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Dolagobinda Sahu Dec... v. Chakradhar Mohapatra...
Structured Summary of the Opinion (Misra, J.; Panigrahi C.J. concurring)
Factual and Procedural Background
The present application in revision was filed by the decree-holder against an order of the learned Subordinate Judge of Cuttack dated 8-10-1953 which refused the decree-holder's request to amend the execution petition by including certain properties in the list of properties originally appended to that petition. The underlying decree was passed in Money Suit No. 41 of 1939 on 11-11-1940. The amendment application was presented on the last day of the 12-year period of limitation prescribed by Section 48 of the Code of Civil Procedure (CPC). The judgment-debtors resisted the application chiefly on the ground that Order 21, Rule 17 (O.21, R.17) CPC limits amendments to formal matters and does not permit substitution or addition of new properties to be attached and sold in execution.
Legal Issues Presented
- Whether, and to what extent, a court may allow a decree-holder to amend an already-registered execution petition by adding or substituting properties to be attached and sold in execution of the decree (i.e., whether such amendments are permissible under or beyond O.21, R.17 CPC).
- Whether an amendment to substitute or add properties in an execution petition can be allowed after the period of limitation under Section 48 CPC has expired.
Arguments of the Parties
Decree-holder / Appellant's Arguments
- The learned counsel for the appellant contended that the Subordinate Judge's view was incorrect and that, in appropriate cases, the Court has general powers to amend the execution petition by substituting or adding new properties in the list appended to the original application.
- The appellant relied upon a number of High Court decisions in support of the contention that such amendments can be allowed while execution proceedings are pending and before the decree is barred by limitation.
Judgment-debtors' Arguments (Respondents)
- The judgment-debtors contended that O.21, R.17 CPC contemplates only formal amendments to execution petitions where requirements of Rrs.11 to 14 of O.21 are not complied with, and does not empower the Court to permit substantive amendments such as substituting new properties to be attached and sold in execution.
Lower Court's Decision (as described in the opinion)
- The learned Subordinate Judge refused the amendment. He held that the application was not for a formal amendment under O.21, R.17 and was not a fit case for allowing the Court's general power to permit amendments. He also relied on the fact that the application had been filed on the last day of the 12-year limitation period and that it had not been presented as a fresh execution application.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court in This Opinion |
|---|---|---|
| Rai Bahadur Ram Sumran Prasad v. Ram Bahadur, AIR 1923 Pat 224 | Recognised legality of concurrent execution and held that a Court can allow amendment of an execution application pending before it by adding other properties to the list sought to be attached; R.17 does not prohibit amendment after registration. | The court agreed with and followed the observations in this Patna decision to support the proposition that amendment by addition of properties is permissible while execution is pending. |
| Gnanendra Kumar Rai v. Shayama Sunder Jen, AIR 1918 Cal 73 | Interpreted as holding that O.21, R.17 does not prevent amendment after registration (cited in the Patna case above). | Referred to (via the Patna case) as authority indicating that R.17 does not bar amendment once the petition is filed. |
| Brajasunder Das v. Radha Prasad Bhagat, AIR 1932 Pat 306 | Held that a Court is competent, at any time before execution proceedings terminate and before the decree becomes barred by limitation, to allow the decree-holder pending execution to amend the application by adding other properties to the list sought to be attached. | The court followed this Patna decision as supporting authority for permitting amendment by addition of properties before the expiry of the period of limitation. |
| Gajanand Sha v. Dayanand Thakur, AIR 1943 Pat 127 | Held that a decree-holder cannot be allowed, after limitation has expired, to execute a decree against a property not mentioned in the original execution application by substituting it in the petition (i.e., no amendment to evade limitation). | The court distinguished this decision on its facts: it was applied to show that amendments cannot be allowed after the period of limitation has expired, whereas amendments are permissible while the period of limitation still runs. |
| Deonarain Singh v. Bibi Khatoon, AIR 1949 Pat 401 | Reiterated that while the decree is still alive and execution is not closed, the court is competent to allow the decree-holder to amend the execution petition by addition of other properties. | The court relied on this later Patna decision as further support for permitting the amendment while the decree remained within the limitation period. |
| Nourangilal Marwari v. Sm. Charubala Dasi, AIR 1932 Cal 766 | Held that O.21, R.17's preliminary scrutiny requirement does not mean that once an application is on file it can never be amended; the executing court has power (and inherent power) to allow amendments and procedure should be less formal in execution matters. | The court cited Rankin C.J.'s observations in this Calcutta decision to support the proposition that courts have inherent/general power to permit amendments to execution petitions. |
| Mahomedbhai Samuddin v. M.A Dawoodhbhai & Co., AIR 1938 Bom 405 | Held that if an execution petition lacks particulars, the Court may allow amendment to describe the property; O.21, R.17 requires scrutiny but does not preclude allowing amendment; the Court has general power to allow amendments. | Referred to as authority that even when R.17 requires compliance, the Court can allow amendments in a proper case and has general powers to cure defects. |
| Shekendar Ali Meah v. Abdul Gafur, AIR 1942 Cal 306 | Established that where an execution application is in law and registered, the Court may in its discretion allow the decree-holder to alter the list of properties provided such amendment does not substantially alter the character of the execution proceedings. | The court relied on this Calcutta decision to support the discretionary power to permit amendments, subject to the limitation that the amendment should not substantially change the nature of the execution proceedings. |
Court's Reasoning and Analysis
The judgment begins by setting out the statutory and procedural framework: Order 21 Rules 11 to 14 specify the details required in an application for execution (including the mode of execution and, where movable or immovable property is to be attached, inventories or descriptions sufficient for identification). Order 21 Rule 17 requires the Court to ascertain compliance with these requirements when an execution petition is presented.
