1950 Supreme(P&H) 72

HIGH COURT OF PUNJAB & HARYANA
KAPUR, J.
D.H.M. Framji
Versus
Eastern Union Bank
Exn. First. Appeal No. 102 of 1949
Decided On : 12-10-1950

A power-of-attorney must be strictly construed and is construed as giving only such authority as it confers expressly or by necessary implication.

Headnote:

EXECUTION OF DECREE - PRESENTATION OF APPLICATION - POWER-OF-ATTORNEY - CONSTRUCTION - STRICT PURSUIT - RECITALS CONTROLLING OPERATIVE PART - PRESENTATION BY POST - NOT PROPER PRESENTATION - APPEARANCE ON DATE FIXED BY COURT - NOT PROPER PRESENTATION - LIMITATION - STEP-IN-AID - APPLICATION TO COURT NECESSARY - PARTICULARS REQUIRED UNDER O. 21, R. 11, C. P. C. - NON-COMPLIANCE - REJECTION OF APPLICATION - AMENDMENT - NOT PRAYED FOR - SUBSTANTIAL COMPLIANCE - NOT POSSIBLE - APPLICATION BARRED BY TIME.

Fact of the Case:

A decree was passed against the judgment-debtors in the Court of the Subordinate Judge, Chittagong, now in East Bengal. The decree was transferred for execution to the District Judge, Patna, who ordered that the decree could be executed in Patna, Chittagong, and Simla simultaneously. On 27-9-1943, the decree-holder made an application to the Sub-Judge executing the decree praying for the issue of a certificate of non-satisfaction to the District Court, Simla, and on 18-11-1943, this certificate was issued by the learned Judge of the Chittagong Court. On 16-9-1947, the decree-holder made another application for sending a certificate of non-satisfaction of the decree to the District Judge at Simla, and on 12-11-1946, this certificate was ordered to be sent to the District Judge at Simla. An application for execution of the decree along with the transfer certificate from the Chittagong Court was sent by post to the District Judge, Ambala, by Mr. Amar Chand Advocate purporting to act on behalf of the decree-holder and this was received by the District Judge on 8-12-1946. The application is dated 20-11-1946 and is accompanied by two powers-of-attorney, one in Bengali and the other in English. Both bear the seal of the Eastern Union Bank Ltd., and are signed by one Rabindra Nath Basu claiming to be the Agent of the Dacca Branch. This was sent for execution to the Senior Subordinate Judge, Simla, by post by the learned District Judge with the order that the decree-holder should appear before the Senior Subordinate Judge, Simla, on 20-12-1946. On 19-4-1947, the judgment-debtor Dinshaw Framjee through his Pleader Mr. Kartar Chand filed an application under Order 47, Rule 1, and Section 151, Civil Procedure Code praying for time being given for making objections against the execution application and for cancellation of the attachment which had been ordered by the learned Judge. This application was dismissed on 2-5-1947 and an appeal was brought to this Court which was allowed by Bhandari J., on 11-7-1948 and the case was remanded for objections being filed. On 31-7-1948, objections were filed on behalf of the judgment-debtors 1 to 3 (Framjees) in which it was pleaded that there was no proper presentation of the application to the District Judge and therefore the execution could not be proceeded with, that the power-of-attorney given to the Advocate Mr. Amar Chand had not been given by a person properly authorized, that it was not properly signed and verified, that the execution application did not give the particulars required under Order 21, Rule 11, Civil Procedure Code and that the execution application was barred by time. These objections were contradicted and contested by the decree-holder. The learned Judge framed the following issues: 1. Whether the execution application was not properly presented? 2. Whether the execution application was signed and verified by a properly authorized person? 3. Is the execution application within time and the judgment-debtor cannot raise this objection in this Court? 4. Whether the judgment-debtor cannot raise the objection that the decree could not be transferred to this Court until the result of the execution application at Patna had been certified by the Chittagong Court and provisions of Section 39 were not complied with? 5. Whether the execution application does not comply with the provisions of Order 21, Rule 11? 6. Whether the power-of-attorney given by the decree-holder in favor of L. Amar Chand Advocate was not validly executed and what is its effect? The learned Subordinate Judge held (1) that the execution application was properly presented; (2) that the omission of certain particulars did not make the application so defective as to be regarded as being no application at all and that the person who gave the power-of-attorney to the Advocate was properly authorized and therefore he decided both issues 2 and 5 in favor of the decree-holder; and (3) that simultaneous execution applications could be proceeded with and that the present execution application was within time. He therefore overruled the objections of the judgment-debtors and ordered the attachment of the property of the judgment-debtors to be proceeded with. Against this order the judgment-debtors have come up in appeal to this Court.

Finding of the Court:

The Court held that there was no proper authority to Mr. Amar Chand to execute the decree and there was no proper presentation, as required under the law, of the application for execution. The Court also held that the power-of-attorney given to Mr. Amar Chand Advocate was not validly executed and that the execution application was barred by time.

Issues: 1. Whether the execution application was not properly presented? 2. Whether the execution application was signed and verified by a properly authorized person? 3. Is the execution application within time and the judgment-debtor cannot raise this objection in this Court? 4. Whether the judgment-debtor cannot raise the objection that the decree could not be transferred to this Court until the result of the execution application at Patna had been certified by the Chittagong Court and provisions of Section 39 were not complied with? 5. Whether the execution application does not comply with the provisions of Order 21, Rule 11? 6. Whether the power-of-attorney given by the decree-holder in favor of L. Amar Chand Advocate was not validly executed and what is its effect?

Ratio Decidendi: 1. A power-of-attorney must be strictly construed and is construed as giving only such authority as it confers expressly or by necessary implication. 2. The recitals in a power-of-attorney control the operative part. 3. An application for execution of a decree must be presented to the Court in person or by a duly authorized agent or by an Advocate of the High Court. It cannot be sent to the Registrar by post. 4. The mere appearance of the decree-holder on a date fixed by the Court for hearing of the execution application does not amount to proper presentation of the application. 5. An application for execution of a decree is barred by time if it is filed more than three years after the date of the last step-in-aid in execution. 6. The particulars required to be given in an application for execution of a decree under Order 21, Rule 11, Civil Procedure Code are mandatory and non-compliance with them may lead to rejection of the application.

Final Decision: The appeal was allowed and the order of the lower court was set aside. The execution application was dismissed and the parties were left to bear their own costs.