Sri Rai and Another vs Sheobeni Misser

Dhavle, J.—The only question in this application is whether the learned District Judge has not erroneously declined to exercise jurisdiction. He took the view that gross carelessness should not be held to be a bona fide belief and that therefore the decree-holder''s present application for execution was not saved from the bar of limitation by his previous application for execution in which the name of the judgment-debtor was wrongly given as Sheodeni instead of Sheobeni. The learned Munsif took the view that "it was a mere accidental bona fide slip, ''de'' was written for ''be'' apparently it was a clerical mistake."

He was also of opinion that at any rate, that petition was also a step-in-aid of execution and thus saved the present application from the time bar. It has been repeatedly laid down that trivial mistakes do not take an application out of the fifth clause of Article 182 of the Limitation Act. Under Act 14 of 1859, the period of limitation was counted from the date of the determination of a bona tide proceeding preceding the application for execution. Section 230 of Act of 1877 made it incumbent on the Court to refuse any subsequent application to execute a decree unless it was satisfied that on the last preceding application due diligence had been used to procure complete satisfaction of the decree. Under the present law, neither bona fides nor due diligence on the part of the decree-holder is required to keep the decree alive, and it has been held that there is no warrant for reading into the clause any requisites of good faith or due diligence.

It is also recognized that the language of the clause ought not to be strained in favour of the judgment-debtor who has not paid his debt. As a matter of fact, no evidence was adduced on the question of the decree-holder''s good faith or otherwise. That the decree-holder wrongly spoke of Sheodeni instead of Sheobeni was common ground, and there is no dispute that he did this at a time when Sheodeni who was a stranger to the decree was dead. Mr. Mitra for the petitioner has shown how the letter "de" might easily occur in kaithi writing by mistake for the letter "be".

It is true that the previous execution petition was dismissed on the ground that "it was at least a case of gross carelessness"; but in Pitambar Jana Vs. Damodar Gachait and Others, , it was ruled that an application in substantial compliance with the law will save limitation whether admitted, rejected, returned or allowed to be amended.

The learned advocate for the respondent has endeavoured to argue that the previous execution petition was deliberately filed against Sheodeni, but this case does not seem to have been made out below. Nor is it easy to see what possible object could have been served by trying to proceed against a dead stranger.

Carelessness in the matter of writing the name of the judgment-debtor is not the same thing as mala fides, though if the Limitation Act had required good faith in the matter, the definition in Section 2(7) would have excluded good faith on the ground of want of due care and attention. The present application for execution should in the circumstances have been proceeded with.

The application is allowed and the order of the District Judge set aside.