Back
High Court Of Calcutta
BIMAL CHANDRA BASAK, S. K. HAZARI
RAJENDRA PRASAD AGARWALLA - Appellant
Versus
ALLAHABAD BANK - Respondent
A. F. O. O. 388 Of 1985
Decided On : 04/18/1986
EXECUTION OF DECREE - AMENDMENT OF TABULAR STATEMENT - COURT'S POWER TO ALLOW AMENDMENT - SCOPE AND LIMITS - ALTERATION OF CHARACTER OF EXECUTION PROCEEDINGS - PRINCIPLES GOVERNING ALLOWANCE OF AMENDMENT.
Fact of the Case:
The plaintiff bank filed an execution application in tabular form seeking to execute a decree passed against the defendants. The tabular statement initially left blank spaces for particulars of immovable properties and contained prayers for assistance from the court in various modes, including attachment and sale of properties. Later, the bank filed an application to amend the tabular statement by filling in the particulars of immovable properties and adding a new prayer for the appointment of a receiver over certain assets and properties of the judgment-debtors. The judgment-debtors objected to the amendment, arguing that it would substantially alter the nature of the execution proceedings and that the period of limitation for making a fresh application for execution had expired.
Finding of the Court:
The court held that the power to allow amendments to execution applications is not restricted to Order 21, Rule 17 of the Code of Civil Procedure (CPC) and that the court has ample jurisdiction to allow amendments even if they are not covered by Rule 17. However, the court must consider whether the amendment has the effect of substantially altering the character of the execution proceedings.
Issues: 1. Whether the court has the power to allow amendments to execution applications beyond the scope of Order 21, Rule 17 of the CPC? 2. Whether an amendment that substantially alters the character of the execution proceedings can be allowed? 3. Whether the amendment sought by the bank in the present case would substantially alter the character of the execution proceedings?
Ratio Decidendi: 1. The court has ample jurisdiction to allow amendments to execution applications even if they are not covered by Order 21, Rule 17 of the CPC. This power is derived from Sections 151 and 153 of the CPC, which empower the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court. 2. An amendment that substantially alters the character of the execution proceedings cannot be allowed. This is because such an amendment would prejudice the rights of the judgment-debtors who have acquired valuable rights by virtue of the expiry of the period of limitation for making a fresh application for execution. 3. The amendment sought by the bank in the present case did not substantially alter the character of the execution proceedings. The amendment merely filled in the particulars of immovable properties that were already mentioned in the original tabular statement and added a new prayer for the appointment of a receiver over certain assets and properties of the judgment-debtors. This prayer was in the nature of particulars of the prayer for attachment and sale of properties that was already contained in the tabular statement.
Final Decision: The court dismissed the appeal and upheld the order of the lower court allowing the amendment of the tabular statement.
( 1 ) THIS appeal is directed against a judgement and order passed by the learned single Judge of this Court on 16th July 1985 whereby the learned Judge allowed the application of the plaintiff decree-holder for amendment of the tabular statement filed on or about 26th July, 1984 in the manner shown in red ink in a copy of the tabular statement being Annexure-X to the said application and for ancillary orders/directions.
( 2 ) THE suit was filed by the Allahabad Bank Ltd. , the predecessor-in-interest of the respondent No. 1 against the defendants whereby on the 4th Aug. 1972 a decree was passed against the defendant No. 2 for a sum of Rs. 71,722. 45 P. with interest at the rate of 6% per annum on the principal sum of Rs. 70,000/- from 7-9-68 until realisation. On 26th July 1982 the execution application in tabular form was filed. In such Tabular Statement under column 10, that is, the mode in which the assistance of the Court is required, the following prayers were made :" (A) Leave be granted to the petitioner to execute the decree dt. 4th Aug. 1972 passed by this Hon'ble Court in the above suit against (i) Rajendra Prasad Agarwalla, (ii) Ghanshyamdas Agarwalla, (iii) Lalit Mohan Agarwalla, (iv) Bhawani Prasad Agarwalla and (v) Vinoy Kumar Agarwalla and each of them jointly and severally as being the partners of the said firm and to proceed with the execution of the decree against the properties and assets of the said partners; (b) The said persons as mentioned in prayer (a) of the petition be directed to disclose their assets and properties by affidavit or otherwise in any reliable manner and also be directed to attend this Hon'ble Court on a day or days as may be fixed by this Hon'ble Court for being examined as to their assets and properties out of which the decree in this suit may be satisfied; (c) In the event of disobedience and/or non-compliance with the directions given by this Hon'ble Court the said persona as mentioned in prayer (a) of the petition and each of them be produced before this Hon'ble Court by the Sheriff of this Hon'ble Court or by the Police Authority of Calcutta so that the said persons and each of them may be examined for ascertaining the assets and properties against which the decree may be satisfied; (d) The decree be executed by attachment and sale of those properties and assets as may be found belonging to the said persons as mentioned in prayer (a) of the petition by appointment of a Receiver over the same with a direction to take possession of such properties and assets and by selling the same either by public auction or private treaty with a direction to pay the net sale proceeds to the petitioner, plaintiff/decree-holder for the satisfaction of the decree and costs of and incidental to this application. In the circumstances no further details of the properties or the value thereof could be given; (e) The said persons as mentioned in prayer (a) of the petition be directed to pay the costs of and incidentals to this application; (f) Such further orders be passed and directions be given as may seem fit and proper to this Hon'ble Court. "
( 3 ) IT is to be pointed out that so far as the particulars of the immovable properties are concerned, the space provided for the same in the original Tabular Statement was left blank. Affidavits were filed by the parties and the matter was heard on part when an order was passed in terms of prayers (a) and (b) of Column 10 of the Tabular Statement. The partners were directed to file their affidavit disclosing their assets within three weeks. On 6th May 1985 the appellants filed an affidavit disclosing some of their assets. On 9th May 1985 this application for amendment of Tabular Statement was filed by the Bank. By such application for amendment, the following changes were sought to have been made in the Tabular Statement in respect of the particulars of immovable properties. On the face of that Tabular Statement the following particu
AI
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
