TMI Blog1942 (8) TMI 9X X X X Extracts X X X X X X X X Extracts X X X X ..... n Land Rent Village Thana Pargana. 203. 494 Fulbari 69. Fatehpur Singhia Nankar. P.S. Bahadurganj. Under Tauzi No. 8/5. Rent payable to Common Managar, Balua estate. 3. The amendment was allowed ex parte, but on 6th May 1941 the judgment-debtor appeared in Court and presented an application asking the Subordinate Judge to recall his ex parte order directing the amendment of the execution petition by including in it the property already referred to. The learned Subordinate Judge granted the prayer of the judgment-debtor and hence the present appeal. The learned Subordinate Judge has stated in his order that the amendment was allowed by him ex parte as it was not brought to his notice that at the time when the application for the amendment was made by the decree-holder his decree had already become time-barred under Section 48, Civil P.C. The view taken by him was that the order allowing the amendment was ultra vires and therefore it was fit to be cancelled. The learned Subordinate Judge also expressed the opinion that the execution cannot proceed against property No. 6. 4. Now, the first point raised on behalf of the decree-holder is that the learned Subordinate Judge had no p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ime. Order 21, Rule 17, Sub-rule (1), Civil P.C., provides as follows: 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 may reject the application, or may allow the defect to be remedied then and there or within a time to be fixed by it. 6. Sub-rule (2) of the same Order provides: Where an application is amended under the provisions of Sub-rule (1) it shall be deemed to have been an application in accordance with law and presented on the date when it was first presented. 7. It is contended that the amendment in the present case fell within Rule 17, because the requirements of Rule. 13 had not been complied with. This rule requires that where an application is made for the attachment of any immovable property belonging to a judgment-debtor it shall contain a description of such property sufficient to identify the same and also a specification of the judgment-debtor's share or interest in such property. The learned advocate for the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch details as the number of the suit, names of the parties, the date of the decree, etc., in his application and if upon scrutiny of his application it appears that any of these details is missing in the application, the Court may give an opportunity to the decree-holder to remedy the defect. Similarly, what Order 21, Rule 13 contemplates is that the property which is sought to be attached should be described in such a way in the application for attachment as to show that the property is identifiable. If, therefore, there are found wanting in the description such details as are necessary for the proper identification of the property, the Court has full power to allow the decree-holder to remove the defect by supplying such details. Rule 17, however, was never intended in my opinion to enable the decree-holder to ask the Court to delete from his application a property which is fully described and to substitute in place thereof another property with a totally different description. In my opinion therefore the present case cannot be said to be covered by Order 21, Rule 17. 10. The next question to be considered is whether the application made by the decree-holder on 20th March 1941 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suf Hasan AIR1934All481 . The first case was referred to by Kulwant Sahay J. in his judgment in Jagannath Das v. Chamu Raghunath A.I.R. 1929 Pat. 407 and the learned Judge observed in the course of his judgment that if that case was meant to be an authority that an application for amendment of a pending application filed after the period of limitation can be entertained such a view was directly opposed to the decision of the Full Bench in Asgar Ali v. Triloikya Nath Ghose (90) 17 Cal. 631 to which no reference was made by the learned Judges who decided it. The third case was a decision by a Single Judge who purported to follow among others the decision of this Court in Sheogobind Ram v. Mt. Kishunbasi Kuer A.I.R. 1932 Pat. 222 which, in my opinion, can be easily distinguished on the ground that in that case it was held that the amendment in question had been made under Order 21, Rule 17, Civil P.C. That was a case in which an application for execution was filed against a deceased judgment-debtor in the first instance and subsequently leave was granted by the Court to substitute on the record her heir. The learned Judges who decided that case pointed out that as soon as the defect w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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