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Vohra Mahomedbhai Samsuddin Jivaji Raja ( And Petitioner) v. M.A Dawoodbhai And Co., A Item (S)
Concise Analytical Summary of the Opinion
Factual and Procedural Background
This appeal arises from a decision of Mr. Justice Engineer concerning a short question in execution procedure. On 11 August 1932 the respondents obtained judgment against the appellant and two others in the Court of the First Class Subordinate Judge at Ahmedabad. The decree was transferred to the High Court for execution on 25 July 1934. On 21 April 1937 the respondents applied to execute the decree under Order XXI, rule 11 of the Code of Civil Procedure. The application was defective because it did not specify the property to be attached as required by Order XXI, rule 13; Column J of the application only stated generally: "By attachment under O. XXI, r. 54, of the Code of Civil Procedure, and issuing notice under O. XXI, r. 22 of the said Code".
In August 1937 the matter was before the learned Judge in Chambers, and leave was given to amend the application by describing the property to be attached. The appellant appealed, contending that the learned Judge should not have granted that leave.
Attorneys for appellants: Messrs Wadia, Ghandy & Co. Attorneys for respondents: Messrs Ghulamali Noorani & Co.
Legal Issues Presented
- Whether Order XXI, rule 17 authorises the Court to permit amendment of a defective application for execution at the time of the hearing, including after the application has been received and entered on the register.
- Whether the Court may allow such an amendment under its general jurisdiction where, at the time leave to amend is sought, the period of limitation under Article 182 of the Indian Limitation Act has expired.
- Whether an execution application that fails to describe the specific property to be attached is a nullity (as contended by the appellant) or may be cured by amendment giving particulars of the property referred to generally in the original application.
Arguments of the Parties
Appellant's Arguments
- The learned Judge purported to grant leave to amend under Order XXI, rule 17, but rule 17 is not applicable so as to permit amendment at the time when leave was granted.
- The learned Judge should not have granted leave to amend under the Court's general jurisdiction because, by the time leave was sought (August 1937), the period of limitation under Article 182 had run against the applicant.
- It was contended (by Mr. Vachha) that the original application was a mere nullity for not describing the property in detail.
Respondents' Arguments
The opinion does not contain a detailed account of the respondents' legal arguments beyond the fact that they applied for execution and sought leave to amend the defective application.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Asgar Ali v. Troilokya Nath Ghose (Full Bench, Calcutta) | The view that Order XXI, r.17 applies only when the application is first made and is being admitted/entered; after admission/registration the power under r.17 to allow amendment ends. | Noted as taking a strict view; the court reviewed this authority critically and concluded that, read with sub-rules (3) and (4), r.17 permits amendments up to and including the hearing. The Asgar Ali position was discussed at length and ultimately disagreed with by the court in this opinion. |
| Hayatunnessa Chowdhurani v. Achia Khatun (Calcutta High Court) | Followed the Asgar Ali full-bench view (i.e., restrictive approach to r.17). | Recorded as a following authority for the strict view; cited as part of the conflicting authorities that the court examined before reaching its own conclusion. |
| Gnanendra Kumar Roy Choudry v. Rishendra Kumar Roy Choudry | A contrary view to Asgar Ali (i.e., taking a less strict approach to amendment under r.17). | Noted as representing a different view among the authorities; the presence of conflicting authorities was a reason for the court to construe r.17 carefully. |
| Jagannath Das v. Chamu Raghunath Khuntia (Patna High Court) | Followed the Asgar Ali (strict) view. | Noted among the authorities that supported the restrictive construction; the court treated it as part of the divided authorities on the point. |
| Sheogobind Ram v. Musammat Kishunbasi Kuer | Reached a different conclusion from Jagannath Das despite being by the same judge who delivered Jagannath Das. | Recorded as an authority showing inconsistency in judicial decisions; used to demonstrate that the authorities on r.17 were not uniform. |
| Vemuri Pitchayya v. Raja Yarlagadda Ankineedu (Madras Court) | Disagreed with the Asgar Ali strict view. | Noted as an authority reaching the opposite conclusion to Asgar Ali; relied on to show that a less restrictive construction had been adopted elsewhere. |
| Sankaran Nair v. Ambum | Appears to agree with the Asgar Ali strict view. | Recorded as an authority consistent with the restrictive approach; part of the survey of conflicting decisions. |
| Baijnath Ramchander v. Binjraj Joowarmal | Referenced by B.J. Wadia J. in relation to the interpretation of O. XXI, r.17 and the Calcutta Full Bench decision; criticism of a strict reading. | Used by B.J. Wadia J. to support the view that the Calcutta Full Bench had taken a very strict approach which need not be followed; assisted in concluding that r.17 should be read with sub-rules (3) and (4) to permit judicial consideration after registration. |
Court's Reasoning and Analysis
The opinion contains parallel reasons given by Beaumont, C.J., and B.J. Wadia, J., both concluding that the learned Judge was correct to allow the amendment. Their analyses proceeded along the following lines:
Beaumont, C.J. — Step-by-step analysis
- Started from the conflict in authorities over the scope of Order XXI, rule 17 (sub-rule (1)), where a full bench of the Calcutta High Court (Asgar Ali) had held that the rule's power to permit amendment ended once the application was admitted and entered on the register.
