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2015 DIGILAW 1915 (MAD)

Jayaraj v. Chockalingam Chettiar

2015-04-16

K.K.SASIDHARAN

body2015
JUDGMENT :- 1. THE ISSUE: Whether an application for amendment of Execution Petition is maintainable at any stage other than those mentioned in Rule 17 of Order 21 of the Code of Civil Procedure, 1908, is the core issue that arises for consideration in this Civil Revision Petition. BRIEF FACTS: 2. The respondent filed a suit in O.S.No.29 of 1988 against the petitioner before the learned District Munsif, Aranthangi, praying for a money decree. The suit was decreed, by judgment and decree dated 21.11.1988. Since the petitioner failed to satisfy the decree, the respondent filed an application for execution in E.P.No.44 of 2004. The respondent prayed for an order to arrest the petitioner. During the currency of the Execution Petition, the respondent filed an application in E.A.No.54 of 2004, to amend the Execution Petition to incorporate a prayer for attachment and sale of the property owned by the petitioner. The Trial Court allowed the application for amendment, by order dated 05 November, 2004. The Interlocutory Order is challenged by the petitioner primarily on the ground that the Executing Court has no power to direct amendment of Execution Petition. SUBMISSIONS: 3. The learned counsel for the petitioner contended that the Execution Petition is not in the nature of a civil proceeding and as such, Order 6 Rule 17 of the Code of Civil Procedure, 1908, is not applicable to the Execution Petition. According to the learned counsel, in case the decree holder has prayed for a particular mode of recovery in the Execution Petition, he should prosecute it till its logical end. It was contended that there is no provision permitting amendment of Execution Petition seeking another mode of execution. 4. The learned counsel for the respondent justified the order passed by the Executing Court. According to the learned counsel, the Executing Court is having inherent power to permit amendments to do complete justice. DISCUSSION: 5. The core question that arises for consideration is as to whether the Executing Court was correct in allowing amendment of the Execution Petition to incorporate a prayer for attachment and sale of property in the place of the earlier prayer for arrest of the judgment debtor. 6. Order 21 of the Code of Civil Procedure, 1908, provides for execution of decrees and orders. Order 21 Rule 11(2) provides for written application to execute the decree or order. 6. Order 21 of the Code of Civil Procedure, 1908, provides for execution of decrees and orders. Order 21 Rule 11(2) provides for written application to execute the decree or order. This provision very clearly provides that the Execution Petition should contain the particulars of the mode in which the decree holder wanted the assistance of the Court whether by the delivery of any property specifically decreed; or by attachment, or by attachment and sale, or by sale without attachment, of any property; or by the arrest and detention in civil prison of any person. Order 21 Rule 17 provides that on receiving an application for execution of a decree, as provided by Rule 11(2), the Court shall ascertain whether such of the requirements of Rules 11 to 14, as the case may be, have been complied with. In case the decree holder has not complied with the requirements of Rules 11 to 14, he would be given time to remedy the defect within a particular period. Sub-Rule (1-A) of Rule 17 provides that in case the defect is not remedied, the Court shall reject the application. Therefore, it is clear that during the initial stages, it is possible for the decree holder to amend the Execution Petition. 7. It is true that the Execution Petition is not in the nature of a pleading and as such, strictly, the provisions of Order 6 Rule 17 are not applicable. 8. Section 151 of the Code of Civil Procedure, 1908, saves the power of the Court to make such orders as may be necessary for the ends of justice. Similarly, Section 153 of the Code of Civil Procedure, 1908, gives general power to the Civil Court to amend any defect or error in any proceeding in a suit. The word used is "any proceeding in a suit". It would, therefore, include even an Execution Petition. 9. The Legislature is not expected to incorporate provisions to meet the contingencies that would arise in future. When an unprovided contingency arises and the Civil Court is satisfied that to render justice, technicality should not come in the way, the Court can take recourse to Sections 151 and 153 of the Code of Civil Procedure, 1908, to tackle such situation. 10. In case amendment of Execution Petition is not permitted, it would cause substantial prejudice to the decree holder. 