Gnanendra Kumar Roy Choudry v. Rishendra Kumar Roy Choudry

This appeal arises out of certain proceedings in execution. The decree in question being a rent decree was obtained against certain persons as shebaits of a certain thakur on the 28th November 1911. The application for execution was made on the 23rd November 1914. On its face the application was one in accordance with law. Later, on objection taken by the judgment-debtors, it was discovered that against the properties specified in the list furnished under Or. XXI, r. 13, proceedings could not be taken and accordingly on the 14th January 1915, the decree-holder made an application to the Court requesting the Court to accept a further list of properties and praying that execution should proceed by attachment and sale of those properties. It has been held by the first Appellate Court that the application having been admitted and registered the proposed amendment could not be accepted and that it would be necessary for the decree-holder to make a fresh application in execution. In coming to this conclusion the Court relied upon the decision of a Full Bench of this Court in Asgar Ali v. Troylukho Nath and in this Court, we may observe, further reference has been made to the case of Salimullah v. Sainaddi. But the present case may be distinguished from both these cases in that in those two cases the application as originally made was one not made in accordance with law and that it contained no list of properties against which the proceedings were intended to be taken, in the present case, as we have already pointed out, the matter is different. Here there was a list of properties, the application was one made in accordance with law and it was only on the objection taken by the judgment-debtors that it was discovered that against, those properties execution could not proceed. We are not of opinion that in a case such as this the decree-holder should be confined to the properties he had originally specified and we think that it was open to him to ask the Court to proceed against the properties specified in his further and supplementary list. We are further of opinion that list should be taken as part of the original application under the provisions of Or. 21, r. 17(2), or if a fresh application were at all necessary that application should be treated as one made in continuance of the application first presented on the 23rd November 1914.

In this view no question of limitation arises and we therefore set aside the order of the first Appellate Court and decree this appeal with costs. The decree-holder will now be at liberty to proceed in execution as on his application of the date 23rd, November 1914.

We assess the hearing fee at three gold mohurs.

K.C.C

H.C.S

Appeal allowed.