The judgment addresses the respondents' contention that O.21, R.17 confines permissible amendments to formal matters only and precludes substantive changes such as substituting new properties. The Subordinate Judge had applied that contention and refused the amendment, treating the present application as non-formal and noting its filing on the last day of the 12-year limitation period.
The appellate court examined authorities from various High Courts. It accepted and followed earlier Patna and Calcutta decisions which held that:
- The executing Court has power, apart from the express provision in O.21, R.17, to permit amendments to an execution petition (including addition of properties) while execution proceedings are pending and the decree is not barred by limitation.
- O.21, R.17's requirement of preliminary scrutiny does not mean that no amendment can ever be allowed; courts possess inherent or general powers to permit amendments in appropriate cases.
- However, amendments that would amount to evading the law of limitation cannot be allowed once the period of limitation has expired — decisions permitting amendment are distinguishable where the application for amendment was made after limitation had run.
- The discretion to permit amendment is subject to the condition that it should not substantially alter the character of the execution proceedings.
Applying these principles to the present facts, the Court concluded that the amendment application was filed before the expiry of the 12-year limitation period under Section 48 CPC and therefore, in principle, could be allowed. The Court found the Subordinate Judge's reliance on O.21, R.17 and on the late filing date to be insufficient to deny the amendment where the limitation period had not yet expired. On the basis of the authorities and reasoning summarized above, the Court exercised its power to allow the amendment.
Holding and Implications
Holding: The Court's final decision was to allow the appeal. The opinion directs that the order of the learned Subordinate Judge be set aside and that the amendment to the execution petition should be allowed.
Direct Effect on the Parties:
- The decree-holder's application to amend the execution petition by including the additional properties is permitted.
- The Subordinate Judge's order dated 8-10-1953 refusing the amendment is set aside.
- Because the opposite parties were not represented before this Court, there is no order as to costs.
Broader Implications: The Court reaffirmed existing lines of authority that permit executing Courts to allow amendments to execution petitions by addition or substitution of properties while the decree is still enforceable and within the period of limitation; it also reiterated that amendments cannot be used to evade the law of limitation. The opinion does not purport to lay down any novel principle beyond the consolidation and application of the cited authorities.
Disposition: Appeal allowed. (Misra, J.; Panigrahi C.J. concurred.)
Misra, J.:— This application in revision has been filed by the decree-holder against an order of the learned Subordinate Judge of Cuttack, dated 8-10-1953, refusing the decree-holder's prayer to amend the execution petition by including certain properties in the list of properties originally appended to the execution petition. The decree in question was passed in Money Suit No. 41 of 1939 on 11-11-40, and the application for amendment was presented on the last day of the period of 12 years prescribed by Section 48 of the CPC. The main ground on which the application was resisted by the judgment-debtors was that it was not maintainable in view of the provisions of O. 21, R. 17 of the CPC. Their contention was that O. 21, R. 17 of the CPC provides for an amendment of the execution petition when the requirements of Rr. 11 to 14 of O. 21 are not complied with. In other words they contended that O. 21, R. 17 of the CPC deals with formal amendments, and does not empower the Court to amend the execution petition on any substantial point, as for example by substituting new properties sought to be attached and sold in execution.
