1950 (10) TMI 19 - HC - Indian Laws

Summary

Issues Involved:
1. Proper presentation of the execution application.
2. Validity of the power-of-attorney.
3. Timeliness of the execution application.
4. Compliance with Order 21, Rule 11 of the Code of Civil Procedure.
5. Authority to transfer the decree without certification from the Chittagong Court.

Issue-wise Detailed Analysis:

1. Proper Presentation of the Execution Application:
The execution application was sent by post to the District Judge, Ambala, which was contested as improper presentation. Under Order 21, Rule 10 of the Code of Civil Procedure, the decree-holder must apply to the court that passed the decree or to the proper officer thereof. The court held that sending the application by post did not constitute proper presentation. The court referenced the case of *Ahsan Elahi v. Mehr Elahi*, which established that applications must be presented in person, by an authorized agent, or by an advocate, not by post. Consequently, the court concluded that the application was not properly presented, rendering it invalid.

2. Validity of the Power-of-Attorney:
The power-of-attorney given to Mr. Amar Chand was scrutinized for validity. The document purportedly authorized by Babu Bhushan Mohan Bhattacharjee, Managing Director of the Eastern Union Bank Ltd., lacked signatures and the bank's seal. The court emphasized the necessity for strict adherence to the requirements for a power-of-attorney, citing *Bowstead on Agency*. The court found that the power-of-attorney did not meet legal standards and thus was ineffective in authorizing Mr. Amar Chand to act on behalf of the decree-holder. This invalidity meant that Mr. Amar Chand had no authority to proceed with the execution.

3. Timeliness of the Execution Application:
The timeliness of the execution application was challenged. The decree dated 14-12-1938 required an application within the statutory period. The application for a non-satisfaction certificate on 27-9-1943 and its issuance on 18-11-1943 were not accompanied by a proper application, thus failing to qualify as a step-in-aid under Article 182(5) of the Limitation Act. The court found that the application filed on 20-12-1946 was beyond the three-year limitation period, making it time-barred.

4. Compliance with Order 21, Rule 11 of the Code of Civil Procedure:
The execution application lacked necessary particulars as mandated by Order 21, Rule 11, specifically Sub-rule (2)(f), which requires details of previous execution applications. The court noted that the application only mentioned a transfer certificate from Chittagong without adequate particulars. Documents submitted later (Ex. D.H.1 to D.H.3) were insufficient to remedy this defect. The court held that non-compliance with these requirements constituted gross negligence, leading to the rejection of the application under Rule 17 of Order 21.

5. Authority to Transfer the Decree Without Certification from the Chittagong Court:
The judgment-debtors argued that the Chittagong Court had no jurisdiction to transfer the decree to Simla without certifying the execution result from Patna. The court acknowledged this procedural lapse, reinforcing the judgment-debtors' position that the transfer was unauthorized and procedurally flawed.

Conclusion:
The court allowed the appeal, finding that the execution application was improperly presented, the power-of-attorney was invalid, the application was time-barred, and it failed to comply with procedural requirements. Consequently, the objections of the judgment-debtors were upheld, and the execution proceedings were deemed invalid. Each party was ordered to bear their own costs.