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Janki Sahu Trust Decree-Holder v. Ram Palat Judgment-Debtor .
Factual and Procedural Background
The Janki Sahu Trust obtained a money decree for Rs. 300 against Sheo Ghulam (deceased) on 31 May 1930 from the Civil Judge of Sultanpur (a Small Cause Court). The decree was transferred for execution to the Munsif (not vested with Small Cause Court powers). After three unsuccessful execution attempts, the fourth execution application was filed on 5 March 1942. The limitation period for execution expired on 31 May 1942.
The execution application initially sought attachment and sale of several grove plots (Nos. 248, 913, 919 and 964) and certain houses. Multiple objectors claimed some groves belonged to them; as a result grove No. 919 and portions of Nos. 248, 913 and 964 and some houses were released, and the remainder was ordered to be sold. Proceedings were transferred to the Collector for sale, during which defects were pointed out to the decree-holder and opportunities were allowed to rectify them. Nothing fruitful followed.
On 14 March 1944—nearly two years after limitation had expired—the decree-holder applied purportedly under Sections 151 and 153 (the record shows S. 153 was a mistake for S. 151) of the Civil Procedure Code (CPC) to amend the property particulars in the execution application, substituting a list of other grove numbers (Nos. 918, 920, 929, 983, 1185 and retaining No. 248). The sale officer returned this application to the Munsif; notice was ordered and the matter was fixed for hearing. The Munsif allowed the amendment in the absence of both parties (10 May). The judgment-debtor filed an appeal to the lower appellate Court (5 July) and lodged objections in the executing Court. The lower appellate Court held the amendment amounted to a fresh application seeking new properties and could not be allowed after the expiry of 12 years, and set aside the Munsif's order. The matter was referred to the Full Bench because of conflicting authorities in various High Courts on the legal question involved.
Legal Issues Presented
- Whether a Court may, under its inherent powers (Section 151 CPC), allow amendment of an execution application after the period of limitation has expired so as to substitute different properties for execution.
- Whether a second appeal lies against an order passed in execution proceedings arising out of a suit of the nature of small causes (i.e., whether Section 102 CPC bars a second appeal in such a case).
- Whether the amendment application fell to be treated as one under Order XXI, Rule 17 CPC (so as to have retrospective effect under sub‑rule (2)), or whether those provisions were inapplicable.
Arguments of the Parties
Decree-holder's Arguments
- The decree-holder (Janki Sahu Trust) sought to rely on the Court's inherent powers under Section 151 CPC to amend its execution application after defects were discovered in the property particulars; the application was described in the record as under S.151 (mistakenly in part as S.153).
- It was contended on behalf of the decree-holder that the order allowing amendment was an exercise of inherent powers and therefore not appealable to the lower appellate Court (i.e., that no appeal lay because the order was passed under Section 151 CPC).
The opinion does not contain a detailed account of specific arguments advanced by the judgment-debtor; it records that the judgment-debtor filed an appeal and objections and that objections were made by third parties to the attachment of certain groves.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Atwari v. Maiku, 31 All. 1 (1 I.C. 553) | Second appeal not entertainable in suits of the nature of small causes. | The Court relied on this decision to support the proposition that a second appeal is barred under Section 102 CPC in cases originating as small causes. |
| Maria Ursula v. Pana Navalaji & Co., A.I.R (15) 1928 Bom. 534 (53 Bom. 46) | Second appeal not entertainable in suits of the nature of small causes. | Also cited to reinforce that a second appeal against an order in execution proceedings arising from a small causes suit is not permissible. |
| Mathukrishna Raja v. Viswalinga, A.I.R (27) 1940 Mad. 893 (1940 M.W.N 547) | Where a list of properties is not given in the original application, the decree-holder is not deprived of the benefit of Order XXI, Rule 17(2). | The Court treated this decision as limited to the proposition that absence of a list in the original application does not remove the benefit of R.17(2); it did not govern the present facts where Rrs. 11–14 had been complied with. |
| Pratap Udai Nath v. Baraik Lal, A.I.R (34) 1947 Pat. 129 (225 I.C. 152) | Amendment for substitution (relating back) where judgment-debtor had died before presentation of execution application; amendment may relate back to the date of presentation. | The Court held this precedent to be inapposite to the present facts and therefore irrelevant to the dispute before it. |
Court's Reasoning and Analysis
The Full Bench began by addressing procedural points: it observed that because the underlying suit was of the nature of small causes (value below Rs. 503), a second appeal under Section 102 CPC would not lie. The Court rejected the decree-holder's contention that the order allowing amendment (purportedly under Section 151 CPC) was not appealable; the Court concluded that an order passed in execution proceedings that determines questions as to execution, discharge or satisfaction of a decree amounts to a decree within the meaning of Section 2(2) CPC and is therefore appealable (though a second appeal may still be barred by Section 102).
