- (1.) THIS appeal is by the judgment-debtor defendant No. 6 and is against the judgment and order dated 6th March, 1973 passed by A. K. Sarkar J. allowing an application for execution of the decree for costs awarded, in favour of the defendant Nos. 1, 2 and 3.
(2.) THE facts giving rise to the execution application are briefly as follows: In 1951 one Ramanath Das and others instituted a suit being suit No. 3367 of 1951 in this Court against the defendants. That suit was dismissed with costs on the 1st May 1959 and it was decreed that the plaintiff and the defendants sailesh Chowdhury, since deceased, and Shyamapada Choudhury, the present appellant, do pay to the defendant Nos. 1, 2 and 3 their costs of the suit including the reserve costs and costs of commission to be taxed by the Taxing Officer of this Court. Against the said decree the plaintiff alone preferred an appeal. The appeal was dismissed only with this modification that the decree awarding costs against the plaintiff was set aside and the rest of the decree was affirmed on June 7, 1962. It is admitted by both parties that there was no stay of operation of the decree passed by the trial court nor was there any injunction restraining the defendant Nos. 1, 2 and 3 from executing the decree for costs. On August 14, 1963, the decree for costs was taxed in the sum of Rs. 18,538. 56p. and allocature was issued by the Taxing Officer. On 2nd May, 1972 a tabular statement supported by an affidavit of Sri P. K. Roy Choudhury was filed for execution of the said decree for costs on behalf of the decree-holders. In the said tabular statement the decree-holder prayed, inter alia, for attachment and sale of premises No. 1, Raja Naba Kissen Street, Calcutta, belonging to the defendant Shyamapada Choudhury. This application for execution was opposed on behalf of the defendant No. 6 the judgment-debtor who is the appellant in this appeal. The trial court overruled the objections urged on behalf of the judgment-debtor and allowed the application for execution. The defendant No. 6 has come up on appeal against the said judgment and order of the trial court.
(3.) MR. P. K. Dutt. learned Counsel appearing on behalf of the appellant has, in the first place, urged that the present application for execution is not maintainable as it is not in compliance with Rule 10 of Chapter XVII of the original Side Rules of this Court. He has contended that Rule10 of Chapter XVII Is mandatory and non-compliance with are of the clauses is fatal to the maintainability of the application for execution. According to him, clause (c) of Rule 10 not having been complied with the execution application is not maintainable. Rule 10 and clause (c) thereof of Chapter XVII are in the following terms :- "10. The application for execution whether the provisions of O. XXI, r. 22 of the Code, apply or not, shall be in Form No. 1, and shall be on a sheet of durable paper of good quality foolscap size, and shall, in addition to the particulars mentioned in O. XXI. R. 11 of the Code, contain the following: - (c) A statement of the estimated value of the property sought to be attached, or, if such property is encumbered, the value thereof after providing for the satisfaction of the encumbrances. In all cases, the application shall be accompanied by a duly certified copy of the decree. " In support of this contention Mr. Dutt has drawn our attention to the decision in Satyendra Nath Boss v. Bibhuti Bhusan Bhar and others, A. I. R. 1963 Calcutta 104. In that case an application for execution was made to this Court on the Original Bide by a person claiming to participate in the assets under section 73 of Code of Civil Procedure, but his application was not accompanied by a certified copy of the decree as required by Rule 10 of Chapter xvii of the Original Side Rules. Further in that case, there was, in fact, no decree in existence on the date of the application, the decree having actually been drawn subsequent to the filing of the application. In these circumstances it was held that the application was not merely defective in form but the want of certified copy was a substantial defect which could not be remedied. In our opinion, the contention which has been advanced by Mr. Dutt in such a broad form that any irregularity or omission in the tabular statement will render the execution application not maintainable in law cannot be accepted. Whether the application for execution is in accordance with law or not and whether any omission is material or not depends upon the particular circumstance of each case. (See Soudamini v. Jessore and Co. , A. I. R. 1926 Calcutta 1146 ). This objection does not appear to have been taken on behalf of the defendant No. 6 before the trial court. Had this objection been taken the decree-holder could have amended the tabular statement with the leave of the Court and that would have cured the irregularity, if any, in the tabular statement. In our view this is a mere irregularity and not an illegality which will render the application for execution invalid in law.;