Research › Search › Judgment

Andhra High Court · body

2001 DIGILAW 1186 (AP)

Bank of India, Visakhapatnam v. Jagannadaraju and Co. , waltair

2001-10-05

L.NARASIMHA REDDY

body2001
( 1 ) IN this revision petition the order dated 31-3-1998 passed in EA No. 226 of 1993 in ep No. 174 of 1992 in O. S. No. 71 of 1974 on the file of the Court of the I Additional senior Civil Judge, Vijayawada is under challenge. ( 2 ) SUIT O. S. No. 71 of 1974 was filed by the revision petitioner herein in the Court of the I Additional Subordinate Judge, visakhapatnam for recovery of certain amounts from the respondent therein. The suit was decreed on 31-1-1976. Thereafter, the petitioner herein filed EP No. 198 of 1988 in the same Court for execution of the decree. The petitioner furnished the particulars of certain movable properties in the EP. ( 3 ) ON coming to know that moveable properties mentioned in the EP are not available, the petitioner wanted to proceed against the immovable properties of the respondent (R-9 ). For that purpose they obtained a precept from the executing court and the EP was transferred to the court of the I Additional Senior Civil Judge, vijayawada, within whose jurisdiction the immoveable properties said to be belonging to the respondent are situated. The petitioner filed an application for attachment of the immovable properties. However, in that application the particulars of immoveable properties have not been mentioned, which the petitioner say, was a mistake. To proceed against the immoveable properties the petitioner herein filed EA No. 226 of 1993 seeking amendment of the prayer in EP. No. 172 of 1992. The application was filed under order 6 Rule 17 of the Civil Procedure code, (for brevity "cpc" ). the executing court i. e. the I Additional Senior Civil judge, Vijayawada by its order dated 31st march 1988 dismissed the EA holding that provisions of Order 6 Rule 17 of CPC are not applicable to the Execution Proceedings. The petitioner has relied upon two judgments of this Court, which dealt with the question of power of the Court to amend the pleadings. The subject matter in the said decisions was amendment of the pleadings, and not the execution proceedings. No other point appears to have been urged before the Court below. The petitioner has relied upon two judgments of this Court, which dealt with the question of power of the Court to amend the pleadings. The subject matter in the said decisions was amendment of the pleadings, and not the execution proceedings. No other point appears to have been urged before the Court below. ( 4 ) IN this revision petition the learned counsel for the petitioner Sri A. Krishnam raju submitted that due to inadvertence a wrong provision was mentioned in the petition, and that the Executing Court has ample power to amend the execution petition under Order 21 Rule 17 of the CPC. He has also placed reliance upon several decisions. ( 5 ) ON the other hand, Sri Aswin Kumar, learned counsel appearing on behalf of sri Y. Rama Rao, learned counsel for the respondents had opposed the revision petition. ( 6 ) ADMITTEDLY, EA No. 226 of 1993 was filed under Order 6 Rule 17 read with section 47 and 151 of C. P. C. Order 6 Rule 17 of CPC deal with amendments to pleadings and by no stretch of imagination the proceedings in the EP can be treated as pleadings. Therefore, the provisions of order 6 Rule 17 have no application to the proceedings in the execution. ( 7 ) WITHOUT standing on technicalities, this petition can be treated as having been filed under Order 21 Rule 17 of CPC. It has to be seen as to whether the proposed amendment is permissible under this provision. Order 21 Rule 17 of C. P. C. has a very limited purpose to serve and its scope is not same as that of Order 6 Rule 17. It enables the Executing Court to ascertain compliance with the requirements of rules 7 to 14 and to enable the parties to remedy the defects, if any, in the petition presented by the decree holder. A reading of sub-rule (1) of Rule 17 of Order 21 of CPC makes this aspect of the matter very clear. It enables the Executing Court to ascertain compliance with the requirements of rules 7 to 14 and to enable the parties to remedy the defects, if any, in the petition presented by the decree holder. A reading of sub-rule (1) of Rule 17 of Order 21 of CPC makes this aspect of the matter very clear. "procedure on receiving application for execution of decree: (1) On receiving an application for the execution of a decree as provided by Rule 11, sub-rule (2), the Court shall ascertain whether such of the requirements of Rules 11 to 14 as may be applicable to the case have been complied with; and if they have not been complied with, the court shall allow the defect to be remedied then and there or within a time to be fixed by it. " ( 8 ) BROADLY speaking it is only at the inception of presentation of the petition that too with regard to the procedural aspects, that recourse can be had to this provision and it does not enable the judgment debtor (sic decreeholder) to substantially alter the nature of the petition at a subsequent stage. ( 9 ) LEARNED counsel for the petitioner placed reliance upon a judgment of Calcutta high Court in Rajendra Prasad Agarwalla v, allahabad Bank (AIR 1987 Calcutta 262) and the contended that the power of the executing Court to amend the EP cannot be restricted to the defects covered in the nature specified in Rules 11 to 14 alone and that the Court has ample jurisdiction to amend the matters which are not covered by Rule 17 also. ( 10 ) I am afraid, whether the judgment of the Calcutta High Court had gone this far and enabled the Executing Court to order any amendment dehors Order 21 Rule 17 of cpc. The Calcutta High Court itself, while summing up the discussion has observed as under:"from the aforesaid decision it is apparent that the principle is now well settled. An amendment of an execution application is not restricted to Order 21 Rule 17 only. Order 21 rule 17, sub-rule (1) contemplates the situation when the application is first filed. The Calcutta High Court itself, while summing up the discussion has observed as under:"from the aforesaid decision it is apparent that the principle is now well settled. An amendment of an execution application is not restricted to Order 21 Rule 17 only. Order 21 rule 17, sub-rule (1) contemplates the situation when the application is first filed. The purpose of the same sub- rule is to allow an opportunity to be given at the very onset of making such application, so that formal defects of the nature specified in Rules 11 to 14 of Order 21 may be rectified. We need not to go into any question of so-called the distinction between sub-rule (1) and sub-rule (4) of Rule 