- Considered sub-rules (2), (3) and (4) of r.17 together rather than isolating sub-r. (1). He observed:
- Sub-r. (2) merely directs that an amendment shall relate back to the presentation of the application.
- Sub-r. (3) requires every amendment made under the rule to be signed or initialled by the Judge.
- Sub-r. (4) mandates that on admission the Court shall enter a note of the application and, subject to ensuing provisions, order execution according to the nature of the application.
- Reasoned that sub-r. (4) contemplates a mandatory ministerial act (entry in the register) and a judicial act (ordering execution). The judicial act could not be performed in cases where the application remained defective unless the amendment were made at the time the Court considered ordering execution.
- Observed that sub-r. (3)'s requirement that the Judge sign or initial every amendment implies the Judge must be able to sign amendments made at the hearing; the Judge could not be expected to initial amendments handled solely by office staff prior to entry on the file.
- Concluded that, read as a whole, r.17 permits the Court to allow amendments up to and including the hearing; therefore the learned Judge was right to make the amendment under r.17.
- Additionally, Beaumont C.J. reasoned that even if r.17 did not permit the amendment in this case, the Court's general jurisdiction to allow amendments supported the order: the original application referred generally to attachment of immovable property (r.54) and the amendment simply supplied particulars of property already referred to in general terms; the application was not a mere nullity.
- Noted that sub-r. (2) makes clear that limitation (expiration of the three-year period under Art.182) is irrelevant if amendment is made under r.17 where applicable.
- Expressed no opinion on whether giving leave under Order XXI, r.22 is a step-in-execution.
B. J. Wadia, J. — Step-by-step analysis
- Concurred with the result and provided complementary reasoning. He acknowledged that a narrow reading of r.17(1) might appear to confine its operation to the time before admission/registration, but emphasized the need to read r.17(1) with sub-rules (3) and (4).
- Explained that admission and registration of the application is typically a ministerial act delegated to office staff, but the Court must retain judicial power to consider whether defects should be remedied even after registration, otherwise a judge could be forced to order execution on an application incapable of execution.
- Held that sub-r. (3) (signature/initialling by the Judge) contemplates judicial amendments at the hearing; thus the executing Court has discretion to allow necessary amendments if the requirements of Order XXI, rr.11–14 have not been substantially complied with.
- Addressed the limitation point: under Article 182 of the Indian Limitation Act the three-year period had expired in July 1937 and the application to amend was made in August 1937. He noted the respondents had caused a notice under Order XXI, r.22 to be issued on 23 April 1937, but observed it was doubtful whether that notice could be treated as a valid step-in-aid of execution if the principal application was defective. He did not decide that point.
- Held that, even after expiry of the limitation period, the Court under r.17 has discretion to remedy defects when first brought to its notice provided the delay is not unreasonable and the application is bona fide.
- Also noted that, independently of r.17, the Court's general jurisdiction permits amendment, and on that ground the learned Judge was right to allow amendment.
Holding and Implications
DISMISSED WITH COSTS.
Direct effect on the parties: the appeal was dismissed and the High Court's order permitting the execution-application to be amended (by describing the property sought to be attached) was upheld; costs were awarded against the appellant.
Implications noted by the Court: the majority reading of the rule in this opinion is that Order XXI, r.17, when read with its sub-rules (notably (3) and (4)), permits the Court to allow amendments up to and including the hearing; alternatively, the Court's general jurisdiction to allow amendments supports such relief. The opinion expressly does not decide or express a view on whether granting leave under Order XXI, r.22 constitutes a step-in-execution under the Limitation Act.
