TMI Blog1951 (4) TMI 29X X X X Extracts X X X X X X X X Extracts X X X X ..... t by the decree-holders therein. By that petition, a question was raised by the judgment-debtor that the decree obtained against his father was not executable against him, without determination of the question whether the mortgage on which the decree was based was for legal necessity. The learned Subordinate Judge decided that the present appellant was not entitled to raise the question in the course of the execution proceedings, but could do so only by a separate suit. It is against this order that the judgment-debtor has brought up the appeal pending in this Court against the decree-holders. They are 13 in number and at the date of the decree appear to have been members of a joint family. The two persons now sought to be impleaded as party-respondents were on the record of the Executing Court as joint-decree-holders by the date when the order appealed against, was passed by the learned Subordinate Judge. Out of them, the first Rajendra Prasad Bhagat was the original 4th decree-holder. The second Kamala Devi is the daughter of the original 5th decree-holder, Laxmi prasad Bhagat. Consequent on his death on 11-4-1947, she was substituted in his place in the execution proceedings by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mistake as regards not impleading Rajendra Prasad Bhagat also was discovered. The present application for amendment of the cause-title has accordingly been filed both as regards Kamala Devi and Rajendra prasad Bhagat. 3. The application is opposed on behalf of both the parties sought to be impleaded. It is strenuously urged that so far as the Advocate who has filed the appeal and who has also filed the affidavit swearing to this position is concerned, he may have done, what he did bona fide, but that does not absolve the judgment-debtor himself, nor entitle him to bring on record, by way of an amendment these two persons as respondents at a time when a fresh appeal, if filed, against them, would be time-barred. It has been strenuously urged that the discretion of the Court in such matters must be exercised with the same strictness which governs an application under Section 5 of the Limitation Act. 4. The mistake in not impleading the two persons in the original appeal memorandum appears to have arisen on account of two circumstances : (1) The certified copy of the order appealed against does not show the names of all the decree-holders in full, but, mentions only the names of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge of the death of respondent No. 4, until information was received from his Advocate at Cuttack for taking steps for substitution in the place of Laxmi Prasad Bhagat. He virtually reiterates the same in his present affidavit. His competence to depose in his affidavit to the fact that the judgment-debtor was not aware of the death of Laxmi prasad Bhagat has not been controverted by any counter-affidavit on this application. In the prior counter-affidavits what all is alleged amounts to saying that the judgment-debtor must have been aware in view of the substitution proceedings. Where, as in the present case the substitution proceedings are in respect of one of the many junior members of a family which has been probably dealing with the judgment-debtor through its managing member the 1st decree-holder, and where the litigation on behalf of the judgment-debtor appears to have been attended to by a law-agent, it cannot be assumed as a matter of course, that the judgment-debtor in person must have been necessarily aware of the death of such junior member, especially, where as in this case, there is an affidavit stating that he was not aware. All that can be assumed is that the law-agen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l names of all the parties. So far as the omission of the name of Rajendra Prasad Bhagat is concerned, a close and careful scrutiny of the private copy of the execution application which appears to have been taken as the basis for the cause-title of the appeal memorandum would have disclosed that the 4th decree-holder's name has been omitted to be typed. This mistake could have been avoided if Mr. Chatterjee had given his personal attention to the same. But, I am not pre-pared to say, having regard to the standards of personal scrutiny that may be reasonably expected and obtains as a fact : amongst lawyers of the standing of Mr. Chatterjee, this omission might not have bona fide escaped his notice. I am unable therefore to impute to him unreasonable negligence in this respect. As regards the non-mention of Kamala Devi as a party respondent in the original appeal, the responsibility for it cannot be laid at the door of Mr. Chatterjee since the copy of the execution petition acted upon continued to show Laxmi Prasad Bhagat as one of the decree-holders. Both the mistakes would have been avoided if the office copy maintained by the judgment-debtor's lawyer in the Court below ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mistake which caused the delay resulted from the legal advice given by the lawyer on which the litigant acted, but there is no reason to make any distinction, between lawyer's mistake of one kind and another, in the course of the discharge of his duties, except that on the facts of a case a mistaken legal advice may be less due to unreasonable negligence, than any other kind of mistake. The principle of these cases is that the litigant having placed the matter in the hands of a competent lawyer should not ordinarily suffer for any mistake which arose out of the normal and reasonable discharge of the lawyer's duties. In applying this principle Courts have viewed the mistake of a lawyer with certain latitude not because of any partiality or professional bias, but in order that the litigant should not be unduly penalised for the mistake of the lawyer who in one sense is an officer of the Court itself. This is not necessarily to say that as a matter of law the mistake of lawyer will be always excused, unless it positively amounts to gross or culpable negligence. But a certain differentiation in standard is inevitable in the larger interests of justice where the exercise of disc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 