H. Deka, J.
1. These are two connected appeals arising from the same set of facts and involving the same point of law. The judgment-debtor is the appellant and the orders dated 7th and 9th March 1955 passed by the learned Subordinate Judge at Silchar have been appealed against. It appears from the record that the decree-holder Srimati Subhashini Deb obtained a decree against the defendants in original Title Suit No. 18 of 1939 and the decree was dated 1-9-41. Several execution cases were filed previously without much success.
The last execution proceedings were started in the year 1952, and they were separately numbered as separate reliefs were sought in three different cases, but by an order of 24-3-54 they were directed to be amalgamated, which order however, was revised by the learned Subordinate Judge on 24-7-1954. That by itself is not of much importance. What has really been challenged in this case is whether the execution is competent or it is hit by Section 48 of the Civil Procedure--which provides inter alia that no order for the execution of the same decree shall be made upon any fresh application presented after expiration of twelve years from the date of the decree.
The original application for execution was defective in the sense that the particulars of immovable properties sought to be attached in execution of the decree were not furnished, as was required under Rule 13, Order 21, Civil Procedure Code.
The requirement of Rule 11 of Order 21, Civil Procedure Code as pointed out by Mr. Deb for the appellant is that it should be indicated in the application for execution as to what is the mode in which the assistance of the court is required and one of the items thereof is by the attachment and sale of any property. Here the application for execution was by sale of property, but the description of the property was not given nor any immovable property mentioned as such as was required under Rule 13. This defect however, was detected on 11-9-54 when objection was taken as to the competence of the execution proceedings.
The learned Subordinate Judge directed by his order of that date that the decree-holders were to take steps for supplying a list of properties which they wanted to proceed against by 25-9-54 and as the list was not supplied on 25-9-54 the learned Subordinate Judge directed that no attachment could be issued till the defect in the execution petitions were remedied and the decree-holders were directed to act accordingly and time was extended upto 29-10-54 till the reopening of the court.
On 29-10-54 a verified petition was filed by the decree-holders furnishing the details of the immovable properties sought to be attached and the learned Subordinate Judge directed that this petition should be treated as part of the original application for execution and he ordered attachment of the properties as set forth therein fixing 27-11-54. Subsequently on the sale proclamation being published and served a court sale was ordered for to which the judgment-debtors objected. On 7-3-55 the learned pleader for the judgment-debtors again argued that the application was barred under Section 48, Civil Procedure Code as the applications for amendments were made or the lists of immovable properties were supplied after lapse of 12 years from the date of the decree.
The learned Subordinate Judge reviewed the position under which the order dated 29-10-54 was passed and he overruled the objections on behalf of the judgment-debtors. The sale was concluded on 9-3-55 whereby the properties described in the application for execution were sold to the highest bidder. Against this final order one of the judgment-debtors Subhas Chandra Deb has come up in appeal.
His case has been as already mentioned, that the application for execution was not made in time and the order permitting amendment of the original application for execution by an application of a later date, could not have saved limitation, the application for amendment being made beyond twelve years of the date of the decree. His contention was that the original application for execution being defective for not providing the particulars of the properties, as required under Order 21, Rule 13, Civil Procedure Code, should have been treated as no application in spite of submitting a list later on.
2. Mr. Goswami for the respondent-decree-holders objected to the maintainability of the appeals on the ground that the material order that was passed in this case was on 29-10-54 whereby the application with the list of properties was accepted. This order being passed in the presence of the judgment-debtors, Mr. Goswami urged, it should be treated as binding and conclusive between the parties and that the judgment debtor has no right to file the present appeal long after the material order was passed.
We for ourselves do not think that there is much substance in this contention since the final order was passed at a later date when the property was sold whereby the interest of the judgment debtor was materially affected.
3. Mr. Goswami on the other hand defended the action taken by the executing court and submitted that it was the duty of the court to grant leave to amend a defective application when the defect is detected and this was what was done in the present case. He argued that owing to this amendment limitation was saved by virtue of Order 21, Rule 17 (2), Civil Procedure Code. I quote below the relevant portion of the rule :
'17. (1) On receiving an application for the execution of a decree as provided by Rule 11, Sub-rule (2), the Court shall ascertain whether such of the requirements of Rules 11 to 14 as may be applicable to the case have been complied with; and, if they have not been complied with, the Court may reject the application, or may allow the defect to be remedied then and there or within a time to be fixed by it.
2. Where an application is amended under the provisions of Sub-rule (1), it shall be deemed to have been an application in accordance with law and presented on the date when it was first presented.'
4. In case the amendment was allowable or permissible, then of course by virtue of this provision in Sub-rule (2) of Rule 17 the limitation will be saved. Therefore the only question we have to examine is whether the court was acting within its jurisdiction when it allowed the amendment of the original execution petition by filng of an application which gave the list of properties belonging to the judgment-debtors against which the decree-holders wanted to proceed. This application for amendment was of course made after twelve years of the passing of the decree.
5. Mr. Deb in support of his contention relied on one of the earlier decisions of the Calcutta High Court reported in Asgar All v. Troilokya Nath Ghose, ILR 17 Cal 631 (A), and contended that when an application for execution was made which did not contain a list of property and the decree-holder did not produce the same till after the expiry of twelve years from the date of the decree, any further application after that date would be barred. I do not consider it necessary to reproduce the facts of this case as in a subsequent case this view has been dissented from by the Calcutta High Court itself.
