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TMI Blog1953 (5) TMI 33X X X X Extracts X X X X X X X X Extracts X X X X ..... r the then, outstanding balance thereof by immediate execution. The Solenama further expressly provided in paragraphs 5 and 6 thereof as follows: 5. If the defendant violates any of the terms out of all the terms mentioned before or if he does not make payment according to the terms the plaintiff will be entitled to move against the defendant and to realise the unpaid decretal amount by attachment of the money payable from the defendants' bills or his earnest money or his moveable and immovable properties according to his rights. 6. As a consideration for the plaintiffs allowing the defendant to pay the decretal amount in instalments the defendant keeps the Immovable properties mentioned in the Schedule and owned and possessed by him charged by way of security for payment of the decretal dues. and then followed the Schedule of list of the properties - which were charged. 2. On 8th March 1951, the plaintiff-decree-holder applied for execution of the decree and realisation of his dues by attachment of certain bills and security deposits of the judgment-debtor lying with the Government in its various departments upon the allegation that the said judgment-debtor had fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 26-4-52, there was no appearance on behalf of the judgment-debtor and no objection to further proceedings in execution, the Court on that date recorded an order inter alia to the following effect: Notice served. Requisites filed. Issue notice under Order 21, Rule 66 C.P.C. upon judgment-debtor fixing 21-5-52 for return and orders...... 3. On 5-5-1952 the judgment-debtor appeared and filed an application under Section 47, C.P.C. and his chief objections were: (1) That the execution was premature and in contravention of the terms of the compromise decree. (2) That the notice under Order 21, Rule 22, C.P.C. had not been duly served and the judgment-debtor had been fraudulently denied opportunity to object to the execution in time, and (3) That the order of amendment of the execution petition was illegal and without jurisdiction and the Immovable properties of the judgment-debtor could not in law be proceeded against in that execution. This application was registered as Misc. Case No. 56/52 under Section 47, C.P.C., and was eventually fixed for hearing on 31-5-52. 4. At the hearing no evidence was adduced by the judgment-debtor in support of his objections (1) and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be charged thereby, were not included in the subject-matter of the suit and the decree was not registered. Apparently, this objection on the ground of non-registration of the decree -- if this fact of non-registration is correct and can be found --would possibly be a fatal objection to this part of the decree-holder's case but, upon the facts of the present case, we are unable to entertain it or to give effect to it. It is quite plain that it involves an issue of fact, namely, whether the decree was registered or not. The objection was not taken before the learned Subordinate Judge and, in the circumstances of this case, we are not inclined to allow the judgment-debtor to raise it for the first time in this appeal. Mr. Sarkar's argument, therefore, upon the footing of non-registration of the compromise decree is rejected and we proceed to consider his other arguments. 7. The first question that now requires consideration is whether the learned Subordinate Judge was right in entertaining the Respondent's prayer for addition of the list of Immovable properties to the application for execution and his further prayer for the sale thereof. On behalf of the Appellant, two ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e date of the application for amendment, no question of limitation arises in regard to the decree-holder's right to execute the decree. Cases of gross negligence on the latter's part may disentitle him to the exercise of the Court's discretion in his favour but, in the absence of any such negligence, even where the application for amendment is made apparently beyond the time limited by law for the making of the application for execution but where it could legitimately be treated as a continuance or continuation of the original execution petition the Courts have very often allowed the amendment. (Vide -- 'Gnanendra Kumar v. Shayama Sunder' A.I.R. 1918 Cal. 73 and -- 'Sekendarali Meah v. Abdul Gafur', AIR1942Cal306 . The matter is one of discretion of the executing court (Vide -- 'Abdulla Asghar Ali v. Ganesh Das', -- 'Nourangilal v. Sm. Charubala Dasi', AIR1932Cal766 and --'Rohini Kumar v. Krishna Prasad' 39 CWN 1144 and subject, possibly, as aforesaid, -- that is, except where the law of limitation raises an insuperable bar or where the decree-holder has been guilty of gross negligence, -- and where no equitable consideration