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Calcutta High Court
SABYASACHI MUKHARJI AND A. K. JANAH, JJ.
Shyama Pada Choudhury - Appellant
Versus
Saha Choudhury and Co. - Respondents
A. F. O. O. No. 135 of 1973
Decided On : 28 August 1975
EXECUTION OF DECREE - APPLICATION FOR EXECUTION - MAINTAINABILITY - RULE 10 OF CHAPTER XVII OF THE ORIGINAL SIDE RULES OF THE CALCUTTA HIGH COURT - IRREGULARITY - LIMITATION - ARTICLE 136 OF THE LIMITATION ACT, 1963 - STARTING POINT OF LIMITATION - MERGER OF DECREE OF TRIAL COURT IN DECREE OF APPELLATE COURT - TRUST PROPERTY - LIABILITY TO EXECUTION - DETERMINATION IN APPROPRIATE PROCEEDING.
Fact of the Case:
The appellant, defendant No. 6, challenged the maintainability of an application for execution of a decree for costs awarded in favor of the defendants Nos. 1, 2, and 3. The appellant argued that the application did not comply with Rule 10 of Chapter XVII of the Original Side Rules, specifically clause (c), which required a statement of the estimated value of the property sought to be attached. Additionally, the appellant contended that the application was barred by limitation under Article 136 of the Limitation Act, 1963, as the decree became enforceable on the date it was passed by the trial court, and the application was filed more than 12 years later. The appellant also claimed that the property sought to be sold in execution was a trust property, and as he was the trustee, it could not be proceeded against.
Finding of the Court:
The court held that the irregularity in the application for execution, if any, was not fatal and could be cured by amendment with the court's leave. The court also rejected the appellant's argument that the application was barred by limitation, as the decree that was sought to be executed was the decree of the appellate court, which was passed within 12 years of the application. Regarding the appellant's claim that the property was a trust property, the court declined to decide the issue in the execution proceeding, leaving it open to be agitated in subsequent proceedings, if necessary.
Issues: 1. Whether the application for execution was maintainable despite the alleged non-compliance with Rule 10 of Chapter XVII of the Original Side Rules? 2. Whether the application was barred by limitation under Article 136 of the Limitation Act, 1963? 3. Whether the property sought to be sold in execution was a trust property and, therefore, not liable to be proceeded against?
Ratio Decidendi: 1. The court held that the irregularity in the application for execution, if any, was not fatal and could be cured by amendment with the court's leave. The court reasoned that whether an application for execution is in accordance with law or not and whether any omission is material or not depends on the particular circumstance of each case. 2. The court held that the application was not barred by limitation, as the decree that was sought to be executed was the decree of the appellate court, which was passed within 12 years of the application. The court noted that after the passing of the decree by the appellate court, it is that decree alone which can be executed, and the date of the appellate decree has to be taken into consideration for purposes of computing the period of limitation for execution of the decree. 3. The court declined to decide the issue of whether the property was a trust property and, therefore, not liable to be proceeded against, as it was not necessary for the determination of the execution proceeding. The court left the issue open to be agitated in subsequent proceedings, if necessary.
Final Decision: The appeal was dismissed with costs, and all interim orders were vacated.
JANAH, J.:- This appeal is by the judgment-debtor defendant No. 6 and is against the judgment and order dated 6th March, 1973 passed by A.K. Sarkar, J. allowing an application for execution of the decree for costs awarded in favour of the defendants Nos. 1, 2 and 3.
2. The facts giving rise to the execution application are briefly as follows: In 1951 one Ramanath Das and others instituted a suit being suit No. 3367 of 1951 in this Court against the defendants. That suit was dismissed with costs on the 1st May, 1959 and it was decreed that the plaintiff and the defendants Sailesh Choudhry, since deceased, and Shyamapada, Choudhury the present appellant do pay to the defendants Nos. 1, 2 and 3 their costs of the suit including the reserve costs and costs of commission to be taxed by the Taxing Officer of this Court. Against the said decree the plaintiff alone preferred an appeal. The appeal was dismissed only with this modification that the decree awarding coats against the plaintiff was set aside and the rest of the decree was affirmed on June 7, 1962. It is admitted by both parties that there was no stay of operation of the decree passed by the trial court nor was there any injunction restraining the defendants
Nos. 1, 2 and 3 from executing the decree for costs. On August 14, 1963, the decree for costs was taxed in the sum of Rs. 18,538.56 P. and allocature was issued by the Taxing Officer. On 2nd May, 1972 a tabular statement supported by an affidavit of Sri P.K. Roy Choudhury was filed for execution of the said decree for costs on behalf of the decree-holders. In the said tabular statement the decree-holder prayed, inter alia, for attachment and sale of premises No. 1, Raja Naba Kissen Street, Calcutta, belonging to the defendant Shyamapada Choudhury. This application for execution was opposed on behalf of the defendant No. 6 the judgment- debtor who is the appellant in this appeal. The trial court overruled the objections urged on behalf of the judgment-debtor and allowed the application for execution. The defendant No.6 has come up on appeal against the said judgment and order of the trial court.
3. Mr. P. K. Dutt learned Counsel appearing on behalf of the appellant has, in the first place, urged that the present application for execution is not maintainable as it is not in compliance with Rule 10 of Chapter XVII of the Original Side Rules of this Court. He has contended that Rule 10 of Chapter XVII is mandatory and non-compliance with any of the clauses is fatal to the maintainability of the application for execution. According to him, clause (c) of R.10 not having been complied with the execution application is not maintainable. Rule 10 and Clause (c) thereof of Chapter XVII are in the following terms:
"10. The application for execution, whether the provisions of Order XXI, Rule 22 of the Code, apply or not, shall be in Form No. 1, and shall be on a sheet of durable paper of good quality foolscap size, and shall, in addition to the particulars mentioned in Order XXI, Rule 11 (2) of the Code, contain the following:-
.... .. .... ... ... .. .... ... ... ...
.... .. .... ... ... .. .... ... ... ...
(c) A statement of the estimated value of the property sought to be attached, or, if such property is incumbered, the value thereof after providing for the satisfaction of the incumbrances.
In all cases, the application shall be accompanied by a duly certified copy of the decree."
In support of this contention Mr. Dutt has drawn our attention to the decision in Satyendra Nath Bose v. Bibhuti Bhusan Bhar, AIR 1963 Cal 104. In that case an application for execution was made to this Court on the Original Side by a person claiming to participate in the assets under Section 73, Civil P.C., but his application was not accompanied by a certified copy of the decree as required by Rule 10 of Chapter XVII of the Original Side Rules. Further in that case, there was, in fact, no decree in existence on the date of the application, the decre
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