debtor, who had not been substituted. Accordingly the decree-holder filed another application on July 1943 that the widow should also be substituted.

After hearing the evidence the trial Court found that the date of death of Baraik Bandhu Sahi was 13th March 1939, that is to say after the decree under execution but before the application for execution had been filed. After coming to this decision the Court addressed himself to the question whether the amendment sought for is legal and whether the execution can proceed after this amendment, and answered the question thus:

The petitions for amendment of the execution petition were filed on 1st October 1942, 29th July 1943 and 19th August 1943, i.e., after the 3 years'' limitation period was over from the date of decree. In my opinion the amendment sought for is a substantial change in the original prayer and cannot be allowed.

Accordingly he allowed the objection and dismissed the execution.

In appeal, the learned Judicial Commissioner of Chota Nagpur agreed with the trial Court that Baraik Bandhu Sahi died on 13th March 1939, and, therefore, the decree under execution was a good decree, as on the date of the decree Baraik Bandhu Sahi was alive. The learned Judge however thought that the attempt of the decree-holder to execute the decree in a proceeding which had abated against Baraik Bandhu Sahi and his heirs could not be allowed and that the applications dated 29th July 1943 and 19th August 1943 should be treated as fresh applications. He accordingly upheld the objection of the judgment-debtors. Hence the second appeal to this Court.

Mr. R.S. Chatterji on behalf of the appellant relies on the case in Sheogobind Ram Vs. Mt. Kishunbansi Kuer, in support of his contention that the amendment sought for should have been allowed and that if that amendment had been allowed, it would have related back to the date of the application for executing the decree which was filed on 9th February 1942. He relies upon the findings of the Court below that the decree-holder did not come to know of the death of the judgment-debtor before 1st October 1942.

In my opinion, this contention is correct. Kulwant Sahay, J. who delivered the judgment of the Division Bench in the case relied on held that the application for execution then under consideration substantially complied with the requirements of Order 21, Rule 17 and that the only defect in the application was that one of the judgment-debtors had died, and this defect was not brought to the notice of the Court at the time the application was presented and, therefore, the defect could not be removed then and there:

The defect was brought to the notice of the Court on 22nd July 1930, and as soon as the fact was brought to the notice of the Court, it fixed a time, namely up to 29th July 1930, to correct the mistake. The provisions of Order 21, Rule 17 were, therefore, substantially complied with, and when in compliance with the order of the Court the decree-holder filed his application on 28-7-1930, that application must be taken as an application for amendment of the original application filed on 15th July for substitution of the name of Sheogobind Kahar in place of the deceased judgment-debtor as the person against whom the execution of the decree was sought. If that is so, then the effect of that amendment would be to treat the application for execution as validly presented on 15-7-1930.

This is exactly the situation in the present case. When the defect consequent upon the death of the judgment-debtor became known to the decree-holder he brought the fact to the notice of the Court and filed an application for amendment of the execution petition. That application in the circumstances should have been allowed and if allowed, the amendment would have related back to the date of the presentation of the application for execution.

The learned Judicial Commissioner, as stated already, thought that the order of amendment could only be made by the Court at the time the application for execution was presented and could not be made on a subsequent date because, in his view the proceedings had abated by reason of the death of the deceased judgment-debtor. This contention was also examined by Kulwant Sahay, J. at p. 551 where he relied upon the case in Gnanendra Kumar Rai v. Shama Sunder AIR 1918 Cal. 73 and held that an order for amendment, when a defect is brought to the notice of the Court, is an order under Order 21, Rule 17, Criminal P.C., and has the effect that the amendment relates back to the date of the original application. Moreover, I do not see how the proceeding which was started on the application filed on 9-2-1942 could be said to have abated against the judgment debtor by reason of his death which took place before this application was filed. The truth of the matter is that the proceeding was defective in its initiation and not that the proceeding became defective after its initiation. It is exactly when a defect of this character occurs in proceedings for the execution of a decree by reason of the death of a judgment-debtor being unknown to the decree-holder that the Court is asked to exercise a sound discretion in allowing the amendment to be made so as to enable the decree-holder to reap the fruits of his decree. The matter would have been otherwise if the decree-holder was aware of the death of the judgment-debtor before the application for execution had been filed and had deliberately put in an application against the deceased judgment-debtor. In such a case, the executing Court may exercise a discretion in refusing to allow the amendment sought for. But, in the present case, it has been found by the trial Court that it was only on 1-10-1942 that the decree-holder came to know by reason of the objection filed by the judgment-debtor that one of the judgment-debtors had died and he thereupon promptly put in an application for amendment of the decree. In my opinion, this appeal must be allowed and the decisions of the Courts below set aside. The execution case will now be revived and must be disposed of in accordance with law at an early date.

Reuben, J.

I agree.