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Roopchand v. Loobchand

Rajasthan High Court

Mar 29, 1956

Judgment

Subsequent
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Judgment Summary — Dave, J.

Factual and Procedural Background

This second appeal arises from execution proceedings. The decree-holder obtained a decree against the respondent on 22 March 1945. He presented an application for execution on 2 April 1947. Notices were issued but the respondent was not served, so fresh notice was directed and the matter was adjourned to 26 June 1947. On that date the decree-holder failed to appear and the execution application was dismissed for default.

The decree-holder presented another application on 17 June 1950. On that occasion the judgment-debtor appeared and contested the execution application on the ground of limitation, arguing that the decree-holder's first application of 2 April 1947 was not "in accordance with law" and thus could not be treated as a step in execution; consequently, the subsequent application (referred to in the opinion also as dated 17 January 1950) was said to be barred by Article 182 of the Indian Limitation Act. The trial court allowed that objection and dismissed the application; an appeal to the Senior Civil Judge, Sirohi, was dismissed, and the decree-holder brought this second appeal.

The opinion contains an internal inconsistency in dates: it records the later execution application both as 17 June 1950 and as 17 January 1950. The summary above follows the wording of the opinion without reconciling that inconsistency.

Legal Issues Presented

Whether the decree-holder's first execution application dated 2 April 1947 was "in accordance with law" under Order XXI (in particular Rule 11(2)(j) and Rules 11–14 read with Rule 17) of the Civil Procedure Code.
Whether, if the first application was not in accordance with law, it nonetheless constituted a "step in and of execution" so as to prevent the subsequent application from being barred by Article 182 of the Indian Limitation Act.
Whether a second appeal lies in these proceedings where a preliminary objection was raised that the suit was of a small cause nature and therefore appeal was barred by Section 102 of the Civil Procedure Code (the court considered whether that provision applied to the Sirohi jurisdictional context and the applicable procedural code).

Arguments of the Parties

Decree-holder's (Appellant's) Arguments

The only defect in the first execution application (2 April 1947) was non-compliance with Order XXI, Rule 11(2)(j) — it did not state how the decree was to be executed against the judgment-debtor (i.e., the "mode" of execution).
Because the court registered the application and processes were ordered to be issued without objection, the application should be treated as being "in accordance with law".
Relying on Order XXI, Rule 17, the appellant argued that it was the court's duty to point out defects and allow the decree-holder to remedy them; since the court did not do so, the omission should not prejudice the decree-holder.
Alternatively, even if the first application was not strictly “in accordance with law”, it should at least be treated as a step in execution (so as to preserve the later application from being barred by limitation). The appellant relied on case law (notably Odhavji Anandji v. Haridas Ranchhor Das) to support this position.
Cited other authorities (Sundar Singh Hira Nand; Pulin Behari Das; Gendmal Amolakchand Marwari) to show that some defects have been held to be immaterial in past decisions.

