Judgment:
ORDER
M. Thanikachalam, J.
1. The revision petitioner is the judgment debtor, who failed in his attempt to resist the petition filed by the decree holder/respondent to amend the E.P. successfully.
2. The factual matrix, which are necessary for the disposal of the CRP are as hereunder.
3. The respondent in this CRP, as plaintiff, has filed O.S. No. 11 of 1986 for recovery of sum of Rs. 2,74,010.05 with interest @ 6% p.a. from 20.1.1986, which was decreed on 15.6.1992. Pursuant to the decree obtained by the respondent, in order to realize the decree amount by bringing the property of the judgment debtor by attachment and sale, E.P. No. 27 of 1995 was filed under Order 21, Rule 54 of Civil Procedure Code, hereinafter called 'the Code', wherein the attachment was made on 25.10.1995. The E.P., after undergoing certain process or proceedings, came to be dismissed for default on 19.8.2002. It appears, at the time of the dismissal for default, the Executing Court has not passed any order with respect to attachment, such as whether it will continue or ceased to operate, fixing the period, etc. In the absence of any such specific order, the attachment effected on 25.10.1995 was ceased and came to an end as on 19.08.2002, as contemplated under Order 21, Rule 57(2) of the Code.
4. Thereafter, the decree holder filed another execution petition under Order 21, Rules 66 and 72 of the Code for the realization of the decree amount, as if giving particulars in column 5b of the E.P., that the property was attached on 25.10.1995. In column 11 of the E.P., the prayer was to sell the property attached as described in the schedule, which belongs to the first defendant/revision petitioner. On the basis, as if the attachment was effected on 25.10.1995, the E.P. No. 126/03 was filed, proceeded.
5. The revision petitioner filed counter, dated 10.4.2004 before the Executing Court on 15.4.2004, wherein he has averred that the E.P. No. 27 of 1995 was dismissed by this Court without specifying whether the attachment continues or ceases or upto which period the attachment continues or the date on which the attachment ceases and therefore, under Order 21, Rule 57(2) of the Code, the attachment shall be deemed to have ceased. Thus stating, the E.P. was opposed, that the petition filed without following the provisions of law in respect of attachment of the property is not maintainable and the same should be dismissed in limine. Despite objection, forthwith, no application was filed by the decree holder for amending the E.P., seeking for attachment as contemplated under Order 21, Rule 54 of the Code. But belatedly, on 29.6.2004, E.A. No. 803 of 2004 was filed to include the prayer for attachment in the relief column, which was opposed by the revision petitioner/judgment debtor.
6. The Trial Court, considering the rival contentions of the parties and the filing of E.P. within time, felt that the prayer sought for is, only the correction of technical in nature, which requires to be allowed, to render justice, probably, enabling the decree holder to realize the decree amount, which he got on 15.6.1992. However, considering the fact that the amendment application was filed when the E.P. was posted for hearing the arguments of both sides and for orders, to compensate the delay, amendment was allowed, on payment of cost of Rs. 250, which caused grievance to the judgment debtor and the result is the revision.
7. Heard the learned Counsel for the revision petitioner and the learned Counsel for the respondent.
8. The admitted position is, that an executable decree has been passed, in this case on 15.6.1992 and therefore to execute the said decree, E.P. should be filed within 12 years, as contemplated under the Limitation Act. It is also an admitted position that the present E.P. was filed on 17.3.2003, which is in time, the fact being 12 years would expire on 15.6.2004. The decree holder, as said above, filed E.P. No. 126 of 2002, as if the attachment is subsisting, which was made on 25.10.1995, in the previous E.P. No. 27 of 1995. The revision petitioner, though objected the E.P. that bringing the property for sale without fresh attachment, the fact being the previous attachment ceased on 19.8.2002, the decree holder has not taken any steps to include the prayer for attachment within 12 years from 15.6.1992, whereas the petition was filed only on 29.06.2004, i.e. beyond the period of 12 years. As said above, though the amendment was sought for, including the prayer for attachment, on 29.6.2004, the same was allowed by the Executing Court, which caused grievance to the judgment debtor and therefore, he is before this Court as revision petitioner.
