TMI Blog1950 (10) TMI 19X X X X Extracts X X X X X X X X Extracts X X X X ..... ction of the decree to the Dist. Judge at Simla, and on 12-11-1946 this certificate was ordered to be sent to the Dist. J. at Simla. An appln. for execution of the decree along with the transfer certificate from the Chittagong Ct. was sent by post to the Dist. J., Ambala, by Mr. Amar Chand Advocate purporting to act on behalf of the decree-holder and this was received by the Dist. J. on 8-12-1946. The appln. is dated 20-11-1946 and is accompanied by two powers-of-attorney, one in Bengali and the other in English. Both, bear the seal of the Eastern Union Bank Ltd., and are signed by one Rabindra Nath Basu claiming to be the Agent of the Dacca Branch. This was sent for execution to the Senior Subordinate Judge, Simla, by post by the learned Dist. J. with the order that the decree-holder should appear before the Senior Subordinate Judge, Simla, on 20-12-1946. 3. On 19-4-1947 the judgment-debtor Dinshaw Framjee through his Pleader Mr. Kartar Chand filed an appln. under Order 47, Rule 1, and Section 151, Code of Civil Procedure praying for time being given for making objections against the execution appln and for cancellation of the attachment which had boon ordered by the learned Ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the forefront of his arguments Mr. Anand Mohan Suri submitted that there was no proper authority to Mr. Amar Chand to execute the decree and there was no proper presentation, as required under the law, of the appln. for execution. On the first part of his submission he has relied upon a copy of the general power-of-attorney which is on the file as Ex. D.H. 4 (A) and is at p. 113. It purports to have been given by Babu Bhushan Mohan Bhattacharjee, son of late Bharat Chandra Bhattaoharjee, Managing Director of the Eastern Union Bank Ltd., Dacca, under Resolution No. (d) dated 24-12-1943 of the Board of Directors of the Bank, but at the bottom of it it does not show who has signed it. The general power-of-attorney was given to Babu Rabindra Nath Bose, son of Babu Khagen Nath dar Bose in the service of the said Bank as Deputy Agent at the Head Office of the Bank at Dacca. It recited: Know all men by these presents that the Eastern Union Bank Ltd.,...do hereby nominate.... Babu Rabindra Nath Bose...to be the true and lawful Attorney of the said Bank at their place of business or at any other place or places in India where the said Bank may have or establish branches or Agencies and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct on behalf of the decree-holder had no authority to do so is raised and the decision turns on the legality and propriety of a power-of-attorney given it is the duty of the parties to produce before the Court proof in favour of their submissions. This objection was taken in the Ct. below and one should have thought that the original power-of-attorney would have been kept on the file or at least a photographic copy or a certified copy of it, would be kept as required under Order 13, Code of Civil Procedure. No such precaution seems to have been taken in this case and the copy which has been produced. I am told, is a true copy and it is so marked under the signatures which are not legible, I must therefore take it that the original power-of-attorney was in favour of Rabindra Nath Bose, that it purported to give him the authority to act at a place where the Bank or its offices were situate and that the original is not signed by the Managing Director and does not bear the soul of this the Company. If these facts are correct, then this power-of-attorney cannot be of much assistance to the decree-holder. If it is not signed by the person authorised to sign on behalf of the Company then ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Amar Chand Advocate to proceed with the execution. 11. The next objection deals with the presentation of the petn. for execution. The execution appln. with the transfer certificate was sent by post to the Dist. J., Ambala. This, according to the Advocate for the judgment-debtors, is no presentation at all. Under Code of Civil Procedure (under Order 21, Rule 10) the decree-holder has to apply to the Ct. which passed the decree, or if the decree has been, sent under the provisions hereinbefore contained to another Court then to such Court or to the proper officer thereof. In this case the appln. was sent to the Dist. J. by post by Mr. Amar Chand purporting to act on behalf of the decree-holder. Even if I were to take it that is a proper mode under Rule 5 of Order 21 of the Code it cannot be said that the appln. for execution was properly filed if it is sent by post. In Ahsan Elahi v. Mehr Elahi 52 P.L.R. 100 : A.I.R. 1950 E.P. 302 it was held that an appln. under Order 22, Rule 4, Code of Civil Procedure must be presented by the applicant in person or by his duly authorised agent or by an Advocate of the High Court. It cannot be sent to the Registrar by post. Such sending by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te which can be taken into consideration for the purposes of limitation. I am, therefore, of opinion that in this case there has been no proper presentation, and on this ground also the judgment-debtors are entitled to succeed. 12. The next objection taken is that the appln. for execution does not contain all the particulars required under Order 21, Rule 11, Code of Civil Procedure. One of the particulars required under this rule is contained in Sub-rule (2)(f) which is : Whether any, and (if any) what, previous applications have been made for the execution of the decree, the dates of such applications and their results. This would show what previous applns. had been filed and how the appln. would be within time. In Col. 6 the decree-holder has said : In the Ct. of Sub-Judge, Chittagong-Transfer, certificate of decree attached. It does not give all the particulars which are required. This lacuna is sought to be filled up by the production of three documents Ex. D.H.1, proceeding of the Patna Ct. dated 14-9-1943, Ex. D.H.2, an order of the Chittagong Ct. dated 18-11-1943, and Ex. D.H.3. another order of the same Ct. dated 12-11-1946. These do not give the particulars that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng taken or an order passed by the Ct. does not, unless there is an appln., bring the case within Clause (5). In this case all that seems to have been done is that a prayer was made to the Chittagong Ct. for issue of a non-satisfaction certificate of the decree to the Dist. Ct., Simla, and the order of the Ct. dated 18-11-1943 was. Certificate prepared today. Let the same be issued and sent to the Dist. J., Simla. Ordered that the Ex. Case be struck off. This does not bring the case within Article 182(5), Limitation Act. The stops taken therefore which terminated in the order of 18-11-1943 cannot help the decree-holder. 14. It was then submitted by the decree-holder that in para. 7 of the objections the judgment-debtors had admitted on 31-7-1948 that the decree was being executed in the Ct. of the Dist. J., Patna, and therefore it cannot be said that the execution appln. was barred by time. The explanation given by Mr. Suri is that this was an objection to the jurisdiction of the Chittagong Ct. in sending a transfer certificate to the Dist. J., Simla, as it had not received the result of execution at Patna at the time and therefore had no jurisdiction. Whatever be the m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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