Respondent's (Judgment-debtor's) Arguments

A preliminary objection was raised that a second appeal did not lie because the suit was of a small cause nature, and therefore appeal was barred by Section 102 of the Civil Procedure Code. (That objection was later withdrawn when it was shown that the code applicable in the former Sirohi State did not contain a provision corresponding to Section 102.)
On the merits of the execution application, the respondent contended that the first application of 2 April 1947 was not in accordance with law (for want of specifying the mode of execution) and therefore could not count as a step in execution; consequently the later application was barred by Article 182 of the Limitation Act. The trial court sustained that objection and dismissed the application.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Kalu Ram and Ram Sahai v. Mst. Gyarsi	Definition of "in accordance with law" for an execution application — whether the executing court would or would not issue execution on the application; an application is "in accordance with law" if execution could lawfully be ordered on it.	The court applied this standard to assess whether the application filed on 2 April 1947 was one upon which the executing court could lawfully have ordered execution.
Buchraj v. Gumna	Reiteration of the view that "in accordance with law" requires that the executing court could lawfully issue execution on the application.	Used as supporting authority to the Kalu Ram principle when testing the April 1947 application.
Sundar Singh Hira Nand v. Kltilanda Ram	Example of a defect (absence of signature and verification) that was considered in prior decisions.	The court distinguished this case: the defect there was formal (signature/verification) and not analogous to the present omission of the mode of execution.
Pulin Behari Das v. Syed Reasat Ali	Held that certain defects (wrong suit number, incorrect amount) were not material where execution could be carried out and the judgment-debtor had not acted to set aside registration.	Distinguished: in Pulin Behari Das the defects were formal and the decree could be executed; the court found the present case materially different because of the absence of any specification as to the relief/mode requested.
Gendmal Amolakchand Marwari v. Laxman Tanba Krushnapakshi	Example where decree-holder mistakenly sought possession in a partition decree — not a case of total absence of relief sought.	Distinguished: the present case involved a total omission to specify the mode of execution, unlike the Gendmal factual matrix.
Odhavji Anandji v. Haridas Ranchhor Das	Held that an application stating "by issuing a notice under Order XXI, Rule 22" in the column for mode was not irregular and should be treated as proper under Order XXI, Rule 11.	The appellant relied on this decision to argue that a statement about issuing a notice suffices. The court noted, however, that the same learned Judge later changed this view in Vallabhdas Narandas.
Vallabhdas Narandas v. Katuilal G. Parekh	Held that stating "By the issue of a notice under O.21, R.22" in the mode column is wrong: issuing a notice under R.22 is not a mode of execution but a procedural hurdle before relief can be obtained.	Quoted and relied upon by the court to support the conclusion that a mere request for the issue of a notice under R.22 does not amount to specifying a mode of execution and cannot make an application "in accordance with law."
Sha Karamchand Gokaldas v. Ghelabhai Chakaldas	Held that an application praying generally that defendants be ordered to act as directed by the decree was not "in accordance with law" because it failed to specify the mode in which assistance of the court was sought.	Invoked by the court as further authority that supports the proposition that failure to specify the mode renders an application not in accordance with law.
45 Bom. L.R. 400	Referenced as an earlier decision to the extent it held that stating a notice under O.21 R.22 in the mode column satisfied Rule 11; Vallabhdas regarded that extent as erroneous.	The court referenced Vallabhdas's criticism of the holding in 45 Bom. L.R. 400 to demonstrate that the practice of treating R.22-notice statements as a mode was unsound.

Court's Reasoning and Analysis

The court analyzed the matter by reference to the procedural provisions of Order XXI and to the established case law interpreting the phrase "in accordance with law" as used in execution procedure.

First, the court observed the duty placed on the executing court by Order XXI, Rule 17: on receiving an application for execution the court must ascertain whether the requirements of Order XXI, Rules 11 to 14 have been complied with. If they have not been complied with, the court has two alternatives — reject the application, or (preferably) point out the defect to the petitioner and allow it to be remedied forthwith or within a fixed time.

The court emphasized, however, that the procedural duty of the court to point out defects does not deprive the judgment-debtor of the right to raise the defect himself. An application which is defective because it does not comply with the requirements of the rules does not become an application "in accordance with law" merely because it was registered by the court or notices were issued. The court must, independently of such registration, determine whether the application was in accordance with law when the judgment-debtor challenges that point.

The court then applied the Kalu Ram principle: to decide whether an application is "in accordance with law" one must ask whether the executing court could lawfully have issued execution on that application. Order XXI, Rule 11(2)(j) specifically requires that an application for execution must state the mode in which the assistance of the court is required (listing five modes: delivery of property, attachment and sale, arrest and detention, appointment of a receiver, or otherwise as the decree may require). The court held that unless the petitioner specifies one of these modes it may not be possible for the executing court to execute the decree; therefore failure to include such a specification means the application is not in accordance with law.

The court distinguished earlier authorities relied on by the appellant (Sundar Singh Hira Nand; Pulin Behari Das; Gendmal) on the ground that the defects in those cases were either formal or did not amount to a total absence of any claimed mode of relief; in the present case there was a total omission to specify any mode.

The court also considered the appellant's alternative contention that the first application ought to be treated as a step in execution even if not strictly in accordance with law. The appellant relied on Odhavji Anandji. The court observed that the judge in Odhavji later changed his view in Vallabhdas Narandas, holding that stating "issue of notice under O.21, R.22" in the mode column was not a valid mode of execution because the issue of that notice is a preliminary hurdle and not an enforcement mode. The court further cited a Bombay High Court decision (Sha Karamchand Gokaldas) that reached a similar conclusion about the necessity of specifying a mode. On this basis the court concluded there was no authority supporting the appellant's contention that the defective application could nevertheless be a step in execution.

Applying these legal principles to the facts, the court found no error in the courts below in holding that the April 1947 application was not in accordance with law; therefore the subsequent application was barred by Article 182 and the objection was rightly sustained.

Holding and Implications

DISMISSED — the second appeal is dismissed with costs.

