The Court has the power to permit the amendment of an execution application even after the period of limitation has expired, if the defect in the application was not due to the fault of the decree-holder.

Headnote:
EXECUTION OF DECREE - LIMITATION - AMENDMENT OF EXECUTION APPLICATION - POWER OF COURT - [ORDER XXI, RULES 11, 17, 22 OF THE CODE OF CIVIL PROCEDURE, 1908] - The Court has the power to permit the amendment of an execution application even after the period of limitation has expired, if the defect in the application was not due to the fault of the decree-holder. The Court should take a healthy and practical view and should not defeat the decree by technical considerations.
Fact of the Case:

The respondent bank filed an application for execution of a consent decree passed in 1977. The application was defective as it only sought the issuance of a notice under Order XXI, Rule 22 of the Code of Civil Procedure, 1908, and did not specify the mode of execution. The notice was issued and made absolute, but no further steps were taken to execute the decree. In 1989, the bank filed an application for issuance of an insolvency notice to the appellants. The appellants filed a motion to set aside the insolvency notice, claiming that the decree was inexecutable as the execution application was not valid and had not been finally disposed of.
Finding of the Court:

The Court held that the execution application was not a valid application as it did not seek assistance from the Court in the manner prescribed under Order XXI, Rule 11(2)(j) of the Code of Civil Procedure, 1908. However, the Court also held that the defect in the application was not due to the fault of the decree-holder, and that the Court had the power to permit the amendment of the application even after the period of limitation had expired. The Court further held that the decree was not barred by limitation on the date of service of the insolvency notice because the execution application was still pending.
Issues: 1. Whether the execution application was a valid application. 2. Whether the Court had the power to permit the amendment of the execution application after the period of limitation had expired. 3. Whether the decree was barred by limitation on the date of service of the insolvency notice.
Ratio Decidendi: 1. The Court held that the execution application was not a valid application as it did not seek assistance from the Court in the manner prescribed under Order XXI, Rule 11(2)(j) of the Code of Civil Procedure, 1908. However, the Court also held that the defect in the application was not due to the fault of the decree-holder, and that the Court had the power to permit the amendment of the application even after the period of limitation had expired. 2. The Court held that the Court has the power to permit the amendment of an execution application even after the period of limitation has expired, if the defect in the application was not due to the fault of the decree-holder. The Court relied on Order XXI, Rule 17(2) of the Code of Civil Procedure, 1908, which provides that an amended application shall be deemed to have been presented on the date when it was first presented. 3. The Court held that the decree was not barred by limitation on the date of service of the insolvency notice because the execution application was still pending. The Court held that the stage for issuance of the notice under Order XXI, Rule 22 of the Code of Civil Procedure, 1908, arises only when the application is examined by the executing Court and admitted after the defects, if any, are remedied by the decree-holder.
Final Decision: The Court dismissed the appeal and held that the decree was not barred by limitation on the date of service of the insolvency notice.

JUDGMENT - PENDSE M.L., J.:—The respondent bank instituted Suit No. 1747 of 1976 against the appellants on the Original Side of this Court for recovery of sum of Rs. 48,494.05 along with simple interest on the principal sum of Rs. 46,520.31 at the rate of 6% per annum from the date of the decree till realisation. On January 17, 1977 this Court passed a consent decree and the decretal amount as sought by the bank was made payable by instalments. The appellants were directed to pay the amount by monthly instalment of Rs. 1200/-, first of such instalment to be paid on or before February 10, 1977 and recurring instalments to be paid on or before tenth day of each succeeding month. The decree also provided that in the event of the appellants committing default of any three monthly instalments, the bank will be entitled to recover the entire decretal amount forthwith. The appellants committed default and on April 10, 1977 the bank served notice upon the appellants informing of the commission of three defaults and calling upon to pay the decretal dues forthwith. The appellants made some part payment. On June 27, 1977 the decree was sealed by the Registry of this Court.

2. On July 5, 1988 the bank filed an application for execution of the decree. The mode in which the assistance of the Court was sought, was “by issuing notice to the defendants under Order XII, Rule 22 and if no cause is shown, by allowing execution to issue”. The column initially referred to the mode in the following terms :

“and thereafter issuing, warrant of attachment under Order XXI, Rules 43 and 54, attaching the movable and immovable properties of the defendants lying and being at their respective address mentioned in the title of the suit.”

The later portion was struck off and what remained was the relief of issuing notice under Order XXI, Rule 22 of the Code. The application for execution was numbered as Application No. 144 of 1988 and on July 19, 1988 the Prothonotary and Senior Master of this Court directed notice to be issued under Order XXI, Rule 22 of the Code of Civil Procedure. The notice, after service, came up for hearing before the Chamber Judge and by order dated October 31, 1988 the notice was made absolute. The notice called upon the appellants to show cause why consent decree should not be executed. It is not in dispute that no steps were taken after the Chamber Judge made the notice absolute, for execution of the decree.

3. On June 23, 1989 the bank lodged proceedings for issuance of insolvency notice to the appellants. On June 27, 1989 the Insolvency Registrar issued notice to the appellants intimating that thirty five days after the service of notice, the appellants shall satisfy the decree or furnish security for the payment of the decretal dues. The insolvency notice was served on the appellants on July 21, 1989. The appellants took out Notice of Motion No. 105 of 1989 on August 21, 1989 for setting aside the insolvency notice. The appellants claimed that insolvency notice should be set aside as the remedy of the respondent bank to execute the decree stands extinguished on expiry of twelve years from the date of passing of the decree. The appellants claimed that as the decree was inexecutable, the insolvency notice was not valid and required to be set aside. The motion was resisted by the respondent and the learned Single Judge, by impugned order dated June 20, 1992, came to the conclusion that as the application for execution of the decree filed on July 5, 1988 was not finally disposed of, the claim of the appellants that the decree was inexecutable on the date of service of notice of insolvency cannot be accepted. The trial Judge thereupon dismissed the notice of motion and that has given rise to the filing of this appeal.

4. Shri Cooper, learned Counsel appearing on behalf of the appellants, submitted that the finding of the trial Judge that the execution application was alive and the decree cannot be said to be inexecutable on the date of s

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Judicial Analysis