Beaumont, C.J:—
This is an appeal from a decision of Mr. Justice Engineer, which raises a short question in execution. On August 11, 1932, judgment was obtained by the present respondents against the appellant and two others, in the Court of the First Class Subordinate Judge at Ahmedabad, and on July 25, 1934, that decree was transferred to this High Court for execution. On April 21, 1937, an application was made by the respondents to execute the decree under O. XXI, r. 11. But the application was defective in that it did not specify the property which was to be attached, as it should have done under O. XXI, r. 13. All that appears in column J, the heading of which is, “The mode in which the assistance of the Court is required”, are the words. “By attachment under O. XXI, r. 54, of the Code of Civil Procedure, and issuing notice under O. XXI, r. 22 of the said Code”. With nothing more to go upon it would have been impossible for the Court to execute the decree.
The matter came before the learned Judge in Chambers in August, 1937, and he thereupon gave leave to amend the application by describing the property sought to be attached. In this appeal it is argued that the learned Judge ought not to have given that leave. It is said that he purported to give the leave under the provisions of O. XXI, r. 17, which is not applicable, and that he ought not to have given leave to amend under the general jurisdiction because time had run against the applicant when the leave was asked for.
The question whether r. 17 of O. XXI authorises the Court to amend an application for execution at the time of the hearing has given rise to Considerable difference of judicial opinion in India. The rule provides in sub-r. (1) that on receiving an application for the execution of a decree the Court is to ascertain whether such of the requirements of rr. 11 to 14 as may be applicable to the case have been complied with, and if they have not been complied with, the Court may reject the application, or may allow the defect to be remedied then and there or within a time to be fixed by it. Now view which was taken by a full bench of the Calcutta High Court in Asgar Ali v. Troibkya Nath Ghose(1) is that when an application is first made to the Court, the Court in considering whether it should be admitted and entered on the appropriate register has to see that it is in order, and if it is not in order, it can require it to be amended, but that after the application has once been admitted and entered on the register, the powers of the Court under r. 17 are at an end, and no leave to amend can afterwards be granted. The view taken in Asgar Ali v. Troilokya Nath Ghose was followed by the High Court of Calcutta in Hayatunnessa Chowdhurani v. Achia Khatun,(2) though a different view had been taken in Gnanendra Kumar Roy Choudry v. Rishendra Kumar Roy Choudry.(3) The Patna High Court in Jagannath Das v. Chamu Raghunath Khuntia(4) followed Asgar Ali v. Troilokya Nath Ghose. On the other hand in Sheogobind Ram v. Musammat Kishunbasi Kuer,(5) where the judgment was delivered by the same learned Judge who had delivered judgment in Jagannath Das' case the Court came to a different conclusion without referring to the earlier case. In Vemuri Pitchayya v. Raja Yarlagadda Ankineedu(6) the Madras Court disagreed with the view taken in Asgar Ali v. Troilokya Nath Ghose. On the other hand Sankaran Nair v. Ambum(7) appears to agree with Asgar Ali v. Troilokya Nath Ghose. In that state of the authorities one has to look rather critically at the words of the rule, and I am disposed to agree that if sub-r. (1), which I have already referred to, stood alone, the view taken in Asgar Ali v. Troilokya Nath Ghose would be right, and I should say that the rule only applies when the Court is considering taking the application on its file. But then one has to look at the later sub-rules. Sub-rule (2) is not relevant to the argument, for it merely directs that the amendment shall relate back to the presentation of the application. But sub-r. (3) provides that “every amendment made under this rule shall be signed or initialled by the Judge”, and sub-r. (4) provides that when the application is admitted, the Court shall enter in the proper register a note of the application and the date on which it was made, and shall, subject to the provisions thereinafter contained, order execution of the decree according to the nature of the application. That sub-rule seems to contemplate, first of all, a ministerial act in entering a note of the application in the proper register, and secondly, a judicial act, namely, the ordering of the execution of the decree, and the doing of both acts is mandatory. But that judicial act could not in this case have been performed unless the application was amended, and that would probably be so in many cases. So that the direction in sub-r. (4) that an order for execution shall be made, certainly, I think, suggests that the application must be put in order at the time when the Court is considering whether the order for execution should be made or not. That view is also strongly supported to my mind by sub-r. (3), which requires every amendment made under the rule to be signed or initialled by the Judge. Clearly the Judge could not be expected to sign or initial amendments which were required by the office before the application was entered on the file. The amendment must in fact be signed at the time of the hearing. In my view, therefore, reading the whole of r. 17 together, although, no doubt, the office can and should require the application to be in the condition required by the rules at the time when it is presented, nevertheless it is open to the Court at any time, up to and including the hearing, to make an amendment under the terms of the rule. In my opinion, therefore, the learned Judge was right in making the amendment under the terms of r. 17.