Implications:

The decision affirms the view that an execution application that fails to specify the mode of execution required by Order XXI, Rule 11(2)(j) is not "in accordance with law" for the purposes of execution procedure.
Registration of a defective execution application and the issuance of process do not retrospectively render the application lawful if the judgment-debtor raises a valid objection; the executing court must independently determine whether the application is one upon which execution could lawfully be ordered.
Because the court dismissed the appeal and affirmed the lower courts' rulings, the decree-holder's later execution application was treated as barred by Article 182 of the Limitation Act in the circumstances of this case; the practical effect is that the decree-holder loses the execution relief sought in the later application.
The opinion does not announce a novel legal principle or purport to overrule prior binding authority; rather it applies existing interpretations of Order XXI and relevant case law to the facts and distinguishes authorities relied upon by the appellant.

Show all summary ...

Dave, J.:— This is a second appeal by the decree-holder in execution proceedings.

2. The facts giving rise to it are that the appellant got a decree against the respondent on 22nd of March, 1945. He presented an application for execution on 2nd of April, 1947. Notices were issued to the respondent and the case was fixed for 17th of May, 1947. The respondent was not served and, therefore, direction was given to issue fresh notice to him and the case was adjourned to 26th of June, 1947. On this date the decree-holder failed to put in his appearance and, therefore, the execution application was dismissed for default.

3. The decree-holder when presented another application on 17th of June, 1950. This time the judgment-debtor put in his appearance and contested the execution application on the ground of limitation. It was urged that the decree-holder's, first application, dated 2nd of April, 1947 was not in accordance with law and that it could not be treated as a step in and of execution and, therefore, the application dated 17th of January, 1950 was barred by Art. 182 of the Indian Limitation Act. This objection was allowed by the court and the application was dismissed. The decree-holder went in appeal but the Senior Civil Judge, Sirohi dismissed the same and hence he has come here in second appeal.

4. The respondent's counsel took a preliminary objection that the second appeal did not lie because the suit was of a small cause nature and, therefore, the appel was barred by sec. 102 of the Civil Procedure Code. In reply, it was pointed out by the decree-holder's learned counsel that in the Civil Procedure Code which was in force in the former Sirohi State, sec. 102 was specifically deleted and since the new Civil Procedure Code came into force on 24th of January 1950, the objection raised by the respondent's counsel was not correct. Learned counsel for the respondent has conceded after looking into the Civil Procedure Code which was applicable in Sirohi State before the 24th of January, 1950, that there was no provision in that Code corresponding to sec. 102 of the Civil Procedure Code. The preliminary objection is therefore dismissed as withdrawn.

5. Learned counsel for the appellant has urged that the only defect in the first execution application, dated 2nd of April, 1947, was that the requirement of Order XXI, Rule 11(2)(j) of the Civil Procedure Code was not fulfilled inasmuch as it was not mentioned as to how the decree was to be executed against the judgment-debtor; but it is urged that since the application was registered by the court without any objection and processes were ordered to be issued against the judgment-debtor, it could not be said that the application was not in accordance with law. It is contended by learned counsel that according to Order XXI, Rule 17, it is the duty of the court to check up the application and find out if it is defective in any manner the decree-holder should be allowed to remedy the defect either then and there or within a time to be fixed by the court. It is urged that since the court did not point out any defect to the decree-holder but registered it and issued process to the judgment-debtor, it should be taken that the application was considered as one in accordance with law and the judgment-debtor's objection was, therefore, incorrect.