Because a second appeal was not permissible, the Full Bench proceeded by treating the matter as a revision under Section 115 CPC in order to consider whether the lower appellate Court was correct in holding that the amendment could not be allowed after the expiry of limitation.
On the merits the Court considered whether it should itself exercise inherent jurisdiction under Section 151 CPC to grant the amendment. The Court examined the factual matrix: the decree-holder had specified properties in the execution application many of which proved to belong to third parties and were released on objections; a mukhtar (agent) of the decree-holder had positively identified the attached properties on the spot and had endorsed the fard taliqa, asserting that he had pointed out the attached property. The execution application initially claimed a very large number of mango trees on groves Nos. 913 and 964 (90 and 58 respectively), whereas the later amendment purported to substitute four different grove numbers containing far fewer trees (totaling 36 on four plots).
The Court reasoned that, even if the decree-holder had been misled by revenue entries, the error would have been apparent when the mukhtar went to the spot, and the decree-holder should have taken prompt steps to correct the execution application. The Court found that the mukhtar's on-the-spot identification made the decree-holder responsible for the error; this conduct amounted either to gross negligence or to a deliberate act by the decree-holder's agent. The consequence was that the decree-holder had been guilty of laches: he delayed nearly two years before seeking amendment and did not promptly pursue correction after objections and releases were made.
Principles governing the exercise of inherent jurisdiction under Section 151 were applied: such jurisdiction is to prevent abuse of the process of the Court and is guided by equitable considerations. Equity aids the vigilant, not the indolent; where a party has been negligent or dilatory, courts are reluctant to exercise inherent powers in that party's favour. Allowing the decree-holder to add fresh properties after limitation had run would, in the Court's view, countenance an abuse of process and would prejudice the judgment-debtor and third parties who had acquired a valuable right by lapse of limitation.
The Court also analyzed the applicability of Order XXI, Rule 17 CPC. It concluded that the amendment provisions of R.17(2) operate only when defects envisaged by sub‑rule (1) exist or are uncovered. In the present case all requirements of Rules 11 to 14 had been complied with, and the execution application had been admitted under sub‑rule (4). The fact that the decree-holder had included property that had become non-transferable (denuded of trees) did not amount to a defect of the kind contemplated by R.17(1); therefore sub‑rules (1) and (2) did not apply so as to make the amendment relate back to the original presentation date. The Court distinguished authorities relied upon by the parties (notably Mathukrishna Raja and Pratap Udai Nath) and found them inapplicable or irrelevant to the specific circumstances of this case.
On balance, after considering the delay, the mukhtar's on‑the‑spot identification, the releases made to objectors and the equitable principles governing inherent jurisdiction, the Full Bench concluded that the decree-holder had not made out a case entitling it to relief under Section 151 CPC. The Court therefore declined to disturb the lower appellate Court's order.
Holding and Implications
HOLDING: The appeal is dismissed and the order of the lower appellate Court (which had set aside the Munsif's amendment order) is upheld. The Court ordered dismissal of the appeal with costs and the opinion records concurrence by the other judges on the Full Bench.
