BADRI NARAYAN SINGH Vs. KALYAN PRASAD SHROFF

JUDGEMENT

(1.) This appeal by the judgment-debtors arises out of a miscellaneous case started at their instance. The decree-holders respondents levied execution in respect of the balance left unpaid under an instalment decree for a sum of Rs. 17,950/-, passest in their favour in the Court of the learned Sub-ordinate Judge, Deoghar, on foot of a petition of compromise dated 19-8-1937. The amount decreed was to be paid in Six instalments the details where-of were duly set out in the petition of compromise. It was stated in the petition for execution filed by the decree-holders that the original judgment-debtor, Bara Kumar Bhaiya Jagdish Pd. Singh, paid up the instalments in due course leaving a balance of Rs. 4,758/- only when he died. The decree-holders, accordingly, had to take out execution for realisation of the above amount against his heirs. This gave rise to Execution Case No. 11 of 1944. The judgment-debtors objected to the execution on the ground of limitation, which led to the miscellaneous case out of which this appeal has arisen. The learned Subordinate Judge overruled the objection of the judgment-debtors, who have come up in appeal to this Court.

(2.) Learned counsel for the appellants contended that the learned Subordinate Judge should have held that the execution of the decree was barred by limitation when the petition for execution was filed. It is not denied that it was filed on 14-4-1944, and it was received by the Second Officer, Deoghar, and his endorsement thereon is marked Ex. A. The proper Court where the petition for execution should, however, have been filed was the Court of the Sub-divisional Officer, Deoghar, who is vested with the powers of a Subordinate Judge, in so far as the district of Santhal Parganas is concerned, under the Santhal Parganas Justice Regulation, 1893 (5 of 1893). He was out on tour and came back to Deoghar at 10-30 A.M. on 16th of April, after the court-hours, so that the petition was put up before him on 17-4-1944, when he endorsed it as duly presented, vide Ex. B. The due date for payment of the sixth instalment being 14-4-1941, the execution would be clearly time-barred as being beyond three years from the due date, if the filing of the petition for execution before the Second Officer, Deoghar, on 14-4-1944, is found in law not to be a valid presentation. Mr. J.C. Sinha contended that the Second Officer not having been vested with the powers of a Subordinate Judge, the proper course for the decree-holders was to file the petition before the District Judge of Santhal Parganas, if the Sub-divisional Officer-Subordinate Judge was not available at Deoghar. He was the only Court empowered to exercise the jurisdiction of a Subordinate Judge and as such in his absence the decree-holders should have filed the execution petition in the Court of the District Judge in order to save limitation. The decree-holders having failed to present their petition for execution in proper Court in time, the mere fact that it was put on 17-4-1944, should not have been held to be a proper presentation so as to save the bar of limitation. He referred in this connection to the Bengal, Agra and Assam Civil Courts Act, 1887 (Act 12 of 1887), Sections 10, 11 (4) and 14. Section 10 deals with the temporary charge of District Court by an officer in the event of death, resignation or removal of the District Judge, or of his being incapacitated by illness or otherwise for the performance of his duties, or of his absence from the place at which his Court is held. The officer whose absence from the station is relevant for the decision of the present case is not a District Judge, and as such it is unnecessary to refer to this section. Section 11 deals with a similar contingency in the matter of a Subordinate Judge, and as such is relevant for the present case. Clause (1) of Section 11 runs thus:

(3.) The only point for consideration is whether the Second Officer of Deoghar could be said to be the proper officer to receive the execution petition in the absence of the Sub-divisional Officer who exercised the powers of a Subordinate Judge, and in that capacity alone would receive the applications for execution on account of the peculiar provisions of the Santhal Parganas Justice Regulation. Mr. J.C. Sinha contended that either it should have been established that the Second Officer was a proper officer to receive the execution petition in the absence of the Sub-divisional Officer or, in the alternative, the application should have been filed in the Court of the District Judge. It is clear that Deoghar is at a considerable distance from Dumka where the District Judge has his Court located, and accordingly the decree-holders would have to run a long distance to file their application in that Court. In my opinion, however, it is unnecessary to consider the effect of not filing of the present execution petition in the Court of the District Judge, because the matter can be disposed of on the shorter ground of the authority of the Second Officer to entertain the application for execution. The learned Subordinate Judge held that he had such authority on the evidence of opposite party witness 2, Bijoy Kumar Bangia, who said that he was a clerk in Deoghar S.D.O.'s Court since October, 1939. He said further: "The practice is that Second Officer receives plaints and execution petition in absence of S.D.O: on tour and sends them to the S.D.O. on his return." Further, in cross-examination, he said: "On every occasion the S.D.O. goes on tour he leaves behind an order that in his absence the Second Officer will do all his work. "I cannot say if the S.D.O. left such order on 14-4-1944. There was only one Sub Judge in 1944. He was the S.D.O." The learned Subordinate Judge considered the effect of his statement relating to the practice prevailing in that Court as also the fact that Mr. L.L. Sinha, the Second Officer, having signed for the S.D.O. Sub-Judge indicated that he was authorised to do so. Mr. J.C. Sinha contended that in terms of Rule 10 of the General Rules and Circular Orders, it was not enough for the learned Subordinate Judge to hold that there was such a practice, but authority in writing should have been produced on behalf of the decree-holders to show that the Second Officer was authorised to receive plaints and petitions for execution in the absence of the S.D.O. Sub-Judge at Deoghar. It appears, however, that no cross-examination was directed along the line urged by Mr. J. C. Sinha in this Court. When Bijoy Kumar Bangia deposed that there was standing practice that the Second Officer received plaints and execution petitions in the absence of the S.D.O. Sub-Judge on tour, evidently, it followed that it was done in due course. If the judgment-debtors felt that there was no proper authority granted to the Second Officer, this witness should have been cross-examined specifically along the line as to whether there was any such authority granted in writing. If that were so, the decree-holders might be in a better position to adduce clear evidence on the point. This was not done. No doubt, the witness deposed that on every occasion when the Sub-divisional Officer went on tour, he left behind an order that in his absence the Second Officer would do all his work, but he was not asked a further question as to whether the order used to be in writing or not. In the result, the specific point made by Mr. J.C. Sinha on this ground cannot be accepted as a valid ground for holding that the Second Officer had no authority to receive execution applications in the absence of the Sub-divisional Officer. It is also noticeable that although Rule 10 of the General Rules and Circular Orders provides for an order in writing appointing an officer to receive plaints under Order 4, Rule 1, Civil P. C., nothing has been brought to our notice to show that there is any such provision with regard to the execution petitions as well. The argument raised was that execution petitions must be treated on the same footing as the plaint. It is true that normally it should be so but, on the technical point, it must be held that there is no such clear provision with regard to the authority in writing in respect of entertaining an application in execution. In the result, the contention of Mr. J.O. Sinha must fail, and the view of the learned Subordinate Judge overruling the objection on the ground that the Second Officer had no authority must be upheld as correct. In that view of the matter, the decision relied upon by Mr. J.O. Sinha in the case of 'Bhubaneshwari Dasi v. Pulin Krista Rai', 14 Pat 342 : (AIR 1935 Pat 39) (A) is not relevant, as it deals with a different point altogether, namely, the disposal of a suit valued at more than Rs. 1,000/- at a place different from the headquarters.