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PATNA HIGH COURT
G.N.Prasad, J.
Kumar Taranand Sinha
Versus
Thakur Chandra Bhusan Pd.Singh
A.F.A.O. No. 230 of 1964 ;
Decided On : MAY 03, 1967
EXECUTION OF DECREE - Amendment of Execution Petition - Limitation - Whether amendment petition can be regarded as a continuation of the original application - Order 21, Rule 17 of the Code of Civil Procedure - Interpretation and Application.
Fact of the Case:
The decree-holder filed an execution petition on 18-7-1958, which was not in accordance with law as it included a property that did not belong to the judgment-debtors. On 11-2-1960, the decree-holder filed an amendment petition to substitute the original property with another property belonging to the judgment-debtors. The executing court allowed the amendment on 4-3-1960. The judgment-debtors filed an objection under Sec. 47 of the Code of Civil Procedure, claiming that the amendment petition was barred by limitation. The executing court upheld the objection and recalled its order allowing the amendment.
Finding of the Court:
The court held that the amendment petition was a fresh application for execution and was barred by limitation under Article 182(5) of the Limitation Act, 1908. The court found that the amendment did not fall within the ambit of Order 21, Rule 17 of the Code of Civil Procedure, which allows for the amendment of defects in an execution petition. The court also held that the judgment-debtors were entitled to raise the objection after their property was attached under the order of the executing court.
Issues: 1. Whether the amendment petition was a fresh application for execution or a continuation of the original application. 2. Whether the amendment petition was barred by limitation under Article 182(5) of the Limitation Act, 1908. 3. Whether the judgment-debtors were entitled to raise the objection after their property was attached under the order of the executing court.
Ratio Decidendi: 1. The court held that the amendment petition was a fresh application for execution because it made a substantial departure from the original execution petition. The court relied on the test laid down in Lal Inderjit Nath Sahido V/s. Maharaja Pratap Udai Nath Sahido, AIR 1942 Pat 84, which states that a subsequent application should be deemed a fresh application if it marks a substantial departure from the original application. 2. The court held that the amendment petition was barred by limitation under Article 182(5) of the Limitation Act, 1908, because it was filed more than three years after the date of the final order in the first execution case. The court found that the amendment did not fall within the ambit of Order 21, Rule 17 of the Code of Civil Procedure, which allows for the amendment of defects in an execution petition. 3. The court held that the judgment-debtors were entitled to raise the objection after their property was attached under the order of the executing court because they had no reason to object to the execution as originally applied for, as it was not directed against any property belonging to them.
Final Decision: The court dismissed the appeal filed by the decree-holder.
G.N.Prasad, J.
1. This is a decree-holders appeal against the order of the executing Court upholding the objection of the judgment-debtors under Sec. 47 of the Code of Civil Procedure.
2. The decree under execution was passed on 8-2-1952 in Rent Suit No. 1 of 1951. The decree was put in execution in Execution Case No. 26 of 1954, which was dismissed for default on 28-7-1955. A second execution case, namely. Execution Case No. 23 of 1958 was filed by the decree-holder on 18-7-1958. and the notice required under Order 21, Rule 22. Code of Civil Procedure, was duly served upon the judgment-debtors. On 11-2-1960, however, the decree-holder filed an application to the executing court for amendment of the execution petition by deleting the property originally mentioned therein and substituting another property and to start the execution proceeding afresh. This petition was allowed on 4-3-1960, and on 11-3-1960. an order was passed for attachment of the substituted property. On 21-8-1961. the judgment-debtors filed an application under Sec. 47. Code of Civil Procedure, objecting to the executability of the decree mainly on two grounds; (i) the execution petition as originally filed on 18-7-1958 was not in accordance with law since admittedly the property originally mentioned therein did not belong to the judgment-deb-tors; and (ii) the petition for amendment of the list of property filed on 11-2-1960 must be deemed to be a fresh application for execution, but the same was barred by limitation, having been presented more than three years after the date of the final order which was passed in Execution Case No. 26 of 1954 on 28-7-1955. This objection of the judgment-debtors, which was registered as Miscellaneous Cas" No 27 of 1961. was allowed by the executing Court on 7-1-1963. The executing Court passed a further order recalling its order dated 4-3-1960, whereby it had allowed the petition for amendment of the execution petition dated 11-2-1960. The decree-holder thereupon took an appeal to the lower appellate Court but it was dismissed on 30-4-1964. Being thus aggrieved, the decree-holder has preferred this second appeal.
3. On the question that the execution case as originally levied on 18-7-1958 was not in accordance with law, there can be no legitimate room for any controversy. Upon the decree-holders own case, the property included in the original execution petition did not belong to the judgment-debtors, and it was for this reason that the decree-holder had filed his petition on 11-2-1960 for deleting that property and inserting another property therein. It is well settled that in order that an application for execution of a decree may be in accordance with law within the meaning of Articlr 182 (5) of the Limitation Act. 1908, it must not only be made to the proper court, but it must also be directed against some property belonging to the judgment-debtor or in which the judgment-debtor has some interest, so that the executing Court may be in a position to take steps for executing the decree. The executing Court cannot be in a position to take any such step where the property sought to be proceeded against does not belong to the judgment-debtor or in which the judgment-debtor has no interest whatsoever.
It is manuest that it had become necessary, for the decree-holder to ask for amendment of his original execution petition on the ground that the property as originally mentioned in his execution petition neither belonged to the judgment-debtors nor they had any interest therein. According to the decree-holder, the mistake had occurred due to the mistake of the scribe who had included in the original execution petition certain property belonging to the co-sharers of the judgment-debtors. Whatever might have been the reason for the mistake, there can be no doubt that the execution petition as originally presented on 18-7-1958, was, upon the decree-holders own case, not in accord-lance with law.
4. The mistake was sought to b
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