Implications: As a direct consequence, the decree-holder is not permitted to amend the execution application after the expiry of the period of limitation in the circumstances of this case; the order allowing amendment was properly set aside. The Court emphasized that inherent powers under Section 151 CPC are to be exercised sparingly and will not ordinarily be used to relieve a party who has slept upon or negligently pursued his rights. The opinion does not purport to establish a new general precedent beyond applying settled principles (equity favoring the vigilant, limits of R.21, R.17 and the scope of inherent jurisdiction) to the facts at hand; it confines its relief to the parties before the Court.
Ghulam Hasan, J.:— This execution of decree appeal has been referred to the Full Bench by Hon. M.H Kidwai, J., on the ground that there was a conflict of authority in the various High Courts in India upon the question of law arising in the case.
2. The facts are few and simple. Janki Sahu Trust obtained a simple money decree from the Civil Judge of Sultanpur exercising jurisdiction as a Small Cause Court against Sheo Ghulam deceased for Rs. 300 on 31st May 1930. The decree was transferred to the Munsif not tested with Small Cause Court powers for execution. Three unsuccessful applications for execution were made and we are concerned with the fourth application, which was the last, made on 5th March 1942. It is not denied that the limitation for execution of the decree expired on 31st May 1942. In the application above referred to four plots Nos. 248, 913, 919 and 964 described as groves were sought to be attached and sold in addition to certain houses belonging to the judgment-debtor, Sheo Ghulam died and is represented by his heir and legal representative, Ram Palat. It appears from the record that objections were filed by several persons to execution on the ground that the groves sought to be sold did not belong to the judgment-debtor but to the objectors. It would be unnecessary to refer to the matter in detail beyond saying that grove No. 919 was released from attachment, ¾th share in groves Nos. 248 and 913 and half share in grove No. 964 were also released in addition to some houses and the rest of the property was ordered to be sold. The decree was transferred to the Collector for sale of the property. Before the Collector certain defects in the application were pointed out to the decree-holder and he was given an opportunity to remove them. The proceedings before the Collector went on for some time without leading to any fruitful result. Ultimately the decree-holder on 14th March 1944, nearly two years after limitation had expired, filed an application purporting to be under Sections 151 and 153 of the CPC, stating that he had put the groves to sale in execution of his decree but it transpired from the statement of the patwari that the grove numbers against which execution was taken at did not contain any trees and the entries in the papers were wrong. He accordingly prayed that his application for execution be amended and gave the following grove numbers in place of the old. These are:
No. 918 5 mango trees No. 920 7 mango trees No. 929 6 mango trees No. 983 18 mango trees No. 1185 judgment-debtor's grove No. 248 judgment-debtor's grove
3. It appears from this that Nos. 913 and 964 were excluded but old No. 248 was retained and fresh numbers were added. The sale officer returned this application to the Munsif on the same day. A notice was ordered to issue on 18th March to the judgment-debtor and the case was fixed for 14th April. The decree-holder gave the duplicate of the application to the judgment-debtor under the orders of the Court and the case was ordered to come up for disposal on 6th May. The order-sheet does not show that any proceedings took place on this date, but on 10th May the Court allowed the amendment in the absence of both the parties. Against this order the judgment-debtor filed an appeal on 5th July. He also filed an objection on 6th July before the Munsif, which was fixed for 26th August Nothing further was done in the Court of the Munsif as the matter was pending in appeal. The Munsif observed in his order allowing amendment as follows:
“The parties were labouring under a common mistake as to the property in dispute. The mistake was discovered for the first time in the execution Court and hence this application for amendment of the property in dispute by substitution of other plots. I thick that the amendment can be allowed under Section 153 of the CPC”
4. It is agreed that S. 153 is a mistake for S. 151. The lower appellate Court in appeal held that the application for amendment of the execution application was a fresh application seeking to proceed against properties of the judgment-debtor other than those mentioned in the original application and could not be treated as one to remedy any defect under O. 21, R. 17 nor did the decree-holder invoke the aid of those provisions. In the opinion of the lower appellate Court as the application had been after the expiry of 12 years, the inherent powers of the Court could not be exercised in violation of the statutory provisions and the application for amendment was wrongly allowed. The lower appellate Court relied on certain decisions in support of its conclusion.