There is a further fact that in the earlier Code of Civil Procedure 1882, there was no provision like the one of the present Code under Sub-rule (2), Rule 17, Order 21 which gives the amendment a retrospective effect. The other case relied on by Mr. Deb is reported in Salimulla Bahadur v. Sainaddi Sarkar, AIR 1914 Cal 359 (B). In this case before the period of limitation had arrived, a decree-holder applied to the court under Order 21, Rule 17 to be allowed to file a list of immovable properties which he had not filed till then. The court simply made the order 'Permitted''. Subsequently the list was filed but by that time the period of twelve years had already expired.
It was held that the effect of limitation could not be excluded in this case under Sub-rule (2), Rule 17, Order 21 as the application had not been amended according to the provisions of paragraph 1, because no (sic) was fixed by the court within which the list was to be filed and that as the law was not complied with and as the necessary formalities were not carried out within the time prescribed by law, the execution proceedings were time barred. This case is definitely distinguishable as in the instant case the amendment to the earlier application of the list of immovable properties was supplied within the time allowed by the court. The court having jurisdiction to grant such time as it considers proper, it cannot be said that the application for amendment was not rightly accepted or that it would not come under Rule 17. Order 21, Civil Procedure Code.
6. On the other hand Mr. Goswami has relied on some of the decisions of several High Courts to support the view that it was the duty of the Court in accordance with Order 21, Rule 17, either to reject the petition when the defects are detected, or the court may allow the defect to be remedied within a time to be fixed by it. The view held by the Madras High Court is that it is obligatory on the court to either return the petition when the defect is detected or to permit the amendment at a stage when the defect is for the first time discovered.
In a case when the amendment is allowed it would act retrospectively as provided under Sub-rule (2) of Rule 17. One of the decisions relied on is Maheswaran Nambudripad v. Velappa Menon, AIR 1928 Mad 24 (C). There it was held that parties should not be made to suffer by reason of the failure of the court to check the correctness of entries in their execution applications. That was of course a case where the name of the legal representative was not correctly entered in the application for execution, and the mistake was detected after return of notice and then it was allowed to be amended by which time the application was out of time. But the case reported in Divakaran Nambudripad v. K. Manakkal Brahmadathan Nambudripad, AIR 1945 Mad 241 (D), has closer resemblance with the facts of this case. There it was observed that-
'there is no option or discretion in the court with regard to ascertaining whether the requirements of Rules 11 to 14 have been complied with. Where the effect of an execution petition is that the petition is, apart from the moveable properties, aimed at the immovable properties also belonging to the judgment-debtors but the same is defective in view of the fact that particulars such as are required by Rule 13 are not given it is the duty of the Court to return the petition for amendment to the petitioner after giving suitable time to enable the defects to be remedied. If no such action is taken by the Court, an amendment can be allowed under Order 21, Rule 17, even after lapse of twelve years from date of decree.'
In this case the original application for execution was made only for attachment and sale of immove-able properties, but at a later date more than two months after the earlier execution case was filed, permission was sought to amend the execution petition by adding an item of immovable property in the schedule. This application was made on 24th January, 1944, but by 4th January 1944 the period of twelve years had expired since the decree.
It was argued by the appellants that an amendment should not be allowed and that this is a virtual attempt to turn the old petition into a new petition but without the disadvantages of limitation imposed under Section 48. These facts have, as I have already indicated, a close resemblance to the facts of this case and the application for amendment being entertained even though after twelve years, in our opinion Order 21, Rule 17 applies to the facts of this case and the limitation is saved. Mr. Goswami further referred to two other decisions Hauamappa Shiddappa v. Ningappa Rangappa, AIR 1948 Bom 116 (E), and Ganeshlal v. Ramgopal, (S) AIR 1955 Raj 17 (F), but for our purpose we need not refer to these cases.
7. I have already mentioned that in a later case reported in Shekandarali Meah v. Abdul Gafur, AIR 1942 Cal 306 (G), the case of ILR 17 Cal 631 (A), was considered. Their Lordships observed in AIR 1942 Cal 306 (G), (ibid) as follows :
'If a subsequent application is filed for the purpose of amending the list of properties against which the decree-holder wishes to proceed, the Court is vested with a reasonable discretion to deal with the matter according to the circumstances of the case. The acceptance of such a petition would result in effect in the amendment of the application for execution. Such an amendment should not be allowed if it has the effect of substantially altering the character of the exscution proceedings.
But where an execution application is made in accordance with law and on objection by the judgment-debtor himself it is discovered that execution could not proceed against the attached properties, it is open to the decree-holder to file a further and supplementary petition asking the Court to proceed against the properties specified therein and the Court would exercise a reasonable discretion in accepting the supplementary petition.' Here as it appears the Court exercised its discretion and when it allowed or entertained the supplementary application with the list of details or immoveable properties, this operated as an amendment as provided under Sub-rules (1) and (2) of Rule 17 with its consequent effect. The only point that needs further answer is that the discretion of the court for leave under Order 21, Rule 17 (1), Civil Procedure Code is not fettered and the time for such amendment may exceed the limit of twelve years from the date of the decree. In consideration of the above circumstances we think there is no reason for interference with the order passed by the learned Subordinate Judge and the appeals are dismissed with costs. One judgment will cover both the appeals. '
G. Mehrotra, J.
8. I agree.