Radhika Prosad Das gupta vs Niranjan Das Gupta

Das Gupta, J.—This appeal is directed against an order allowing amendment of an application for execution. The Appellant was the first Defendant in a suit for contribution brought by three brothers, Jagadananda Das Gupta, Premananda Das Gupta and Jnanadananda Das Gupta against the three sons of Gobinda Prosad Das Gupta, namely, Baradananda alias Radhika Prosad Das Gupta, Sarada Prosad Das Gupta and Kulada Prosad Das Gupta. The trial court passed a decree in the following terms:

... It is ordered and decreed that...this suit be decreed in a modified form on contest for Rs. 2,214-5-51/2 pies that out of the said money each of the Plaintiffs (respectively) do get from each of the Defendants Rs. 738-0-9 gandas 1 kara. 1 kranti, but the sum of Rs. 439-10-4 pies due to the Plaintiff No. 1 by the defenfants Nos. 1 and 2, will be set off against the money Jdue to the Plaintiffs Nos. 1 and 2 in title Suit No. 38 of 1931. Consequently the Plaintiff No. 1 will get only Rs. 246-0-3 gandas 51/2 krantis from the defyndant No. 3 and each of the Plaintiffs Nos. 2 and 3 will get the total sum of Rs. 246-0-3 gandas 51/2 krantis from each of the Defendants, that the claim for future interest is disallowed and the Defendants do pay to the Plaintiffs costs in proportion to the decree passed in this suit amounting to the total sum of Rs. 262-4-9 pies and the costs in proportion to the decree passed by the appellate Court amounting to Rs. 276-6-9 pies, i.e., the total sum of Rs. 538-11-6 pies together with interest at the rate of 6 per cent, per annum from this day until realisation in proportion to their shares, i.e., each Defendant do pay to each Plaintiff Rs 59-13-81/2 pies...

This decree was passed on January 15, 1932. The Plaintiffs Premananda and Jnanadananda filed an appeal to this Court against this decree and on" appeal it was ordered:

... It is ordered and decreed that this appeal be allowed and the Plaintiff-Appellants be awarded interest pendente lite as claimed and their share of the amount Rs. 83 paid to the superior Maliks as Sadar rents. And it is further ordered and decreed that this cross-objection be and the same is hereby dismissed: And it is further ordered and decreed that each party do bear its own costs: And it is further ordered and decreed that the said interest pendente lite and Plaintiff-Appellants'' two-third share of Rs. 83 be added to the amount decreed by the court below in favour of the Plaintiff-Appellants.

An application for execution was filed by one of the Plaintiffs, namely, Premananda, Plaintiff No. 2, on January 11, 1937. That was dismissed for default on February 9, 1937. The Plaintiff No. 3 and the heirs of Plaintiff No. 2 again applied for execution on January 1, 1940, that is, within three years of the first execution case filed by Plaintiff No. 2. This was dismissed for default on January 19, 1940. The third attempt for execution commenced on January 5, 1943, by Plaintiff No. 3 and the heirs of Plaintiff No. 2. This was dismissed for default on September 3, 1943. On July 17, 1944, a fresh application for execution was filed by the heirs of Premananda, Plaintiff No. 2 and by Jnanadananda Plaintiff No. 3. Execution was sought by this application against all the three Defendants. In col. 7 the amount due was mentioned as Rs. 5,135-15-2 pies as consisting of Rs. 5,108-15-2 jibes being the claim mentioned in the certificate from the court which had passed the decree and Rs. 27 being the costs of execution. In col. 10, the relief prayed was mentioned in these terms:

It is prayed that the money may be realised by attachment and auction sale of the immovable property.

In col. 11, under "Mode in which assistance of the court is "required", it was stated:

In the first place the execution case may be registered and then it is prayed that the amount mentioned in column 7, viz., Rs. 5,108-15-2 pies together with costs of execution may all be realised by attachment and auction sale of the immovable properties owned and possessed by the judgment-debtors together with masonry built house and fittings and fixtures etc., and all right and interest therein.