5. When the matter came up before our learned brother, judicial decisions for and against the view taken by the lower appellate Court were cited, whereupon the whole appeal was referred to the Full Bench.
6. At the outset it appeared to us that as the suit was of the nature of small causes and was below Rs. 503 in value, no second appeal lay under Section 102 of the CPC. This question was not argued before our learned brother and if it had been, perhaps the necessity for the reference to the Full Bench would not have arisen. There can be no doubt that a second appeal against an order passed in execution proceedings arising out of a suit of the nature of small causes is not entertainable, though one appeal against such an order is permissible. It would be sufficient to refer to Atwari v. Maiku*, 31 All. 1 : (1 I.C 553) and Maria Ursula v. Pana Navalaji & Co., A.I.R (15) 1928 Bom. 534 : (53 Bom. 46). On behalf of the decree-holder it was contended that no appeal lay to the lower appellate Court against the order of the Munsif on the ground that the order was passed under Section 151 of the CPC, and was not as such appealable. It is admitted that this point was not argued before the learned single Judge, but we have no doubt whatever that the order having been passed in execution proceedings was an order relating to the execution, discharge or satisfaction of the decree and was a decree within the meaning of that word under S. 2(2) of the Code. That definition itself includes “the determination of any question within S. 47.” Reference was made to notes 9 and 10 of S. 151 of Chitaley's Commentary on the Code of Civil Procedure. Note 9 itself says that “if an order amounts to a decree within the definition of S. 2(2) an appeal will lie under S. 96.” Note 10 merely says that “a revision lies from an order under the inherent jurisdiction of the Court and where such a jurisdiction has been exercised, it will not be ordinarily interfered with in revision” Counsel for the decree-holder was unable to cite any authority in support of the contention that the order passed in execution proceedings was not open to even one appeal because it had been passed under the inherent powers of the Court under S. 151 and contended that because a revision lies against such an order, an appeal is thereby impliedly excluded. This contention has no substance for the order being passed in the execution proceeding amounted to a decree and was appealable. A second appeal is, however, barred under the provisions of Section 102 of the CPC.
7. No second appeal being permissible we have allowed the matter to be treated as a revision under Section 115 of the CPC, particularly because the lower appellate Court proceeded on the ground that the Court had no jurisdiction to allow amendment after the expiry of the period of limitation. Had the lower appellate Court exercised its discretion on the merits of the case against the decree-holder, it is obvious that interference by the High Court with the exercise of discretion under Section 151 of the CPC, would not have been either possible or justified. This leads us to the question whether this is a fit and proper case in which this Court should exercise its inherent powers under S. 151 in favour of the decree-holder. After having heard counsel on the merits of the matter we are satisfied that no case has been made out for disturbing the order of the lower appellate Court.
8. It appears that in the application for execution the decree-holder stated property, most of which belonged to third persons, and it had therefore to be released in their favour on objections being filed by them. It is true that the decree-holder relied upon the revenue papers in specifying the property to be attached but when the Court official went to the spot to attach the said property, Debi Prasad, the mukhtar and pairokar of the decree-holder, identified it out and the attachment was made on 28th March 1942, under the express directions of the mukhtar. This is borne out by the endorsement of the mukhtar on the fard taliqa, the accuracy of which he verified on the express ground that he had pointed out the attached property on the spot. In the application for execution the decree-holder had mentioned 90 mango trees existing on grove No. 913 and 58 mango trees on grove No. 964 in addition to other trees. In the application for amendment he showed only 36 trees on four plots Nos. 918, 920, 929 and 983. Assuming that the decree-holder had been misled by the entries in the revenue papers, the error should have been apparent to him when the mukhtar went to the spot to identify the property to be attached. He could easily have seen that groves Nos. 913 and 964 did not contain 148 mango trees besides others and he should have taken the earliest step to have the application for execution amended, but he did nothing of the kind. On the other hand, he identified on the spot the existence of these trees upon the two grove plots. This action of the decree-holder's mukhtar, for which the decree-holder must bear the consequence was either due to gross negligence or was deliberate. In either case this action of the decree-holder does not entitle him to any indulgence at the hands of the Court. It is a matter of record that after the attachment was made objections were filed by several persons and a considerable portion of the property attached had to be released. The decree-holder took no steps to correct his application until nearly two year when the period had rim out. In exercising jurisdiction under its inherent powers the Court is influenced by the justice of the case in favour of the party who invokes its assistance. Where the party has been guilty of laches or has been negligent in prosecuting his remedy, a Court of law would be most reluctant to exercise its inherent powers in his favour. Such power under S. 151 has to be exercised to prevent the abuse of the process of Court. Equity aids the vigilent and not the indolent. To allow the decree-holder to amend the application by adding fresh property in the circumstances of the present case would be to countenance abuse of the process of Court and to hamper rather than promote justice. A valuable right has accrued in favour of the judgment-debtor by the lapse of limitation and the Court should require reasonable promptitude on the part of the decree-holder to pursue his remedy before inherent powers can be exercised in his favour after the expiry of the period of limitation. The circumstances disclosed in the present case are far from showing that the ends of justice demand any consideration being shown to the decree-holder.
