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1950 (10) TMI 19

₹ 9816-4-0 and costs ₹ 1,130-0-9 was passed against D.H.M. Framjee, K.D. Framjee and one Sultan Ahmad in the Ct. of the Subordinate Judge, Chittagong, now in East Bengal. Some time later this decree was transferred for execution to the Dist. J., Patna, who ordered that the decree could be executed in Patna, Chittagong and Simla simultaneously. On 27-9-1943 the decree-holder made an application to the Sub-Judge executing the decree in Chittagong praying for the issue of a certificate of non-satisfaction to the Dist. Ct. Simla, and on 18-11-1943 this certificate was issued by the learned Judge of the Chittagong Ct. What happened to this certificate is not quite clear and whether it was sent to Simla or not has not been stated. 2. On 16-9-1947 the decree-holder made another appln. for sending a certificate of non-satisfaction 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 w .....

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Chand Advocate was not validly executed and what is its effect? 5. The learned Subordinate Judge held (1) that the execution appln. was properly presented; (2) that the omission of certain particulars did not make the appln. SO defective as to be regarded as being no appln. at all and that the person who gave the power-of-attorney to the Advocate was properly authorised and therefore he decided both issues 2 and 5 in favour of the decree-holder; and (3) that simultaneous execution applications could be proceeded with and that the present execution appln. was within time. He therefore overruled the objections of the judgment-debtors and ordered the attachment of the property of the judgment-debtors to be proceeded with. Against this order the judgment, debtors have come up in appeal to this Ct. 6. In 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 pu .....

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s the seal of the Bank on it. I asked the Advocate for the decree-holder where the original was and his explanation was that in spite of his having asked for the original he has not been able to get it. As a matter of fact, I find that an appln, was made by the judgment-debtors on 10-10-1949 asking for the original of this to be produced and notice was issued to the decree-holder's Advocate on 14-3-1950, and on 29 March Soni J., gave six weeks' time for this document to be produced. On 10-5-1950, another six weeks' time was given by my brother Harnam Singh J. and on 5-7-1950 I gave a month's time but on 22-8-1950 Khosla J. refused to give any more time and the case was set down for hearing. 8. When an objection that the person who originally authorised the Advocate to act 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 pho .....

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d of attack does seem to have force and I must hold that Rabindra Nath Bose could only start proceedings where an office of the Bank was situate and in no other part of India. 10. The third objection was that the power of attorney is not signed and sealed as required under the law. This is a point which I have already discussed and I think this is not without substance. The copy of the power-of-attorney which has been produced before me does not show that the original power-of-attorney given to Rabindra Nath Bose was a proper one and therefore, as I have said before, it is nothing more than a sheet of waste paper and confers no power on Rabindra Nath Bose. On this ground therefore I must allow the objection of the judgment-debtors that there was no properly authorised power given to 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. .....

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78 : (113 I.C. 781), where an appln. for execution was filed by the decree-holder's son without a power-of-attorney from the father and even after appearance of the judgment debtor the latter raised no objection to the propriety of the execution appln: and subsequently before the period of limitation was over a power-of-attorney was filed, and it was held that this appln. for execution was a proper one and the executing Ct. had full power to proceed with the execution. The facts of the case here are quite different. The execution appln. was sent by post which was not a proper presentation to the learned Dist. J. and if the appln. has to be taken to have been filed on 20-12-1946 then it was barred by time having been presented more than three years after the last date 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 und .....

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ven these documents do not show as to what exactly had happened in this case. On this ground also the judgment-debtors are entitled to succeed. 13. A further objection taken was that the appln. for execution is barred by time. The decree, it was submitted, is of 14-12-1938 and the appln. for grant of certificate which was made to the Chittagong Ct. is dated 27-9-1943 and the certificate was granted on 18-11-1943. This may or may not have been a stop-in-aid but it was not accompanied by an appln. and therefore the step-in-aid for the purpose of limitation is valueless; see the discussion on this point at p. 1735 of Rustoraji's Limitation Act, vol. II where it is stated: Under Clause 5 there must be an appln. to the proper Ct.; the mere fact of a step-in-aid being 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 .....

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