An objection u/s 47 of the CPC was filed by the present Petitioner. This was first disallowed but on an application for review the learned Judge recalled his previous order and allowed the objection and dismissed the execution case. Against this an appeal was filed to this Court; but it was held that the appeal lay to the District Judge. The decree-holders then presented the appeal before the court of the District Judge. The learned Additional District Judge who heard the appeal allowed it holding that the execution case was maintainable and dismissed the application u/s 47 of the Code of Civil Procedure.

On appeal from this decision, this Court held that the decree that had been passed must be regarded as A severable dercee passed in favour of each of the Plaintiffs against each of the Defendants and so the execution that was levied by Plaintiffs Nos. 2 and 3 together for an aggregate sum of Rs. 5,000 and odd against all the judgment-debtors was not maintainable in law.

With reference to a prayer that appears to have been made on behalf of the Respondents for leave to amend the execution petition to remove the defect pointed out by the court this Court ordered:

This is a matter which would be considered by the court below if and when a proper application for amendment is made. If such application is made the court will consider whether the amendment should be granted or not. At this stage we express no opinion on this question.

In view apparently of the likelihood of an application for amendment being made this Court did not dismiss the execution case but though allowing the appeal remitted the execution case to the court of appeal below.

An application for amendment was thereafter filed in the court of the Additional District Judge on August 10, 1951. The prayer in this was in these terms:

(1) That in column 7 of the execution petition, after the figure "Rs. 5,135-15-2" the following should be added, "one-fourth of the said sum is due to Plaintiffs 2(ka) to 2(ga) from the Defendant No. 1 and one-fourths of the said sum is due to Plaintiff No. 3 from Defendant No. 1, one-fourth is due to Plaintiff 2(ka) to 2(ga) from heirs of Defendant No. 2 and one-fourth is due to Plaintiff No. 3 from heirs of Defendant No. 2. (2) That in column No. 11 the following should be added:

Out of the said sum, one-fourth share thereof is to be paid by the Defendant No. 1 to Plaintiffs 2(ka) to 2(ga), one-fourth share by Defendant No. 2''s heirs to the said Plaintiffs, one-fourth share by Defendant No. 1 to Plaintiff No. 3 and one-fourth share by heirs of Defendant No. 2 to the said Plaintiff.

The judgment-debtors raised several objections the principal of which was that a fresh execution against the judgment-debtors would be barred under the provisions of Section 38 of the CPC and as 12 years had elapsed since the date of the decree, the amendment should not be allowed. This objection was overruled by the learned Judge in view of what he considered to be a very unusual circumstance of the case. He also overruled the objection that the execution case was barred by limitation as regards the Plaintiff No. 3 on the ground that he had not joined in the first execution petition, relying on the authority of Mungul Pershad''s I.L.R (1881) Cal. 51 case. As regards the objection that the amendment prayer was not sufficient to remove all the defects, the learned Judge held that the defects, that would remain, would be of a very highly technical character and may be ignored. On "these considerations the learned Judge passed an order allowing amendment and remitting the amended execution petition to the lower court for execution on condition that the decree-holders pay to each of the surviving judgment-debtors Rs. 250 by way of costs and compensation of the execution or by petition in the executing court deduct these amounts from their separate claims as against the judgment-debtors separately before the properties of the judgment-debtors are proceeded against.

The main contention on behalf of the Petitioner before us is that the ordinary rule that an amendment which has the effect of depriving a party of a valuable right that has accrued to him by the law of limitation, should not be allowed, should be followed. It is undoubtedly a serious thing for the court depriving a party of any right that has accrued to him and the court will not do so ordinarily but the Privy Council has laid down the rule that in extraordinary circumstances the court will not hesitate to do even such a serious thing, as not to do so is greater injustice than doing so. As early as 1867, their Lordships in the Privy Council themselves ordered that the Appellant should be allowed to amend his plaint for the specific purpose that the defence of limitation might not be taken. (Vide, Mohummud Zahoor Ali Khan v. Mussumat Thakooranee Rutta Koer and Ors. (1867) 11 M.I.A. 468, 485. In this connection their Lordships observed:

They have already intimated that the appeal must be dismissed against all the Respondents except Rutta Koer; and they have felt some doubt whether inasmuch as the suit was wholly misconceived, the proper course was not to dismiss this appeal altogether, without prejudice to the right of the Appellant to bring a new suit against Rutta Koer upon this Bond, treating it as a mere money Bond. Considering, however, that such a suit would probably be met by a plea of the Act of Limitations; that in the circumstances of this case such a defence would be inequitable; and that, the Respondent not having appeared their Lordships are not in a condition to put her own terms as to her defence to a fresh suit; they have come to the conclusion that the fairer course is to do what the Judge of the Court of First Instance might, under the Code of Civil Procedure, have done at an earlier stage of the course, namely, allow the Appellant to amend his plaint so as to make it a plaint against Rutta Koer alone for the recovery of money due on a Bond.

More than half a century later in Charan Das v. Amir Khan ILR (1920) Cal. 110, the Privy Council refused to interfere with an order of amendment that was allowed By the Judicial Commissioner. North-Western Frontier Province.

In refusing to interfere with the amendment allowed, their Lordships observed:

That there was full power to make the amendment cannot be disputed and though such a power should not as a rule be exercised where its effect is to take away from a Defendant a legal right which has accrued to him by lapse of time, yet there are cases see for example Muhammad Zahoor Ali Khan v. Rutta Koer(2) where such considerations are outweighed by the specia circumstances of the case, and their Lordships are not prepared to differ from the Judicial Commissioner in thinking that the present case is one.

I have come to the conclusion that in the present case the circumstances are so very peculiar as to justify the action taken by the learned Subordinate Judge in allowing the amendment. this Court has already held that the decree that was passed was not a joint decree but the decree which, in substance, consisted of nine different decrees. In my judgment, it is fair to say however, that there was considerable scope for error on the part of the decree-holders or their lawyers on this question. The fact that for several years it appears not to have struck either the decree-holders or their lawyers, nor the jtidgment-debtors or their lawyers, that it was a severable decree for which execution could not be prayed for in the manner that was adopted is itself a sufficient proof of the fact that the decree-holders were misled. There is no question of any want of good faith on their part. The mistake was clear because of the wrong view taken by the decree-holders'' adviser that the decree was a joint decree. In my judgment the words used by their Lordships in Charan Das''s case ILR (1920) Cal. 110 as regards an error which made the prayer for amendment necessary apply fully to this case:

All that happened was that the Plaintiffs, through some clumsy blundering, attempted to assert rights that they undoubtedly possessed under the statute in a form which the statute did not permit.

In my judgment, the mistake in the present case is really one of form rather than one in substance, but as the statute stands in the way of their succeeding on the application for execution as framed I think we shall not be justified in interfering with the order of the learned Subordinate Judge in allowing the amendment of the application.

Mention must be made of another contention raised by Mr. Bose namely that in any case the present execution sought for cannot succeed even after amendment as there was only one certificate of non-satisfaction of one decree and not of the several decrees passed. It seems to me that if we, as we are bound to do, consider the decree drawn up in one form as a number of several decrees, there is no reason why the one certificate of non-satisfaction that nothing has been paid out of the claim of Rs. 5,108-15 should not be considered as a certificate of non-satisfaction of all the decrees.

Nor am I impressed by the argument that the amendment should have been disallowed because the shares said to be due from different judgment-debtors have been wrongly mentioned. That is a matter which can be properly raised in the executing court and disposed of by that court. It is not right that any mistake on this ground should be a reason for not allowing this amendment.

A question which was raised during the discussion was whether there should be one application for execution for the several decrees which were incorporated in one form or there should be as many applications as there are in fact decrees. This question does not appear to have been considered in any case. As at present advised I think however that the fact that one application has been made should not be a reason to refuse the execution. In my judgment it will be proper for the executing court to proceed in the manner indicated in Order II, Rule 6 of the CPC for a case where several causes of action though properly joined together cannot be conveniently disposed of together.

On all these grounds, I have come to the conclusion that this appeal should be dismissed. The parties will bear their own costs. No order is necessary on the application in the alternative u/s 115 of the Code of Civil Procedure.

Debabrata Mookerjee, J.

I agree.