9. It was contended before the lower appellate Court, and the contention was repeated before us, that the application for amendment was one under O. 21, R. 17 of the CPC. The application did not purport to be filed under the provisions of O. 21, R. 17 but only under the inherent powers of the Court. Apart from this those provisions have no application whatsoever to the present case. That rule merely lays down that after an application for the execution of the decree as required by R. 11(2) of O. 21 has been made, the Court is to ascertain whether the requirements of Rr. 11 to 14 have been complied with. If those requirements have not been complied with, the Court may either reject the application or may allow the defect to be remedied then and there or within a time to be fixed by it. It is only under sub-r. (2) of R. 17 where an application is amended under the provisions of sub-r. (1), that it shall be deemed to have been an application in accordance with law and presented on the date when it was first presented. The present is, however, not a case of that character. All the requirements of Rr. 11 to 14 had been complied with and nothing was left undone. The Court, therefore, admitted the application under sub-r. (4) of B. 17 and ordered execution of the decree. The application for execution was not wanting in any particulars and the fact that the decree-holder chose to include property in the execution application which was not transferable has no bearing whatever on the question whether requirements of Rr. 11 to 14 had been complied with. The plots did exist [in?] fact but they had ceased to fee groves as they were denuded of trees and had, therefore, become non-transferable. Sub-rule (2) of R. 17 applied only when any defects as contemplated under sub-r. (1) exist or are brought to light. Where no defects exist, as in the present case, no question of amendment arises and the provisions of sub-rr. (1) and (2) do not come into operation. In such a case the application is admitted and action for execution taken under sub-r. (4).
10. The case of Mathukrishna Raja v. Viswalinga, A.I.R (27) 1940 Mad. 893 : (1940 M.W.N 547) merely says that where a list of the properties is not given in the original application, at does not deprive the decree-holder of the benefit of O. 21, R. 17(2). The case of Pratap Udai Nath v. Baraik Lal, A.I.R (34) 1947 Pat. 129 : (225 I.C 152) is entirely irrelevant. There the decree-holder had, through ignorance of the death of one of several judgment-debtors, applied for execution against all. When he came to know of the death of one of the judgment, debtors, he promptly put in an application for substitution of the heirs of the deceased judgment-debtor in his place. The executing Court found as a fact that the judgment-debtor had died after the passing of the decree but before the execution application was filed. The amendment, though refused by the executing Court on the ground that it was filed beyond three years of the date of the decree, was allowed in appeal and was held to relate back to the date of the presentation of the application for execution. It was held that the judgment-debtor having died before the application for execution was filed, it could not be said that the execution proceedings had abated against him.
11. As a result of the foregoing discussion, it is apparent that this appeal has no force. The appeal is accordingly dismissed with costs.
Kidwai, J.:— I concur. Chandiramani, J.:— I concur.
V.S.B
12. Appeal dismissed.
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