2. Order 21, R. 11 prescribes the details which are to be furnished by the decree-holder in an application for execution of a decree. Clause (j) of sub-r. (2) of R. 11 of O. 21 requires the decree-holder to state
“the mode in which the assistance…… is required, whether (i) by the delivery of any property specifically decreed; (ii) by the attachment and sale, or by the sale without attachment, of any property; (iii) by the arrest and detention in prison of any person; (iv) by the appointment of a receiver; (v) otherwise, as the nature of the relief granted may require.”
3. Order 21, R. 12 requires that
“Where an application is made for the attachment of any movable property belonging to a judgment-debtor, but not in his possession, the decree-holder shall annex to the application an inventory of the property to be attached, containing a reasonably accurate description of the same.”
4. Rule 13 of O. 21 provides that:
“Where an application is made for the attachment of any immovable property belonging to a judgment-debtor, it shall contain at the foot.
(a) a description of such property sufficient to identify the same and, in case such property can be identified by boundaries or numbers in a record of settlement or survey, a specification of such boundaries or numbers; and
(b) a specification of the judgment-debtor's share or interest in such property to the best of the belief of the applicant, and so far as he has been able to ascertain the same.”
5. Order 21, R. 14 authorises the Court to call upon the decree-holder to supply certified extracts from the registers of the Colleetorate showing the names of proprietors of any land which is sought to be attached in execution of the decree. The judgment-debtors contend that if there be any defect in compliance with the requirements of Rr. 11 to 14 of O. 21 in presenting the application for execution of a decree, the decree-holder may, with the permission of the Court, amend the execution petition to remove such formal defects, but it does not entitle the decree-holder to amend the execution petition by substituting new properties to be attached and sold in execution of the decree.
6. The learned Subordinate Judge has given effect to this objection, as in his opinion the application filed by the decree-holder was not for a formal amendment which could be allowed under O. 21, R. 17 of the CPC and it was, according to him, not a fit case in which it was necessary for the Court to exercise the general powers to allow amendments to remedy defects, the application having been filed on the last day of the period of 12 years from the date of the decree, and it not having been presented in the form of a fresh application for execution of the decree.
7. The learned counsel for the appellant contends that the view taken by the learned Subordinate Judge is incorrect, and that in appropriate cases the Court has general powers to amend the execution petition by substituting new properties in the list of properties appended to the original application. He has relied upon a number of decisions of various High Courts in support of his contention.
8. The first case referred to by him is the case of — ‘Rai Bahadur Ram Sumran Prasad v. Ram Bahadur*’, AIR 1923 Pat 224 (A). In that case an application for execution was filed on the 20th May of 1915, and in course of that execution certain properties were sold, but the sale-price did not satisfy the entire decree. Therefore on 11-7-1922, the decree-holder filed a petition before the executing court stating that certain amount was in deposit in another Court to the credit of the judgment-debtors, and he prayed that sum ought to be attached and paid to the decree-holder in satisfaction of his debt. The Subordinate Judge rejected the petition on the ground that as one execution case in respect of the same decree was still pending, no fresh execution petition in respect of the same decree could be entertained. Against this order the decree-holder moved the High Court in revision. Their Lordships Mullick and Kulwant Sahay, JJ., who heard the revision, held that the view of the Subordinate Judge was wholly incorrect, and that the legality of concurrent execution had always been recognised in the Codes of Civil Procedure of 1859, 1877 and 1882, though in practice it was not generally carried out. After referring to the various authorities on the point, their Lordships observed as follows:
“If, then, it is open to the decree-holder to file a fresh application, I see no reason why the Court cannot allow the amendment of the application already filed, while the execution case is still pending, by the addition of other properties to the list of properties sought to be attached. It is contended that R. 17 of O. 21 contemplates that there can be no amendment after the execution case has been registered, but, in my opinion, there is no force in this contention and it has been so held in — ‘Gnanendra Kumar Rai v. Shayama Sunder Jen’, AIR 1918 Cal 73 (B).”
9. With great respect we entirely agree with the observations quoted above. The same question came to be considered in Brajasunder Das v. Radha Prasad Bhagat*’, AIR 1932 Pat 306 (C). Fazl Ali, J. (as his Lordship then was) who delivered the judgment held that a Court is competent at any time before execution proceedings terminated and before the decree became barred by limitation, to allow a decree-holder whose application for execution of his decree was pending to amend the application by the addition of other properties to the list of properties sought to be attached; and the earlier Patna case (AIR 1923 Pat 224 (A)) was followed.