Even if I had thought that he had no power to make the amendment under r. 17, I should have said in this particular case that he was right to allow the amendment under the general jurisdiction of the Court to allow amendments, because the application did not seek execution against a particular property which subsequently proved not to be subject to execution, the applicant therefore being compelled to ask for leave to execute against another property after limitation had run. The application here did not specify any property, it merely referred generally to attachment of property under r. 54, that is, of immovable property. It must, from the nature of the case, have referred to the defendants' immovable property. The amendment therefore only involves giving particulars of that which was dealt with in general terms by the application. I am not prepared to accept Mr. Vachha's contention that the application was a mere nullity, because it did not describe the property in detail. However, if the amendment was made under r. 17, there is express power to make it, and sub-r. (2) makes it clear that the fact that limitation has expired is irrelevant. In my opinion the appeal must be dismissed with costs. I express no opinion on the further question whether giving leave under O. XXI, r. 22, is a step-in-execution.
B.J Wadia, J. I am of the same opinion. Taking O. XXI, r. 17(1), by itself, it would at first sight appear to contemplate the amendment of defects in an application for execution before the application was admitted and received by the Court. But the question still remains whether, supposing the Court overlooks the defect or defects and registers the application, the defect or defects can be subsequently amended so long as the application is still pending and the execution proceedings have not been closed. In Baijnath Ramchander v. Binjraj Joowarmal I referred to the full bench judgment in Asgar Ali v. Troilokya Nath Ghose, and I was of opinion that the Calcutta High Court had taken a very strict view of old s. 245 of the Code of 1882, which is substantially reproduced in O. XXI, r. 17(1). In that case the Calcutta High Court held that the section excluded the power of the Court to amend the application for execution once it had been admitted or received by the Court and the application registered. In my opinion O. XXI, r. 17(1), must be read along with sub-rr. (3) and (4). Sub-rule (4) says that after the application is admitted and registered, the Court shall order execution of the decree according to the nature of the application. The admission and registration is a ministerial act of the Court which is usually delegated to one of its officers. But unless the Court had the power to consider judicially whether the application was one in accordance with law, even after it was received and registered, it would be useless to order execution of a decree, if by reason of the defect it was not capable of execution. The mere fact of the receipt and registration of the application for execution should not therefore debar the Judge from considering whether the defects in the application should or should not be remedied. In fact that appears to be contemplated by sub-r. (3), which provides that every amendment made under that rule shall be signed or initialled by the Judge. The executing Court has, under this rule, got a discretion to allow the necessary amendments in the application in a fit case, if the provisions of O. XXI, rr. 11 to 14, have not been substantially complied with. It has, however, been pointed out in some cases that such a discretion should be exercised in favour of the decree-holder, only if at the time of application for amendment the period of three years from the last date of computation under Art. 182 of the Indian Limitation Act has not expired. In the Full Bench case at Calcutta the period of limitation had expired when the application for amendment was made to the Court. In the present case the application for execution was within time. The application for amendment, however, was made in August, 1937, and under Art. 182 of the Indian Limitation Act the three years period had already expired in July, 1937. As against that there is a further consideration, namely, the issue of the notice under O. XXI, r. 22, on April 23, 1937. It is doubtful whether the issue of that notice is a step-in-aid of execution under Art. 182, on the ground that the notice, being ancillary to the application for execution, cannot amount to a valid step-in-aid of execution, if the principal application itself is defective. It is not, however, necessary to decide the point, for I am of opinion that under O. XXI, r. 17, the Court has a discretion, even if the application for amendment is made after the expiry of the period of limitation under Art. 182, to remedy the defects when first brought to its notice, provided the delay is not unreasonable under the circumstances, and the application is otherwise bona fide. There is no ground for interfering with the discretion exercised by the learned Judge.
Even apart from O. XXI, r. 17, the Court always has the discretion to allow the amendment under its general jurisdiction, and on that ground also the learned Judge was right in holding that the application for amendment should be allowed. In the result I agree that this appeal must be dismissed with costs.
Attorneys for appellants: Messrs Wadia, Ghandy & Co.
Attorneys for respondents: Messrs Ghulamali Noorani & Co.
Appeal dismissed.
N.K.A
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