Manohur Chandra Bandopadhyay v. Kali Priya Roy Chaudhury
1937-05-04
body1937
DigiLaw.ai
JUDGMENT Mukherjee, J. - This appeal is on behalf of the judgment-debtors and it arises out of an order passed by the Subordinate Judge of Faridpur in a proceeding under see. 47 C. P. C. The facts which are material for our present purposes lie within a short compass, and may be stated as follows:- The decree-holders obtained a preliminary decree for sale in a mortgage suit on the 16th of December, 1930. The decree was made final on the 30th of April, 1931, and on 4th September, 1934, an application for amendment was made by one of the decree-holders alleging that there was a certain misdescription in his name as it occurred in the final decree, his name really being Sudhipriya Roy Choudhury and not Sudhir Priya Roy Choudhury as was stated in the decree. On 10th September, 1934, there was another application for amendment and the decree-holders prayed therein for insertion of the list of the mortgaged properties in the schedule to the final decree. Both these applications for amendment were allowed on 26th January, 1935, and after that, on 25th March, 1935, the present application for execution was presented by the decree-holders. The judgment debtors resisted this application on the ground that the decree was barred by limitation. The Subordinate Judge has overruled this contention and passed an execution order in favor of the decree holders. It is against this order that the present appeal has been preferred by the judgment-debtors. Mr. Majumdar, who appears for the Appellants, has raised the contention that the Court below ought to have held that the decree was barred by limitation inasmuch as the application for execution was not presented till more than three years had elapsed from the date of the final decree. He argues that Art. 182, cl. (4) of the Limitation Act upon which reliance was placed by the trial Court was of no assistance to the decree-holders in this case inasmuch as the application for amendment itself was made more than three years after the date of the decree and the decree must be deemed to have been already dead at that time. Mr. Majumdar has also attacked the amendment order dated the 26th of January, 1935 and he has got a Rule against this order under sec. 115, C. P. C, being Rule No. 516 of 1935 which is heard along with this appeal. 2.
Mr. Majumdar has also attacked the amendment order dated the 26th of January, 1935 and he has got a Rule against this order under sec. 115, C. P. C, being Rule No. 516 of 1935 which is heard along with this appeal. 2. As regards the Rule, Mr. Majumdar's contention is that the Court below passed the order of amendment illegally and with material irregularity in the exercise of its jurisdiction. It is pointed out that there was no explanation for delay given by the decree-holders in the application for amendment and it is also pointed out that the amendments prayed for were altogether unnecessary, there being no misdescription so far as decree-holder No. 1 was concerned and there was no necessity for inserting any schedule of the mortgaged properties to a final decree for sale. It is necessary that we should deal with the Rule first, because if the Rule succeeds the appeal will succeed as a matter of course, time being counted from the date when the original decree was passed. 3. Looking at the order for amendment that has been passed by the trial Court I am of opinion that the order cannot be said to be illegal or irregular. The application presumably was made under sec. 152, C. P. C. and there is no time limit prescribed by law within which an application for amendment of this nature has got to be made. It is true that when there are undue larches on the part of the Petitioners or the interest of third parties has intervened, the Court should be reluctant in allowing amendments of this description; but, in the circumstances of this case, when the omission of the schedule was due to a mistake, if any, on the part of the Court officers and the misdescription in the name was also a palpable error apparent on the face of it, I think that the decree-holders were under no obligation to satisfy the Court below that really there were no larches on their part. It is also apparent from the facts set out in the counter-affidavit that there were proceedings taken by the judgment-debtors under or. 9, r. 13, C. P. C, against the preliminary and the final decrees for sale.
It is also apparent from the facts set out in the counter-affidavit that there were proceedings taken by the judgment-debtors under or. 9, r. 13, C. P. C, against the preliminary and the final decrees for sale. While these proceedings were pending the decree-holders might bond fide believe that there would be no use in making applications for correcting the decree and they might have reasonable grounds for waiting till these miscellaneous proceedings were finally decided. I am also not impressed with the argument of Mr. Majumdar that the insertion of the schedule of the mortgaged properties in the final decree for sale was not necessary. It is true that under the forms that are now prescribed the schedule is omitted in the final decree and there have been corresponding changes in the operative part of the decree also; but as the form stood under the old practice which has been adopted in this case there was an express reference in the decree to the description of the properties at the foot of the decree, and unless there was a schedule of the properties properly given it might be said that the decree was incomplete and incapable of execution. So considering these facts I am of opinion that the amendments were both necessary and proper and there were no undue larches on the part of the decree-holders which would disentitle them to this relief. 4. This being the case the Rule must stand discharged and this is a matter which does not, strictly speaking, come within sec 115, C. P. C. 5. Now, if the order for amendment stands, as we hold that it should stand, I think that the contention of Mr. Majumdar in the appeal itself would have no substance. Art. 182, cl. (4) cf the Limitation Act is perfectly clear and allows an application for execution to be made within three years from the date when the decree is amended. I think it is beyond the competence of the executing Court to decide as to whether the order for amendment of the decree was proper or not.
Art. 182, cl. (4) cf the Limitation Act is perfectly clear and allows an application for execution to be made within three years from the date when the decree is amended. I think it is beyond the competence of the executing Court to decide as to whether the order for amendment of the decree was proper or not. It may be the duty of the Court allowing the amendment to consider as to whether an amendment should be granted at all when the application was made more than three years after the date of the decree; and if there is an order for amendment passed in such cases the parties of course could challenge that order by way of revision as they have attempted to do here; but it is no business of the executing Court to enter into the propriety of the question as to whether the amendment should have been made or not, and once the decree is amended it has got to take the amended decree as it stands and allow execution of it, provided the application for execution is made within three years from the date of the amended decree. This view was taken by this Court in the case of Durga Prosad Das Vs. Kedarnath Nayek and Another, AIR 1929 Cal 650 . which is Second Appeal No. 430 of 1928 and is reported in Durga Prosad Das Vs. Kedarnath Nayek and Another, AIR 1929 Cal 650 and this has been followed in the other High Courts. [See Mvsammat Bhagirathi Kuer v. Narsingh Norayan Singh I. L. R. 9 path 782 (1930) and Allada Lakshmikanta;, Rao v. Naddella Ramyya I. L. R.58 Mad 743 (1934) I am in entire agreement with this view as laid down above and as the order of amendment stands, this appeal cannot succeed. The result is that the appeal is dismissed with costs, the hearing-fee being assessed at two gold mohurs. The Rule is discharged without costs. Derbyshire, C.J. I agree.