P L D 1954 Dacca 37 (PLP)

SHAHABUDDIN, C. J.

‑This in an appeal under the Letters Patent from the judgment of Ormond, J. in Second Miscel laneous Appeal No. 129 of 1947 on the file of this Court. Facts giving rise to this appeal are these: The second res pondent borrowed from the appellant, Co‑operative Bank, some money and respondents Nos. 1, 3 and 4 stood surety in respect of the loan, which was on a bond. An Award in respect of this loan was passed under the: Co‑operative Societies Act on 26th June 1933, and as it has the force of a decree it was put into execution in 1936 for the first time, but that execution case was dismissed. In 1939 the appellant Bank brought a second execution case which was also dismissed. In 1942 it filed a third Execution Case No. 31/42. In the application on which this case was started, in column 9 intended for the names of the parties against whom the execution was to be taken, the names of the principal‑debtor as well as the sureties, viz., all the respondents before us, are mentioned; and in column 10, which is intended for indicating the nature of relief, it is stated that notice under Order XXI, Rule 22 of the Civil Procedure Code should be issued to these four persons. But in column 11 in which under Order XXI, Rule 11 of the Civil Procedure Code the mode in which the assistance of the Court is sought for executing the decree is to be indicated, it is stated that Rs. 75 per month should be attached out of the salary of Rs. 170 of Harendra Nath Bagchi, judgment‑debtor No.

4. Nothing is mentioned in column 11 as to how the decree is to be executed as against the other three judgment‑debtors. While this application was pending, the 4th judgment‑debtor respondent, against whom column 11 indicated the mode in which the decree was to be executed, filed an application before the Debt Settlement Board, arid the Board under sec tion 34 of the Bengal Agricultural Debtors Act issued a notice to the Subordinate judge before whom the execution applica tion was pending. Thereupon, the Subordinate judge passed an order of stay which merely states that the execution case be stayed. It is not known whether the proceedings are still pending before the Debt Settlement Board. Mr. Bhattacharjee appearing for the appellant is unable to give us information on this point. No one appears for the respondents. When this application before the Board was pending a fourth Execution Case No. 84/45 was started before the Munsif by the appellant Bank against the other three judgment‑debtors, res pondents Nos. 1 to 3, In this application, the mode of execution sought for as against these respondents, which was omitted in the application of 1942, has been mentioned. When this application was filed, respondent No. 1 took objection under section 47 of the Civil Procedure Code stating that execution petition of 1942 was against all the four respon dents, and as that petition had been stayed, a second petition did not lie as it would amount to applying for execution against the same persons in two petitions simultaneously. He also raised the question of limitation on the ground that the application of 1942 was filed in a Court of Small Causes. The learned Munsif upheld the objection on both the grounds and dismissed the execution petition of 1945. On appeal, the District judge took a different view. He held that the execu tion case of 1942 was only against the 4th respondent, that the stay order applied to the execution of the decree or the award only as far as the 4th respondent was concerned and that consequently as far as the objector to the execution petition of 1945, viz., the 1st respondent, was concerned, there was no pending execution proceeding and accordingly the appellant Bank could proceed with the fourth execution petition. He also held that the execution petition was not barred by limita tion as the Subordinate judge was a Civil Court with Small Causes Jurisdiction and not only a Court of Small Causes. From this decision the second miscellaneous appeal was filed and Ormond, J., who heard the appeal, set aside the order of the District judge and restored that of the Munsif. Before Ormond, J. the question of limitation was not raised. The only question, which the learned judge had to decide. and actually decided, was whether the execution petition of 1942 could be considered as an execution petition against all the four .respondents. Having regard to the fact that not only the names of all the four respondents find a place in column 9 of the application of 1942, but that also notices under Order XX I, Rule 22, Civil P. C., were asked for with regard to all the four persons, the learned judge held that that application was obviously against all the judgment‑debtors and consequently the stay order also should be taken as applying to execution against every one of them, It is seen from the judgment that on behalf of the appellant Bank, reliance was placed on Abu Taher Bazlul Rashid and others v. Chandra Moni Saha and others (43 C W N 318) wherein it was held that in the case of a joint debt due from several judgment debtors, if only one of them applies before the Debt Settlement Board, notice issued by the Board would bind the Civil Court only as far as the applicant before the Board is concerned and not in respect of the other debtors Ormond, J. agreed with this view but went on to observe that there was nothing in that decision to indicate that in such a case the execution Court is deprived of its discretion to stay the execution against those joint‑debtors who were not applicants before the Board. Having taken the view that the execution application of 1942 was against all the four respon dents, he restored the order of the Munsif. Mr. Bhattacharjee appears for the appellant Bank, while Mr. Birendra Kumar Dey, who put in an appearance on behalf of respondent No. 1, has reported no instructions. The contention of Mr. Bhattacharjee is this : An application has, like a plaint, to be read in its entirety. The mere fact that column 9, which is intended for the names of the persons against whom execution is to proceed, contains the names of all the four judgment‑debtors cannot by itself be taken as sufficient for holding that the execution application was for executing the decree against all the judgment‑debtors. There is no law compelling the decree‑holder to execute the decree against all the judgment‑debtors. This decree is a decree which binds these judgment‑debtors jointly and severally. The most important column of the execution petition is column 11, as that is the column which indicates the mode in which the assistance of the Court is sought for. That being so, and there being no indication in that column with regard to the respon dents other than the 4th Respondent, the District judge's view that the application was only for execution against the 4th respondent should have been upheld. Even if it is considered that the object of the appellant Bank in filing that petition was to execute the decree against all the four respondents, it cannot in law be regarded as a valid petition as far as respon dents Nos. 1 to 3 are concerned in view of the serious omission in respect of them in column