10. In case amendment of Execution Petition is not permitted, it would cause substantial prejudice to the decree holder. In case the decree holder, as in the present case, initially asked the Executing Court to arrest and put the judgment debtor in civil prison for realization of the amount and if it is made out subsequently that he is having property and it would be better to attach it for realization of the amount, he should be permitted to amend the Execution Petition, as otherwise, it would result in injustice. 11. In Rohini Kumar Roy v. Krishna Prasad [(1935) 39 CWN 1144], the Calcutta High Court observed thus: "An application for execution was put in any one of the decree-holders and the prayer was for execution not of the whole decree but in respect of the share of the applicant, that is to say, the application was not in the form prescribed by O.21, R.15 of the Code. The judgment-debtor filed an application under S.47 of the Code stating that the application was not in order and the execution could not proceed on the said application as one of the several joint decree-holders was not entitled to pray for execution in respect of his share of decree but was bound to pray for execution of the whole decree for the benefit of himself and the other decree-holders. The learned Munsif gave effect to that objection and dismissed the application. In the appeal the decree-holder prayed for amendment of his application for execution and he stated that he wished to proceed for the realisation of the entire amount due under the decree for his benefit and for the benefit of the other decree-holders. The learned Subordinate Judge, who heard the appeal, allowed the same and remanded the case to the Court of first instance in order that execution might be proceeded with after necessary amendment of the application for execution. Against the said order the judgment-debtor preferred an appeal to this Court and contended that the learned Subordinate Judge had no power to direct the said amendment as the power of an executing Court in respect of amendments were defined in O.21, R.17 and in no case applications for amendment should be allowed which did not fall within the scope of the said rule. In rejecting the said contention a Division Bench of this Court held that the Civil P.C. was not exhaustive and there was always the powers of the Court to make orders in the interest of justice. It further held that Ss.151 and 153 of the Code entitled the Court to allow an amendment of a petition for execution of a decree in the interest of justice. Since the Court found that the objection was of a technical nature, it dismissed the appeal preferred against the amendment." 12. In A.C.Sanyal v. R.M.Moitra [(1975) 79 CWN 546], similar issue came up before the Calcutta High Court. The relevant observation reads thus: "The decree-holders filed two applications for execution of a money decree with a prayer for arrest and detention of the judgment-debtor. After sometime each of the two decree-holders asked for assistance of the executing Court for realisation of the decretal sum by attachment and sale of immovable properties of the judgment-debtor though that prayer was not initially made in any of the two applications for execution. That prayer was allowed and when attachment of the immovable properties of the judgment-debtor was made, the decree-holders came to know that the said properties were subject to attachment in execution of another decree for a large amount. The decree-holders thereafter applied again before the executing Court for amendment of the execution applications seeking assistance of the court by attachment and sale of movable properties of the judgment-debtors. As the prayer was allowed the judgment-debtor preferred an application under S.151 of the Code. The matter ultimately came up to this Court and this Court rejecting the contention of the judgment-debtor, held that the decree-holders, when filing applications initially might have asked for all or any of the five modes of assistance provided in Cl.(J) of sub-rule (2) of R.11 of O.21, but he asked for assistance by only one of those several modes and that should not be any ground for rejecting his application for amendment seeking assistance in other modes. The court held that the executing Court had ample powers under Ss.151 and 153 of the Code to allow an amendment of petition for execution of a decree filed under O.21, R.11 of the Code and relied upon the cases of Kalipada Sinha and Rohini Kumar Roy (supra)." 