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HIGH COURT OF CALCUTTA
K. C. DAS GUPTA, DEBABRATA MOOKHERJEE
BABURAM LAL - Appellant
Versus
DEBDAS LALA - Respondent
A. F. O. O. 58 Of 1956
Decided On : JUNE 04, 1958
CIVIL PROCEDURE CODE - SECTION 47 - AMENDMENT OF EXECUTION PETITION - APPLICATION UNDER SECTION 47 - EXECUTION PROCEEDINGS - DECREE - APPEAL - SUPERSESSION OF ORIGINAL DECREE - EXECUTION OF APPELLATE COURT'S DECREE - COSTS - OWELTY MONEY - SET OFF.
Fact of the Case:
The plaintiff filed an application for execution of a decree for partition and accounts. The defendant filed an application under Section 47 of the Civil Procedure Code, claiming that he was entitled to a larger sum from the plaintiff and therefore the plaintiff's prayer for execution for a smaller sum could not proceed. The plaintiff also filed an application for amendment of the execution petition, seeking to add certain sums to the decretal amount.
Finding of the Court:
The court held that the trial court erred in not considering the question of the exact amount payable to the plaintiff after deducting the amount payable by the plaintiff to the defendant. The court also held that the execution proceedings did not become dead on the passing of a decree by the appellate court, but rather became an application for the execution of the appellate court's decree.
Issues: 1. Whether the court below was justified in refusing the plaintiff's prayer for amendment of the original application for execution. 2. Whether the defendant was entitled to get a larger sum from the plaintiff under the decree. 3. Whether the execution proceedings became dead on the passing of a decree by the appellate court.
Ratio Decidendi: 1. The court held that the trial court was justified in refusing the plaintiff's prayer for amendment of the original application for execution, as the plaintiff had not provided a proper explanation for the addition of certain sums to the decretal amount. 2. The court held that it was not clear from the decree whether the defendant was entitled to get a larger sum from the plaintiff, as the plaintiff was also entitled to a sum from the defendant. 3. The court held that the execution proceedings did not become dead on the passing of a decree by the appellate court, but rather became an application for the execution of the appellate court's decree.
Final Decision: The court allowed the appeal in part, set aside the order allowing the application under Section 47 of the Civil Procedure Code dismissing the execution case, and directed that the execution case should be disposed of by the trial court in accordance with law in the light of the directions given above.
( 1 ) THIS appeal is against an order allowing an application under Section 47 of the Civil Procedure Code and rejecting an application for amendment of the execution petition. The suit was one for partition and accounts. A preliminary decree was passed on 20-2-1940. The appeal against the preliminary decree was dismissed on 12-1-1944. The final decree was made on 3-12-1946. The application for execution, in which the application for amendment and the objection under Section 47 of the Civil Procedure Code-were made, was filed on 8-6-1949. The decretal sum was mentioned there as Rs. 1,483-1-6 pies, this being the amount of the decree on the basis of the Commissioner's report. Certain other sums were asked for as costs of copy of the decree and costs of execution but set off was also given and the net total was mentioned as Rs. 1,342-14-9 pies. By the application for amendment, the plaintiff wanted to add to the sum realisable on account of the decree itself a sum of Rs. 495/-, said to be due on account of costs of final decree, stamp and other accounts and also the costs or a first appeal amounting to Rs. 278-14-0. It was prayed that in place of Rs. 1,483-1-6 pies should be substituted the sum of Rs. 2,256-15-6 pies. There was a further prayer for adding a prayer for possession of certain movables and also that failing such delivery of possession, the value of the movables amounting to Rs. 1,404/- might be "realised by auction sale of the immovable properties of the judgment debtor. " The application for amendment was disallowed. The application under Section 47 was allowed. Looking at the application for amendment itself, it is difficult to make out how the sum of Rs. 495/-sought to be added as due on account of final decree, cost and stamp was made out. In the absence of proper explanation on this, the Court below was, in my opinion, entitled to exercise its discretion against allowing such an amendment. As regards the other sum of Rs. 278-14-0 sought to be added as costs of the first appeal, I am also of opinion that the Court below rightly rejected this application as there is no explanation why this was not included at the time the application for execution was first made in June 1949.
( 2 ) AS regards the prayer for possession of the movables, we find that on an earlier occasion there was a previous application for execution and delivery of these movables. That was unsuccessful, The prayer for possession of the movables was not, however, made in the present application for execution as originally framed.
Whether or not such an independent application can still be made, it is not necessary for us to consider. I am clearly of opinion, however, that when the appellant did not choose to include this prayer for delivery of possession of the movables in the application as originally made, it will not be proper for us to interfere with the order passed by the executing Court dismissing such an application in the exercise of its discretion. I have, therefore, reached the conclusion that we shall not be justified in interfering with the order refusing the plaintiff's prayer for amendment of the original application for execution.
( 3 ) THE application of the defendant judgment debtor under Section 47 of the Civil Procedure Code was primarily on the basis that he was entitled to get from the plaintiff a larger sum and so under the provisions of Order 21, Rule 19 of the Civil Procedure Code, the plaintiff's prayer for execution for this smaller sum could not proceed. It appears that this Court on appeal from the final decree held that the defendant was entitled to a sum of Rs. 1,589-0-8 as owelty money instead of the smaller sum decreed by the trial Court the rest of the decree was affirmed. This Court ordered that a fresh decree should be drawn up. It is unfortunate that the trial Court did not carry out this Court's direction in the way it should have done. Instead of drawing up a decree afresh, it merely am
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