9. Mr. K. Srinivasan, learned Counsel appearing for the revision petitioner would contend, that on the date of filing the amendment application, namely E.A. No. 803 of 2004, 12 years period for the execution of the decree already expired and therefore, by the proposed amendment, converting the original E.P., filed under Order 21, Rule 66 of the Code, as one under Order 21, Rule 54 of the Code would amount to filing or substituting a new E.P., which is barred by limitation and the right accrued in favour of the judgment debtor, by the period of limitation cannot be taken away by the proposed amendment, detriment to the judgment debtor, causing prejudice to him also, which should be declined, as impermissible, which are not properly considered by the Executing Court, warranting interference of this Court and in this view, the revision deserves acceptance.
10. Mr. Vallinayagam, the learned Counsel appearing for the respondent herein/decree holder submitted that the E.P. could be filed, for bringing the property for sale, even without attachment, as contemplated under Section 51 of the Code, that E.P. No. 126 of 2002 having been filed within the period of limitation, the proposed amendment seeking attachment of the same, as precautionary measure, cannot be termed as a new E.P. or substitution of new execution petition in the existing petition and that the mode of attachment sought for is only procedural in nature, in a petition filed for execution within time and in this view, the amendment cannot be termed as barred by limitation or it will not have the character of taking away any accrued right, in favour of the judgment debtor.
11. In view of the above submission made by either counsel, the points that arise for consideration are:
(1) whether an E.P. could be filed for bringing the property of the judgment debtor for sale, even without attachment, if so whether attachment sought for is procedural in nature, not affecting the right of the defendant/judgment debtor.
(2) whether the proposed amendment would amount to filing a new E.P., as claimed by the revision petitioner, if so whether it should be held that the proposed amendment is barred by limitation.
12. In E.P. No. 126 of 2002, which was filed within 12 years in column 5b, it is stated 'Attached on 25.10.95' which is incorrect, because of the admitted position that the attachment ceased to exist, on the date of the dismissal of the previous E.P. On 19.8.2002, as contemplated under Order 21, Rule 57(2) of the Code, in view of the fact that there is no specific order by the Executing Court, continuing the attachment for a specified period or for ever. In this view, the prayer column 11 that the Court may be pleased to bring the sale of the property attached also must be incorrect. The only sin committed by the decree holder appears to be he has not filed the petition immediately to amend the E.P., though the same was brought to notice of the decree holder by the counter filed by the judgment debtor on 15.4.2004. Wisdomed on very belatedly, that too when the case was posted for orders, after hearing the parties. Whether such a belated step taken by the decree holder should visit serious consequences of preventing him from continuing the E.P. to realize the heavy amount of more than Rs. 5 lakhs or so, is the concern of the Court and this concern should be redressed, not on humanitarian ground alone, but based on law.
13. The original E.P. was filed under Order 21, Rule 66 and 72 of the Code, for ordering proclamation of sale and the property should be brought for sale, on the basis of assumption, attachment is there, which is incorrect, admittedly. By the proposed amendment, the decree holder wants to bring the E.P. under Order 21, Rules 54 and 66 of the Code instead of Order 21, Rules 66 and 72 of the Code, correcting the prayer in column 11 also. In view of the fact, E.P. was filed in time, the proposed amendment cannot be described, as time barred, since under the proposed amendment, only the mode of attachment alone is sought to be introduced, seeking attachment, then sale, not filing fresh application, for execution. Ordinarily, if the amendment is allowed, it will date back, to the date of original filing of the petition unless otherwise stated. On that basis also, it cannot be said, that the proposed amendment would amount to substitution of new E.P., after time is barred or attachment sought for is time barred. The Eimitation Act contemplates and prescribes time, for filing E.P. alone and it does not contemplate any period for attachment, such as in an E.P. Filed, for the realization of the decree amount, the attachment also should be made within the period of twelve years.
14. In this view of the matter, as rightly submitted by Mr. Vallinayagam, in my considered opinion, the proposed amendment cannot be described, as time barred and therefore, by allowing the same, no prejudice would be caused to the other side, because of the fact, he has not accrued any right on the basis of the alleged time bar, which is claimed incorrectly. In this context, we have to see, whether to bring the property of the judgment debtor, attachment is an absolute one. If the attachment is not an absolute one to bring the property of the judgment debtor for sale, then it could be said very easily that if any attachment is sought for, after 12 years from the date of decree, it is not barred by limitation, if E.P. was already filed, for execution. In this case, admittedly E.P. was filed within 12 years and at present, after 12 years the attachment is sought for. Only in this context, we have to see whether attachment is an absolute one.