13. The Code of Civil Procedure, 1908 governs the proceedings in civil litigations. The Code of Civil Procedure, 1908 governs the proceedings in civil litigations. The procedure is handmaid. The procedural provisions should assist the parties to enjoy the fruits of the decree. The Civil Courts are existing only for rendering justice and not for denial of justice on technical grounds. PROCEDURAL LAWS - TO ADVANCE CAUSE OF JUSTICE: 14.The Supreme Court in R.N.Jadi & Brothers vs. Subhashchandra reported in2007(9) Scale 202 observed that the procedural law is always sub-servant and is in aid to justice and held thus: "9. All the rules of procedure are the handmaid of justice. The language employed by the draftsman of processual law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the Statute, the provisions of the CPC or any other procedural enactment ought not to be construed in a manner which would leave the Court helpless to meet extraordinary situations in the ends of justice. 10. The mortality of justice at the hands of law troubles a Judge's conscience and points an angry interrogation at the law reformer. 11.................... 12.............................................................. A procedural law should not ordinarily be construed as mandatory, the procedural law is always subservient to and is in aid to justice. Any interpretation which eludes or frustrates the recipient of justice is not to be followed. [See Shreenath and Anr v. Rajesh and Others ( AIR 1998 SC 1827 )]. 13. Processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. Procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice. 15. The Supreme Court in Rajendra Prasad Gupta vs. Prakash Chandra Mishra & Ors [2011(1) Scale 469] indicated the scope of Section 151 of the Code of Civil Procedure. The Supreme Court observed thus: "5. Rules of procedure are handmaids of justice. Section 151 of the Code of Civil Procedure gives inherent powers to the court to do justice. That provision has to be interpreted to mean that every procedure is permitted to the court for doing justice unless expressly prohibited, and not that every procedure is prohibited unless expressly permitted. Rules of procedure are handmaids of justice. Section 151 of the Code of Civil Procedure gives inherent powers to the court to do justice. That provision has to be interpreted to mean that every procedure is permitted to the court for doing justice unless expressly prohibited, and not that every procedure is prohibited unless expressly permitted. There is no express bar in filing an application for withdrawal of the withdrawal application." 16. The Supreme Court in Mahadev Govind Gharge vs. Spl. Land Acquisition Officer reported in 2011(6) Scale 1, observed that it is an undisputed principle of law that the procedural laws are primarily intended to achieve the ends of justice and, normally, not to shut the doors of justice for the parties at the very threshold. 17. The decree holder is given an option to seek anyone of the modes for execution. Merely because the decree holder has availed one particular mode of execution, it cannot be said that he is disentitled, at a later point of time, to amend the Execution Petition, seeking another mode of recovery. Amendment of Execution Petition is, therefore, permissible, by invoking the provisions of Sections 151 and 153 of the Code of Civil Procedure, 1908. 18. The respondent initially requested the Executing Court to arrest the petitioner and put him in civil prison. Subsequently, the respondent sought to change the mode by attachment and sale of the property. The petitioner would be justified in his contention only in case the amendment completely changed the nature and character of the Execution Petition. 19. In Sabitri Bala v. Alak Ranjan [AIR 1980 Calcutta 249], a learned Judge of Calcutta High Court held that in case the amendment would completely change the nature and character of the Execution Application and it was not one of those amendments, which was of a technical in nature, such amendments are not permissible. Therefore, it is clear that amendment of Execution Petition is the rule, unless it is demonstrated that on account of amendment, the very Execution Petition would undergo a sea change, or otherwise, it would change the very nature and character of the Execution Proceedings. 20. The respondent obtained a decree as early as on 21.11.1988. The decree has become final. The respondent is still wandering the corridors of this Court to execute the decree. DISPOSITION: 21. 20. The respondent obtained a decree as early as on 21.11.1988. The decree has become final. The respondent is still wandering the corridors of this Court to execute the decree. DISPOSITION: 21. The petitioner is given three months time to discharge the debt with interest at 9% per annum. In case the decree is not satisfied, within the time indicated above, it is open to the Executing Court to proceed with the Execution Petition. 22. The Civil Revision Petition is disposed of with the above direction. No costs. Consequently, the connected miscellaneous petition is closed.