17 as pointed out by the learned single Judge as it is not necessary to do so in the present case. In our opinion this Court has ample jurisdiction to allow an amendment of such application though it is not covered by Rule 17. However. in allowing such amendment the Court has to consider whether it has the effect of substantially altering the character of the execution proceedings. " (emphasis supplied) ( 11 ) FROM the above it is clear that the power of the Executing Court to order amendment even on the aspects other than those covered under Rule 17 is restricted to the inception stage and not at a later stage and that such amendment should not result in substantially altering the character of the execution proceedings. The Calcutta High court in the case cited above had quoted with approval a judgment of the Rajastan high Court reported in Rameshwar Lal Amar chand Choudhary v. Commercial Co-operative bank Ltd. (AIR 1972 Rajasthan 46 ). In that case, the Rajastan High Court had taken a view that if in the execution application a prayer was made for attachment and sale of immovable property and no particulars of immoveable properties are furnished at the time of presentation of the petition, the same cannot be permitted to be supplied later; more so if by the time the particulars of the immoveable properties are furnished, the EP becomes time barred by limitation.- the following observations from the judgment are apt to be cited. ". . . . . . ". . . . . . If, therefore, an execution application prays for the attachment and sale of immovable property, but at the same time no list of immovable property is given, it is non-compliance of Order 21 Rule 13 Civil P. C. and under Order 21 Rule 17 Civil P. C. the executing Court is empowered to get the defect removed at any time, even beyond the limitation of 2 years period, if the execution application is pending. But whether there is no such defect at the initial stage, but later on some more property is sought to be added to the former list with a view- that fresh property may be got attached and sold, then this will be treated as a fresh application and will not be allowed, if filed beyond the period of 12 years from the date of decree. " ( 12 ) THERE is another reason as to why the amendment in the execution petition cannot be altered at a subsequent stage; Order 6 rule 17 of CPC enables the Court to order amendment of the pleadings at any stage which has been interpreted by the Hon ble supreme Court to mean not only during the pendency of the suit but also in appeals and even at SLP stage. Order 21 Rule 17 is not couched in the same language as Order 6 rule 17 CPC. The emphasis in Rule 21 order 17 is more on correction of formal defects. This provision does not clothe the executing Court to amend execution petition at any stage and to enable it to add fresh items of property even after EP becomes time barred. ( 13 ) AS observed earlier Order 21 Rule 17 of CPC enables the executing Court only to cure formal defects by way of amendment. This provision has no role to play once the ep was found in order and was registered. This view of mine is supported by a Full bench Judgment of Allahabad High Court reported in janki Sahu Trust v. Ram Palat (AIR (37) 1950 Allahabad 580 ). Facts in that case by and large are the same as in the present case. This view of mine is supported by a Full bench Judgment of Allahabad High Court reported in janki Sahu Trust v. Ram Palat (AIR (37) 1950 Allahabad 580 ). Facts in that case by and large are the same as in the present case. Dealing with the contentions, the Allahabad High Court observed as under:"it was contended before the lower appellate Court, and the contention was repeated before us, that the application for amendment was one under Order 21, Rule 17, Civil P. C. The application did not purport to be filed under the provisions of Order 21 rule 17 but only under the inherent powers of the Court. Apart from this those provisions have no application whatsoever to the present case. That rule merely lays down that after an application for the execution of the decree as required by Rule 11 (2) of order 2. 1 has been made, the Court is to ascertain whether the requirement of Rules 11 to 14 have been complied with. If those requirements have not been complied with, the Court may either reject the application or may allow the defect to be remedied then and there or within a time to be fixed by it. It is only under sub-rule (2) of rule 17 where an application is amended under the provisions of sub- rule (1), that it shall be deemed to have been an application in accordance with law and presented on the date when it was first presented. The present is, however, not a case of that character. All the requirements of Rules 11 to 14 had been complied with and nothing was left undone. The Court, therefore, admitted the application under sub-rule (4) of Rule 17 and ordered execution of the decree. The application for execution was not wanting in any particulars and the fact that the decree-holder chose to include property in the execution application which was not transferable has no bearing whatever on the question whether requirements of Rules 11 to 14 had been complied with. The plots did exist (in ?) fact but they had ceased to be groves as they were denuded of trees and had, therefore become non- transferable. Sub-rule (2) of Rule 17 applied only when any defects as contemplated under sub-rule (1) exist or are brought to light. The plots did exist (in ?) fact but they had ceased to be groves as they were denuded of trees and had, therefore become non- transferable. Sub-rule (2) of Rule 17 applied only when any defects as contemplated under sub-rule (1) exist or are brought to light. Where no defects exists, as in the present case, no question of amendment arises and the provisions of sub-rules (1) and (2) do not come into operation. In such a case the application is admitted and action for execution taken under sub-rule (4 ). " ( 14 ) IT is not in dispute that if a fresh EP was to have been filed on the date when EA no. 226 of 1993 was filed, in respect of the property that was sought be included by way of amendment that would have been barred by limitation and the same was not permissible in law. What is not permissible directly cannot be permitted to be done indirectly. Thus, viewed from any angle, the application filed by the petitioner herein before the execution Court was not permissible and the executing Court had correctly rejected the application. The order of the Court below does not suffer from any illegality, irregularity; On the other hand it is perfect, correct and valid. The revision petition is therefore dismissed. But in the circumstances, without costs.