15. Part II of the Code guides, how the execution proceedings should be taken and how the decree should be executed. While prescribing the procedure in execution, Section 51 of the Code says:
Subject to such conditions and limitations as may be prescribed, the Court, may, on the application of the decree holder, order execution of the decree--
(a) by delivery of any property specifically decreed;
(b) by attachment and sale or by sale without attachment of any property;.
In view of Section 51(b) of the Code, it is not mandatory, that to enforce a money decree for execution, the property should be attached and even without attachment of the property, a decree could be executed, by bringing the property of judgment debtor, for sale. A plain reading of Section 51(b) of the Code makes it abundantly clear, that the Court may order execution of the decree, by sale without attachment of any property, which is also supported by rulings, which I will discuss infra.
16. The submission of the learned Counsel for the revision petitioner, that in view of Section 121 of the Code and in view of Order 21 of the Code, the procedure contemplated therein also shall have the effect, as if enacted in the body of this Code, and in this view, in view of Order 21, Rule 54 of the Code, unless the property is attached, the same cannot be brought for sale, which appears to be not legally sound, considering the provisions available under Order 21 of the Code.
17. No doubt true, the Rules in the First Schedule, which includes Order 21 of the Code also, shall have the effect, as if enacted in the body of this code. If there is any specific provision in the first schedule that execution is barred, to bring the property for sale without attachment, then alone the submission of the learned Counsel for the revision petitioner shall have the acceptance of the Court. No provision was brought to my notice, that, to bring the property for sale, attachment is a precondition except Rule 54, though, as routine, this practice is prevailing in the Court, before bringing the property for sale, attachment is sought for, effected, etc., that does not mean, if the property is brought for sale without attachment, the same would offend any provision of the Code.
18. The submission of the learned Counsel for the revision petitioner, placing reliance on Section 121 of the Code, amounts to fallacy is evident from Order 21, Rule 11(2)(j)(ii) of the Code. Rules 10 to 14 of the Code prescribe a form of application for execution. Rule 11(2) of the Code prescribes, how the written application should be filed with number of columns. Rule 11(2)(j)(ii) of the Code reads, 'by the attachment or by the attachment and sale, or by the sale without attachment, of any property'. This rule is in accordance with Section 51(b) of the Code. This sub-rule is the answer to the submission of the learned Counsel for the revision petitioner. If this provision is not available in Order 21 of the Code, and the only provision was made available is, that by attachment alone, the property could be brought for sale, then the contention of the learned Counsel for the revision petitioner may be acceptable to some extent, considering the effect of Section 121 of the Code. In the first schedule also, where the written application is prescribed for execution, when the Code says, the property could be brought for sale, by the attachment or by attachment and sale or by the sale without attachment of any property, is sufficient to hold that the property of the judgment debtor can be brought for sale, even without attachment, in view of the further fact, there is no specific bar anywhere in the Code, to bring the property for sale, without attachment, whereas provisions are made, to bring the property for sale, even without attachment, though procedure is followed consistently to bring the property, after attachment of sale.
19. Further, the submission of the learned Counsel for the revision petitioner, that Section 51(b) of the Code contemplates sale, without attachment of any property is applicable only to the decree, such as charge decree and mortgage decree is not acceptable to me, that too in view of the Rule 11l(2)(j)(ii) of the Code. If the decree sought to be executed is a decree, for mortgage or charge, certainly the question of attachment does not arise for consideration and therefore, it is not necessary for the legislator also, to say specifically either in Section 51 or in-Order 21, Rule 11(2)(j)(ii) of the Code, that the decree could be executed by sale, without attachment of any property. In this context, it will be worth to recall or remember the purpose of attachment.
20. In C.P.C., the attachment of immovable property is contemplated under Order 21, Rule 54 of the Code and under Order 38, Rule 5 of the Code, the first being after decree and the later being before judgment. The purpose of attachment is, preventing the judgment debtor from alienating or encumbering the property, thereby making it possible, for the decree holder to proceed against the said property. If the attachment has not been effected and without attachment, the property is brought for sale, there is every possibility for the judgment debtor, to sell or encumber the same, thereby taking away the property, from the execution proceedings, conferring some right upon the third party, before actual sale, on which date alone, there will be transfer of interest. Therefore, pending execution, in case, where the attachment has not been effected, if the property has been sold, by the judgment debtor before actual date of sale, execution proceedings will be a waste one, and the decree holder may not be able to realize any amount, by sale of the property, which was already transferred. On the other hand, if it is attached, it would facilitate the decree holder, to proceed against the property, even if it is sold or encumbered before actual sale, invoking Order 21, Rule 95 of the Code.
