Brajasunder Das v. Radha Prasad Bhagat

Fazl Ali, J.:— This appeal arises out of an execution proceeding which the appellant sought to resist in the Court of the Subordinate Judge of Cuttack on two principal grounds (1) that the decree was barred by limitation and (2) that the application for execution was not in accordance with law.

It appears that the decree was passed on the 25th November, 1927. The first execution petition was filed on the 10th May, 1929, and the present execution proceedings were started on the 3rd April, 1930. It was contended by the appellant that the execution petition of the 10th May, 1929, was neither in accordance with law nor could it be regarded as a step-in-aid of execution inasmuch as out of the two executors to the estate of the judgment-debtor only one, namely, Brajasundar Das had been made a party to that application and the other executor, namely, Lalmohan Patnaik had not been made a party. In reply to this contention it was pointed out on behalf of the decree-holder that shortly before the execution proceedings of the year 1929 were started, the appellant had executed a sale deed on the 11th February, 1929, in which he had stated in clear terms that Lalmohan Patnaik had filed a petition of resignation in the High Court and the High Court had removed his name from the category of executors on the 12th of January, 1929. Reliance was placed on behalf of the decree-holder also on Exhibit A, a petition filed by the appellant on the 16th February, 1929, which runs as follows:—

“After the institution of the said Execution Case the petitioner's co-executor Babu Lalmohan Patnaik tendered his resignation to his post of executor and the High Court has accepted the same. The petitioner is qualified under law to conduct the said Execution Case alone. As the said Lalmohan Patnaik tendered resignation, it is necessary that the petitioner should take permission to conduct the said Execution Case singly. Therefore the petitioner begs to file this petition for permission and prays that permission for conducting the said execution case singly be granted to him.”

Evidently this prayer was allowed and the property which was sought to be proceeded against by the decree-holder in the execution proceedings of the year 1929 was purchased in the name of the appellant only. Before the learned Subordinate Judge two witnesses were examined on behalf of the appellant, one of whom admitted that Lalmohan Patnaik had applied before the High Court renouncing his executorship and that for the last four or six years Brajasundar Babu had been defraying the expenses of the estate and that the accounts were with him. It was, however, also stated that Lalmohan Babu had not yet been discharged from the executorship. It is noticeable that the order-sheet of the High Court has not been filed on behalf of the appellant and the question has to be decided as to whether the oral evidence adduced on behalf of the appellant is sufficient to displace the admission made by him in Exhibits A and B wherein it was stated in clear terms that the High Court had removed the name of Lalmohan Patnaik from the executorship. The appellant himself did not come to the witness box to explain his admission and it would seem difficult in these circumstances to hold that his admission can be entirely ignored in these proceedings. Assuming, however, that the statement made by his witness no. 1 is correct, it would appear to me that the application of the decree-holder of the 10th May, 1929, was in any case a step-in-aid of execution within the terms of Article 182 of the Limitation Act. It has been held in Ganeshtoar Singh v. Than Mall that an application for execution of a decree made against a wrong person under the bona fide belief that person, was the real legal representative of the judgment-debtor is an application in accordance with law within the meaning of Article 182 of Schedule I to the Limitation Act and that in any event it was clearly an application to take a step-in-aid of execution of the decree and would give a fresh start to the period of limitation. The same view appears to have been taken in Bipin Behari Mitter v. Bibi Zohra and in Puran Mai v. Musammat Dilwa. In this particular case there cannot be any question about the bona fides of the decree-holder in view of the statements made by the appellant himself in Exhibits A and B and the fact that the property which was proceeded against by him in the year 1929 had been purchased by the appellant himself on the representation that Lalmohan Babu was no longer an executor.

It is also urged by the decree-holder that the application of the 10th May, 1929, was in accordance with law and in accordance with the requirements of Order XXI, rule 11, inasmuch as all the details required by that provision are to be found in that application. In my opinion the application of the 10th May, 1929, was in any event a step-in-aid of execution. If that view is permissible it is clear that the present application was within time and the decree was not barred by limitation on the 3rd April, 1930, when this application was presented.

The next objection of the decree-holder is that no amendment should have been allowed by the learned Subordinate Judge after the execution petition had been registered. It appears that the learned Subordinate Judge allowed the decree-holder to amend the petition by introducing the name of Lalmohan Patnaik on the ground that there was in any case a mere technical defect in the application. The learned Advocate for the appellant relies in this connection on Asgar Ali v. Troilokya Nath Ghose. That case was distinguished by a Division Bench of this Court in Rai Bahadur Ram Sumran Prasad v. Ram Bahadur*. In the latter case it was held that a Court is competent at any time before execution proceedings terminate, and before the decree becomes barred by limitation, to allow a decree-holder whose application for execution of his decree is pending, to amend the application by the addition of other properties to the list of properties sought to be attached. In the judgment which was delivered by Mr. Justice Mullick a reference was made to the argument advanced in that case that rule 17 of Order XXI contemplates that there can be no amendment after the execution case had been registered. The learned Judge, however, pointed out that there could be no force in that contention and it has been so held in Ganendra Kumar Roy Chowdhury v. Sri Sri Shyam Sundar. Towards, the end of his judgment he further pointed out that on the day the amendment was allowed to be made the Court had jurisdiction to accept the amended petition as a fresh application for execution or could entertain the application for amendment of the previous application. In my opinion even if it was to be held that no amendment is permissible after the application has been registered, there was nothing to prevent the Court from treating the amended application as a fresh application for execution as, on the date the amendment was allowed to be made, the decree was not barred by limitation.

As both the points urged in this appeal fail, I would dismiss it with costs.

Macpherson, J.:— I agree.

Appeal dismissed.