10. The learned Subordinate Judge has to a great extent placed reliance on a later decision of Patna High Court reported in — ‘Gajanand Sha v. Dayanand Thakur’, AIR 1943 Pat 127 (D), wherein it was held that a decree-holder cannot be allowed, after the period of limitation to execute his decree against a property not mentioned in the execution application when originally presented by allowing him to substitute it in the execution petition. It is to be noticed that the judgment in this case was also delivered by Fazl Ali J. The facts in this case were entirely different, for, the application for the amendment by substitution of a new property was made after the period of limitation was over. In such circumstances no amendment can be allowed, for it would amount to evade the law of limitation but in cases where the period of limitation has not expired, there is no reason, as Fazl Ali J. himself had pointed out in the earlier case, why the decree-holder should not be permitted to amend the execution petition by substitution of a new property. If it is open to the decree-holder to file a fresh petition, it stands to reason that the prayer for amendment should be allowed so as to relieve the parties of the necessity for fighting out simultaneous executions.
11. The view that such an amendment can be allowed has been again reiterated in a comparatively recent decision of the Patna High Court in — ‘Deonarain Singh v. Bibi Khatoon’, AIR 1949 Pat 401 (E), where it has been pointed out that as long as the decree is still alive and the execution is not closed, the court is competent to allow the decree-holder to amend the execution petition by addition of other properties. Learned counsel for the appellant has also relied on a decision of the Calcutta High Court in the case of — ‘Nourangilal Marwari v. Sm. Charubala Dasi’, AIR 1932 Cal 766 (F). In that case in the original application for execution, the decree-holder had made a statement that he had been entitled to the properties by succession. Later on, he filed a petition for amendment by which he wanted to correct the earlier statement by saying that he had become entitled to them by survivorship. The objection was that as this amendment was not covered by the express terms of O. 21, R. 17 of the CPC it could not be allowed. Rankin C.J, who delivered the judgment examined the provisions of O. 21, R. 17 and observed as follows:
“Then it goes on to say that when the application is admitted a proper note is to be entered in the register and then the Court may order execution. Now, because the rule requires a preliminary scrutiny of certain formalities before the petition can get upon the file it is actually argued that means that after it has got upon the file nobody can ever get his petition amended even with the leave of the Court a thing which is almost ludicrous as an argument.”
12. His Lordship further said:
“Under the Code procedure is intended to be less rather than more formal in the execution of a decree than in the case of the hearing of a suit and the executing Court need not have found difficulty in allowing him to amend his petition.”
13. It is clear from the observations of Sir George Rankin C.J that apart from the provisions of O. 21, R. 17 the Court has inherent power to amend the execution petition provided of course on the date of the amendment, the decree is still alive, and not barred by limitation.
14. The learned Subordinate Judge has referred to a decision in — ‘Mahomedbhai Samuddin v. M.A Dawoodhbhai & Co.’, AIR 1938 Bom 405 (G). In that case the original execution petition did not contain the particulars of the property which was sought to be sold. Later on leave was given by the Judge in Chambers to amend the application by describing the property sought to be attached. Against this order of amendment there was an appeal, and it was held that in such circumstances the Court could allow the amendment. Their Lordships pointed out that under O. 21, R. 17, the Court must ascertain that an execution petition complies with all the necessary requirements, but it was open to the Court at any time to allow an amendment in a proper case in order to cure any defect in the execution petition. Their Lordships further pointed out that even apart from this power under R. 17 the Court can in its general powers allow such amendments.
15. I may also refer to a later decision of the Calcutta High Court in — ‘Shekendar Ali Meah v. Abdul Gafur’, AIR 1942 Cal 306 (H), where it has been held that where an application for execution is in accordance with law and has been duly registered, the Court has discretion to allow the decree-holder to after the list of properties, provided such amendment has not the effect of substantially altering the character of the execution proceedings.
16. On a review of the authorities referred to above, we are of opinion that the Court has power, apart from the provisions of O. 21, R. 17 of the CPC to amend an execution petition by addition of fresh properties to the list of properties appended to the original execution petition provided the petition for amendment is filed before the expiry of the period of the 12-year limitation prescribed by Section 48 of the CPC. For the reasons stated above, we allow the 1 appeal and set aside the order of the learned Sub-ordinate Judge and direct that the amendment should be allowed. As the opposite parties are not represented in this Court, there would be no order as to costs.
Panigrahi, C.J:— I agree.
K.S.B
17. Appeal allowed.
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