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Allahabad High Court
Mt. Maharani And Anr. vs Debi Das on 18 January, 1929
Equivalent citations: AIR 1929 All 253
Author: Dalal


JUDGMENT

Dalal, J.

1. The learned Judge of the lower Court has stated the law correctly. If there has been an amendment of a decree incapable of execution, the period shall run from the date of the amendment, otherwise it must date back to the date of the original decree. The view taken of the circumstances of this case by the learned Judge is, however, perverse in my opinion. It is obvious that the decree-holder has taken advantage of a slight mistake in orthography, and really did not consider the decree incapable of execution. First of all, he tried subsequent to the decree being time barred to make out that Rs. 10 had been paid by the judgment-debtor within time. The decree was passed on 6th January 1925, and on 3rd April 1928 he applied to the Court certifying a payment of Rs. 10 within the period of limitation. This application was contested and dismissed. No question then was raised of the previous decree as it existed being incapable of execution. Then he clearly took advantage of Jwala being written as Joti and applied for amendment on 16th June 1928. The amendment was granted ex parte on 20th June.

2. The original decree was passed against the assets of one Joti Prasad in the hand of Mt. Maharani and Sukhlal. There was no mistake as to Mt. Maharani and Sukhlal. It is alleged that Joti Prasad was written as Jwala Prasad in the decree, and, therefore, the decree was incapable of execution. No attempt whatever was made by the decree-holder to execute the decree within limitation. Joti and Jwala may easily be mixed up in Urdu writing, and nobody would have thought of any such mistake if the decree-holder had not wished to take advantage thereof in order to revive a time barred decree. I do not think that any objection would have been sustained if the assets of Joti Prasad in the hands of the applicants had been attached in execution of the first decree. It is clear to me that the first decree was capable of execution, that the error in orthography was immaterial and that the decree-holder was never prevented from executing the decree, nor was the decree incapable of execution. The decree-holder has taken advantage of a slight mistake in writing in order to execute a decree which is time barred. I set aside the order of the Munsif of Fatehabad dated 25th August 1928, uphold the objection of the applicants, and dismiss the application for execution of the decree. The applicants shall receive their costs.


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