6. I have given due consideration to this Page: 487argument, but in my opinion, it is not sound. It is true that Order XXI Rule 17 requires that on receiving the application for execution, the court must ascertain whether requirements of Order XXI, Rules 11 to 14 have been complied with and if it finds that they have not been complied with, then there are two alternatives open to the court. One alternative is to reject the application and the other course which is more just is to point out the defect to the petitioner and allow him to remove the defect either forthwith or within a time which may be fixed by the court. This does not, however, take away the judgment-debtor's right to point out the defect, if any, left out by the decree-holder even though it may not have been noticed by the court. An application which is not in accordance with law and which is defective on account of the non-compliance of the requirements of the rules pointed out above would not become an application in accordance with law simply because it is registered by the court or notices are issued to the judgment-debtor. Since the judgment-debtor has raised the question that the appellant's application was not in accordance with law, this Court will have to determine that point irrespective of the consideration that the appellant's previous application was registered by the court. In the case of Kalu Ram and Ram Sahai v. Mst. Gyarsi (1), it was held by a Division Bench of this Court after reviewing several decisions of other High Courts that in order to see whether a particular application for execution is or is not “in accordance with law”, what has to be looked into each particular case is whether the executing court would or would not issue execution on the application as preferred to it. The expression in accordance with law should be taken to mean that the application though defective in some particulars is one upon which execution could lawfully be ordered. The same view was reiterated in Buchraj v. Gumna (2). We have, therefore, to see whether the executing court could or could not issue execution on the application which was presented to it on the 2nd of April, 1947. It may be pointed out that Order XXI, Rule 111(2)(j) provides that an application for execution must contain the mode in which assistance of the court is required. It further lays down five modes and, therefore, it is incumbent upon the petitioner to make it clear in which manner he requests the court to execute the decree, that is, whether by means of delivery of property or by its attachment and sale, or by arrest and detention of the judgment-debtor, or by the appointment of a receiver or otherwise as the nature of the relief granted may require. Unless the petitioner specifies someone of the modes pointed out above, it may not be possible for the executing court to execute the decree. If the decree-holder fails to comply with the provisions of this clause, then it cannot be said that his application was in accordance with law. Learned counsel for the appellant has referred to Sundar Singh Hira Nand v. Kltilanda Ram (3), but in that case, the defect in the petition was that of the absence of the signature and verification by the decree holder. He has next referred to Pulin Behari Das v. Syed Reasat Ali (4). In that case also, the defects lay in not mentioning the correct number of the suit and in giving incorrect amount for which the decree was passed. It was held that the defects were not material. In that case, it was further found that the judgment-debtor had taken no steps to have the order for registration set aside. It is obvious that the case is easily distinguishable because the defects pointed out were formal. The execution of the decree could be made and further the judgment-debtor was also not vigilant. The next case relied upon is Gendmal Amolakchand Marwari v. Laxman Tanba Krushnapakshi(5). This case is also distinguishable because the decree-holder had by mistake asked for a relief for possession although it was a decree for partition. It was not a case of total absence of the relief which can be asked for by the decree-holder. Learned counsel has not been able to cite a single case in which the decree-holder may not have asked for any relief in his execution application as was done in this case.

7. Learned counsel has next urged that even if the appellant's application be not held in accordance with law, it should still be taken as a step in and of execution of the decree. In support of his contention, he has referred to Odhavji Anandji v. Haridas Ranchhor Das(6). In that case, the decree-holder had written in the column about the mode of execution, the following words: “by issuing a notice under Order XXI, Rule 22 of the Civil Procedure Code. “It was held that the application containing the said words was not irregular and that it should be considered as a proper application as required under Order XXI, Rule 11. It may be pointed that this view was changed by the same learned Judge in a subsequent case, Vallabhdas Narandas v. Katuilal G. Parekh(7) with the following observation:—

“In my opinion, therefore, the practice hitherto followed in the Prothonotary's office of permitting the statement “By the issue of a notice under O. 21, R. 22” in col. (j) of O. 21, R. 11(2), is not supported by authority and is wrong. The words of O. 21, assume the existence of an application for execution, which is assumed again to be in accordance with O. 21, R. 11, read if necessary with O. 21, R. 17. When such an application for execution is made, the Court has to scrutinise whether it is made within a year of the previous application. If it finds the same to be beyond that period the Court directs a notice to issue. That notice the Court may make absolute, after hearing the parties. Although the application for execution is on file the decree-holder does not get the relief through the assistance of the Court. The Court directs the issue of a notice. In my opinion, therefore, the issue of a notice under O. 21, R. 22, is not a mode of execution and is not a relief which a party asks as awarded by the decree. He has to wait because he has come to Court one year after the previous order of execution. This is made clear Page: 488again by the words of R. 22. On proper grounds being shown the Court can dispense with the issue of that notice. This clearly indicates that it is not a mode of execution or enforcement of the decree. It is a hurdle which the decree-holder has to cross or which obstruction is removed by the special order of the Court, before he obtains the relief awarded to him by the decree. The judgment in 45 Bom. L.R 400 to the extent it is held that an application for execution which contains in col. (j) the words “By the issue of a notice under O. 21, R. 22” is a proper application as prescribed by O. 21, R. 11, is erroneous.”

8. On the other hand, the learned Judges of the Bombay High Court had in an earlier case Sha Karamchand Gokaldas v. Ghelabhai Chakaldas gone so far as to say that an application in which the decree-holder had prayed that the defendants be ordered to act as directed by the decree was not in accordance with law as it did not specify the mode in which the assistance of the court was sought. Thus, there is no authority in favour of the appellant and I do not think that the courts below have taken a mistaken view of law.

9. The appeal is, therefore, dismissed with costs.