stan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e all considered and fully explained in AIR1942Cal308 already cited. This latter case itself was relied upon by the appellant's learned Counsel but, in our opinion, such reliance was misplaced. The case really supports the respondent as here, as in the case cited, the decree-holder has been compelled, by sheer pressure of changed circumstances, to apply for leave, by way of amendment of the execution petition, to proceed against the other properties of the judgment-debtor , on the authority of that decision, therefore, this prayer ought to be granted. In our opinion, the amendment, prayed for in the present case, as in the case cited AIR 1942 Cal 306 (C)', has not the effect of altering the character of the execution proceedings and cannot, therefore, be rejected on that ground. 12. There remains now only the case of 'AIR 1935 Cal 614 (A)'. This case also really supports the view we have taken above and the appellant's argument that in Piramal's case their Lordships were inclined to hold that Order 21, Rule 22, C.P.C. applied also to cases of amendment of execution petitions, even if correct, would at best raise a question of procedure of regularity of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cussed and found in the respondent's favour. The only other objection that may arise on this part of the case treating the decree-holder's prayer as one for a fresh or independent execution -- is on the ground of what may be called simultaneous execution in that, in allowing the decree-holder's prayer, the Court would be permitting him really, or, in substance, to start a second execution, namely, against the judgment-debtor's immovable properties, while the first one viz., that against his moveable assets in the shape of outstanding bills and security deposits, remains [pending. The Code, however, does not prohibit simultaneous execution and the worst that can be said on this matter is that law leaves this question to the discretion of the executing court. In the circumstances of this case, as discussed above, that discretion would be properly exercised if the prayer for simultaneous execution, is allowed. Regarded in this light too, the decree-holder's prayer for proceeding against the Immovable properties of the judgment-debtor cannot but be accepted and the appellant's objection to the entertainment of the same must fail. 15. We, accordingly, overrule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re modification, and his order issuing the sale proclamation must be recalled and the execution must proceed afresh from the initial stage starting with the statutory attachment of the properties to be sold. 18. We have carefully considered the relevant terms 5 and 6 of the compromise decree in their proper context and in our opinion, they ought to be construed as embodying a charge decree --and not a mere declaration of charge, not enforceable in execution -- against the judgment-debtor's Immovable properties, mentioned in the schedule to the Solenama. The language of term 6 of the Solenama may not be quite happy but, reading that term along with the preceding term 5 in the light of the context and the relevant Circumstances, it seems to us clear that the intention of the parties was that the charged properties also would be available to the decree-holder, for realisation of his dues in execution, 19. For the realisation of his said dues, the decree-holder is entitled under term 5 of the Solenama to execute his decree against all the properties of the judgment-debtor (including the disputed charged properties). Term 6 creates the charge over the said charged properties f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot sell the said properties in this execution, or, that at any rate, he cannot sell them in these proceedings as charged properties, that is, without first attaching them under Order 21, Rule 54 of the Code. We hold, therefore, that the learned Subordinate Judge was right, in the facts and circumstances of this case, in ordering sale -- and that also without attachment -- of the disputed properties in the present execution and the appellant's objection against the said order or orders must fail. 22. The view we have taken above is quite in conformity with the trend of judicial decisions in this country. In numerous instances Courts have enforced charges, very much alike the present, in execution of the decree creating the same. Such instances include not only cases of consent decree (Vide: --'Ashutosh Bannerjee v. Lukhimoni Debyar' 19 Cal 139 (PB) --'Indramani Dasi v. Surendra Nath' AIR 1922 Cal 35 (S), --Kashi Chandra v. Priyanath Bakshi', AIR1924Cal645 , -- 'A. C. Dustoor v. H. A. Kandawalla', AIR1934Cal327 , -- 'Ambalal Bapubhai v. Narayan Tatyaba', AIR 1919 Bom 56 (V), --'Shankar Kondappa v. Ganpat Shankar' AIR 1929 Bom 22 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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