153 of the Civil P. C. It is true that in theory the appeal can be taken as having been filed against the person whose name has been brought on the amendment only on the date of the amendment. In that sense, therefore, considerations germane to Section 5 of the Limitation Act are not altogether out of place, on an application for amendment under Section 153 when it is beyond time. But it is to be remembered that in a case where the appeal has, in fact, been filed in time, but there has been a mistake in the array of parties, particularly as regards respondents, there can be no doubt that the appeal itself must have been intended to be filed as against all the necessary parties and the mistake is more often bona fide than not. In that respect it stands on a different footing, from an appeal not filed at all against any person until after limitation. In the latter cases it has been laid down that every day of delay has to be adequately explained. But it is not necessary to express any final opinion on this matter, because in the present case no question of prejudice to substantive vested rights of the parties sought to be impleaded is involved as stated at the outset, the only quest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 30-9-47 passed an order directing the substitution of her name in place of that of her father. The judgment-debtor subsequently died and was succeeded by his son, the petitioner. An objection under Section 47 of the Civil P. C. was filed by him against the execution of the decree and this was disposed of by the executing Court on 18-7-49. The petitioner then filed an appeal against that order on 11-10-49 but strangely enough omitted in his memorandum of appeal to implead Kamala Devi as one of the respondent-decree-holders though she had been substituted in place of her father Laxmi Prasad Bhagat as early as 1947. He also omitted to implead one Rajendra Prasad Bhagat who was admittedly decree-holder No. 4. He then filed a petition under Section 5 of the Limitation Act read, with Sections 151 and 153, Civil P. C., on 25-9-50; more than eleven months after the filing of the appeal. 17. The principles to be observed in exercising discretion under Section 5 of the Limitation Act are well settled. Where the applicant has acted in good faith with reasonable diligence in prosecution of the proceeding there may be a good ground for exercising the discretion in his favour. But where eithe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on receipt of information from his Advocate. In his subsequent affidavit dated 25-9-50 the secretary has slightly changed his version and stated that he could not recollect that the respondent referred to in the process-server's return was the decree-holder about whose legal representativeship there was an enquiry and order in the lower Court'. This passage in the affidavit indicates clearly that the petitioner's Secretary was fully aware of the enquiry and the order passed by the lower Court in 1947 substituting the name of Kamala Devi in place of Laxmi Prasad Bhagat. As already pointed out the judgment-debtor contested her substitution and it will be fantastic to say that he or his agent was not aware of the death of Laxmi Prasad Bhagat'. My learned brother while realising the force of this argument has however pointed out that 'there is nothing- to show that the same agent who was attending to the substitution proceedings was connected with the sending of Instructions for filing the present appeal'. Section 5 of the Limitation Act casts on the party who wants the Court to exercise its discretion under that section the burden of satisfying the Court that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed and this was obviously due to the negligence of the clerk of Mr. P. C. Chatterji who did not carefully compare the uncertified copy of the decree with the memorandum of appeal before submitting it to Mr. Chatterji for his signature. Mr. Chatterji as a busy practitioner may not be expected personally to make such a comparison of a purely clerical nature. But as he has signed the memorandum of appeal he must take the responsibility for any error or omission in it, though it might primarily be due to the negligence of his clerk. The circumstances under which the mistake of a Counsel may be a sufficient cause for the purpose of Section 5 of the Limitation Act have been fully discussed in 'NRI-SINGHA CHARAN V. TRIGUNAND JHA' referred to by my learned brother. That decision however dealt with mistakes on questions of law which, in my opinion, stand on a fundamentally different footing from mistakes of facts. It is well known that on many difficult questions of law there is a conflict of decisions and it is difficult for any Counsel to anticipate what view a Judge would take. No amount of care or diligence on his part would therefore suffice and in such circumstances there may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eat respect, I am unable to agree with these observations. The order appealed against was an order under Section 47, Civil P. C. It is true that the definition of the expression 'decree' as given in Section 2(2) of the Civil P. C. includes the determination of any question within Section 47, C. P. C. But Rule 6 of Order XX which requires the names of all parties to be shown in the decree in terms applies to decrees in suits. As far as I am aware there is no provision in the Civil P. C. which requires that a decree showing the names of all the parties should be drawn up when the executing Court passes an order on a petition under Section 47, Civil P. C. The General Rules and Circular Orders (Civil) of the Orissa High Court do not require the subordinate Courts to prepare decrees in such cases (see Rule 11(1) of Chap. V Part I). Therefore the certified copy of the order appealed against was prepared in the subordinate Court in accordance with the rules in force in this State and it cannot be said that there was any laxity of practice in that Court. 22. For the aforesaid reasons, left to myself, I would have rejected the petition. But my learned brother seems inclined to ex ..... X X X X Extracts X X X X X X X X Extracts X X X X
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