Rabindra Kumar Bora & Ors. v. Panna Devi Agarwalla and Another
1982-11-12
S.M.ALI
body1982
DigiLaw.ai
Heard learned counsel Mr. P. G. Barua. None appeared for the respondents. This appeal arises from the judgment passsed by learned Assistant District Judge No. 1, L. A. D. at Gauhati in Miscellaneous Appeal No. 14 of 1973 dismissing the appeal and affirming the order appealed against viz. the order passed by learned Sadar Munsiff in Misc. Case (J) No. 57 of 1972 arising out of an objection petition filed by the judgment debtor/appellant under section 47 C. P. C. in Execution Case No. 26 of 1970. Plaintiff decree-holder Smti. Panna Devi Agarwalla obtained an exparte decree in Title Suit No. 121 of 1966 against the appellant for ejectment of the appellant from two rooms of a house leased out to him previously together with arrear rent and compensation. On an execution petition case having been filed on behalf of the D.H. the execution case was started. The judgment debtor came up with an objection petition under section 47 C. P. C. on the allegations, inter alia, that the execution petition was not signed and verified. The learned Sadar Munsiff decided the case under section 47 C. P. C. against the appellant who then preferred an appeal and the learned Assistant District Judge dismissed the appeal, as said before. 3. Mr. P. G. Barua raised only two points in this appeal viz., (1) that the execution petition was not duly signed by the DH or on her behalf by an authorised person, and (2) verification was not done as required under the law. He referred to Order 3 Rules 1 and 2 where it is laid down that any appearance, application or act in court required or authorised by law to be made or done by a party in such court may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person or by his recognised agent or by a pleader appearing, applying or acting as the case may be on his behalf. Under the provisions of Rule 2 of Order 3 recognised agents of a party are defined who can make such appearances, applications or acts as referred to above. 4. As regards the objection regarding signing of the execution petition, it is found that an authorised lawyer signed the petition.
Under the provisions of Rule 2 of Order 3 recognised agents of a party are defined who can make such appearances, applications or acts as referred to above. 4. As regards the objection regarding signing of the execution petition, it is found that an authorised lawyer signed the petition. So under provisions of Rule 1 of Order 3, C.P.C. this part of the objection can be covered, because under those provisions a pleader appearing, applying or acting on behalf of the party can, inter alia, make a petition to the Court on behalf of the party. The next question is regarding verification of the execution petition. Mr. Barua referred to Order 21 Rule 11(2) C.P.C. and stressed that these provisions with regard to an application were not complied with for the following reasons. It is found that (1) one Radha Mohan Goenka verified the execution petitions ubse-quently with permission of the Court. When filed in Court, the application bore only the signature of the learned counsel for the decree-holder but did not bear any verification. Subsequently, on prayer on behalf of the DH, one Radha Mohan Goenka was allowed to verify the petition. He put his signature at the bottom of the first page of the petition by way of verifying it and described himself as Attorney for Panna Devi Agarwalla (DH). The verification part of the petition bears the following words in Assamese - @ Assam = It is therefore found that Radha Mohan Goenka described himself as decree-holder as well. Of-course there is a statement below his signature that he is Attorney for Panna Devi Agarwalla. But according to learned counsel Mr. Barua this is not enough. The provisions of Rule 11 (2) of Order 21 require that the person who verifies such an application should prove to the satisfaction of the Court to be acquainted with the facts of the case. Here in the instant case nothing has come across by way of proof to the satisfaction of the Court that Radha Mohan Goenka was acquainted with the facts of the case. Mere statement that he is Attorney for Panna Devi Agarwalla cannot serve the purpose of proof to the satisfaction of the Court.
Here in the instant case nothing has come across by way of proof to the satisfaction of the Court that Radha Mohan Goenka was acquainted with the facts of the case. Mere statement that he is Attorney for Panna Devi Agarwalla cannot serve the purpose of proof to the satisfaction of the Court. The term "proof" as used under Rule 2 of Order 21 has necessary implication that there should be some material on record which can satisfy the Court as to the fact that the person verifying is acquainted with the facts of the case. It is also not found anywhere in the impugned orders that the Court was satisfied to that effect. The verification as it appears was accepted by the Court almost mechanically but the requirement of the provisions in that behalf is that there should be something positive in the order to render satisfaction of the Court regarding the matter. 5. Mr. Barua referred to a case-District Board, Allahabad vs. Lala Beharilal, AIR 1936 All. 17. In that case the application for execution was signed and verified on behalf of the decree-holder by a man who purported to be the Mukhtar-i-am of the decree-holder and it was also presented by him. No Mukhtar-nama was filed to show that the person who signed, verified and presented the application was the Mukhtar-i-am of the decree-holder. There was no proof however as required by the Court that he was really Mukhtar-i-am of the decree-holder. The Court, therefore, dismissed the application. It was held in that case that the provisions of Rule 11 Order 21 C. P. C. as regards signing the verification of the application for execution are mandatory and that the omission to comply with the same constitutes a material irregularity which renders the application exposed to the objection that it is not in accordance with the law. Learned counsel also cited Venkata Rao vs. Surya Rao Bahadur, AIR 1950 Madras 2. The same view was held in that case too. Learned counsel also relied on Belasiram & Sons vs. Mahendra Ch. Dutta (1981) 1 Gauhati Law Reports 322 wherein it was held that the object of signature and verification of the plaint is to fix upon the plaintiff the responsibility for the statement and to affirm the guar-ntee of good faith for filing the suit.
Learned counsel also relied on Belasiram & Sons vs. Mahendra Ch. Dutta (1981) 1 Gauhati Law Reports 322 wherein it was held that the object of signature and verification of the plaint is to fix upon the plaintiff the responsibility for the statement and to affirm the guar-ntee of good faith for filing the suit. Learned counsel agrued that such irregularitiesin the matter of a plaint may not be fatal to the plaintiff; but in case of an execution application the law is more stringent and as held in the Allahabad and Madras, cases (supra) an irregularity regarding signing and verifying an execution petition cannot be cured. 6. In view of the case of Gauhati Law Reports (supra), no responsibility can be fixed on the DH Smti. Panna Devi Agar-walla so far as the impugned execution petition is concerned as it was verified by a person whose status vis-a-vis the DH is unknown. 7. In view of the discussion made above, I find that the appeal should be allowed and it is hereby allowed. The impugned orders are set aside and the execution case is dismissed.