11. In support of the position taken by him, the learned Advocate has drawn our attention to the decision of the Madras High Court in Nagaratnam Pillai v. Ramaswami lyer (A I R 1939 Mad. 195.) and the decision of the Lahore High Court in Pir Taj‑ud‑din and another v. Khambatta and others (A I R 1938 Lah. 515). We have been through these decisions and the relevant portion of Order XXI, Civil P. C., as far as the form prescribed for the presentation of an execution application is concerned, and in our opinion the contentions of the learned Advocate for the appellant must prevail. It is no doubt true that accord ing to the prescribed form, column 10 should state the nature of relief, but Order XXI, Rule 11, C P C, which gives the items of information which have to be specified in a written application for execution does not specify the nature of the relief as an item different from the mode in which assistance of the Court is required. It no doubt mentions the names of persons against whom execution of the decree is sought as a specific item to be noted in the application i.e. clause (i) of subsection 2 of Rule 11, but next to (i) follows (1) which is to this effect "(j) the mode in which the assistance of the Court is required, whether‑ (i) by the delivery of any property specifically decreed; (ii) by the attachment and sale, or by the sale without attachment, of any property; (iii) by the arrest and detention in prison of any person; (iv) by the appointment of a receiver; (v) otherwise, as the nature of the relief granted may require". Under Rule 17, if any of these requirements are not complied with; the Court, according to the rule applicable to this Court, shall allow the defect to be remedied within a fixed date, and if not so remedied may reject the application. The application of 1942 was filed on the 28th of May, 1942, and the notice under section 34 of the Bengal Agricultural Debtors Act was received and the case was stayed on 28th November, 1942. It is obvious that action was not taken by the Court under Rule

17. As far as this appeal is concerned, the question for determination is as to whether this application with the defect pointed out by the learned Advocate for the appellant can be regarded as an application against all the judgment‑debtors. On a reading of the application in the same manner in which the recitals of a plaint should be read, viz., reading all the columns together, we find ourselves unable to agree with Ormond J. that the application, merely because notice was issued to all under Order XXI, Rule 22 of the Civil Procedure Code and their names appear in column 9, can be taken as an application against all. It appears to us that if the appellant Bank intended by that application to execute the decree against all the judgment‑debtors, it would have stated in column 11 which is the most important of the columns in the form, the mode of execution they wanted. As a matter of fact, as pointed out above, in the application of 1945 they have in respect of respondents Nos. 1 to 3 indicated the mode of execution. It is significant that the mode of execution, with regard to the 4th respondent, is mentioned in column 11 of the application of 1942. If that column had not been so filled up there might have been some force in the observation of the learned judge that as notices were issued to the four respondents we should take the application to be for executing the decree against all of them. But when the decree‑holder specified the mode of relief in respect of the 4th respondent only and did not say anything with regard to respondents Nos. 1 to 3, we think, it is not reasonable to construe the applica tion as intended for executing the decree against all the respondents. Even if, for argument's sake, it is taken that the intention of the decree‑holder was to execute the decree against all the four, we have to determine whether that execution petition can be regarded as a valid application for execution against all the four. Unless we come to the conclusion that it is a valid application against all it cannot be said that the application of 1945 as against respondents Nos. 1 to 3 does not tie. In the Lahore decision cited before us, it was observed that an application to take effect under Order XXI, C P C. should be presented in accordance with the provisions as laid down therein, and that if it is not so, unless the Court rejects the application or calls upon the decree‑holder to amend it under sub‑rule (1) of Rule 17, there is no proper applica tion before the Court. We are in agreement with this view. As we have observed already, the non‑compliance with the requirements of Order XXI, Rule 11, clause (j), C P C, is certainly a serious defect which renders the application not due according to law. As regards the issue of notice under Order XXI, Rule 22, which seems to have impressed the learned judge we do not think that that by itself can be regarded as the mode of execution. As pointed out in the Madras case cited by the learned Advocate for the appellant, notice under Order XXI, Rule 22, C P C is issued to the person against whom execution is applied by requiring him to show cause why the decree should not be executed against him, but for executing that decree the application must say in what manner it should be executed. We, therefore, consider that the district judge rightly held that the application of 1942 was one against respondent No. 4 only. As regards the stay order, as pointed out already, it merely stays the execution. The learned Judge observes towards the latter part of his judgment that the case turned on the narrow point whether the said order was a stay order of the whole case but we do not find anything in the stay order which can help us to determine that question. As to whether the execution case was against all the four or only one, has to be determined only on the application. The stay order merely says that the execution case is stayed. It is not necessary for us to consider the observation of the learned judge with regard to 43 C W N 318 (supra) or to state whether we agree with the view taken there. Suffice it, however, to observe that if the Subordinate judge had treated the execution application as one against all the four, he would have made an observation as to why the execution against the other three also was being stayed; but there is no such observation in his order. We, therefore, set aside the judgment and decree of this Court passed by Ormond J. and restore the judgment and decree of the District Judge. There shall be no order as to costs as no one appears for the respondent. AKBAR, J.‑

I agree. A. H. Appeal allowed.