21. Rule 95 of the Code gives right, to the auction purchaser to get delivery of property, on the basis of the certificate issued under Rule 94 of the Code not only from the judgment debtor, but also from the subsequent purchaser, in case the judgment debtor had alienated the property or encumbered the property, to a third person, even against that person. That is why, Rule 95 says:.on the application of the purchaser, order delivery to be made by putting such purchaser or any person whom he may appoint to receive delivery on his behalf in possession of the property, and, if need be, by removing any person who refuses to vacate the same.
In case, as contemplated under Order 21, Rule 54 of the Code, after decree or as contemplated under Order 38, Rule 5 of the Code, before judgment, if the property had not been attached and brought for sale, and in the event the judgment debtor had alienated the property, the auction purchaser, who obtained certificate under Rule 94 of the Code, may not have an opportunity to enforce the certificate, or he may not have an opportunity to take possession of the property, from the subsequent purchaser, who had purchased the property, before the date of sale. In this view, if at all, if the property is brought for sale without attachment, this kind of facilities available under Rule 95 may not be available to the decree holder/auction purchaser or third party/auction purchaser and certainly, there is no bar, in bringing the property without attachment.
22. In support of the above conclusion, the learned Counsel for the respondent also invited my attention to the decisions in Janki Vallabh v. Moolchand and Ors. and Krishnamukhlal Bhagwandas Shroff v. Sha. Bhagwan Kashidas and Ors., , wherein the scope of Section 51 of the Code, is well discussed and a conclusion was also reached, i.e. it is a wrong proposition to say that no property could be sold in execution of decree without attachment. The reasons assigned by the learned Judges of the Rajasthan High Court and Gujarat High Court are convincing and appealing and in this view, acceptable to me. These two judgments were rendered before 1976, i.e. before the amendment is introduced in Order 21, Rule 11 of the Code, wherein alone, a clause is introduced, which says, 'by the attachment or by the attachment and sale, or by the sale without attachment, of any property'. Considering the effect of Section 51(b) of the Code alone in Janaki Vallabh Case in paragraph 7 of the judgment, the learned Judge has given the reasons, the object of attaching the property before it is put to sale, is to secure the interest of the decree holder and the auction purchaser. Considering the scope of attachment, it is observed:
It is in order to obviate these contingencies that attachment of the property before it is put to sale is effected, but if for one reason or the other the property could not be attached and (was) put to sale without attachment then it would not vitiate the sale because attachment of the property is neither necessary nor is an essential step in the process of realisation of the decretal amount by sale of the property belonging to the judgment-debtor.
23. The attachment is not so essential to bring the property for sale also could be seen from the grounds made available to the judgment debtor, to set aside the sale, on the ground of irregularity or fraud. Under Rule 90 of Order 21 of the Code, by way of explanation, it is said, 'the mere absence of, or defect in, attachment of the property sold shall not, by itself, be a ground for setting aside a sale under this rule', thereby indicating, if there was any defect in the proceedings adopted for attachment, that will not invalidate the sale, thereby showing in a way that even in the absence of attachment, the property could be brought for sale. In my opinion, in this view alone, the explanation could have been included, under Rule 90 of Order 21 of the Code, thereby showing attachment is not essential, always to bring the property for sale. If the attachment is the main criterion, to bring the property for sale, as claimed by the revision petitioner, then while cataloging the grounds to set aside the sale, any defect in attachment of the property sold, should have been shown, as the main ground for setting aside the sale, which is not. On the other hand, exemption is given for the defect, if any, in the attachment of the property sold in execution of the decree. Thus, viewing the case from this angle also, the reasons assigned by the Rajasthan High Court, in the above said decision is well acceptable and therefore the observation therein 'a decree can be executed by sale of the property of the judgment-debtor without first attaching it in view of the specific provisions of Section 51 of the Code, such a sale is not ipso facto invalid' is to be accepted.
24. It is no doubt true, Rule 54 of Order 21 of the Code says: 'Where the property is immovable, the attachment shall be made, by an order prohibiting the judgment-debtor from transferring or charging the property in any way, and all persons from taking any benefit from such transfer or charge', thereby showing before following the other procedures contemplated for sale, there should be an order of attachment. Rule 64 of the Code empowers the Court, that the Court executing a decree may order that any property attached by it and liable to sale shall be sold and the proceeds shall be paid to the party entitled under the decree to receive the same, restricting if necessary even to sell a portion, which is sufficient to satisfy the decree amount. Attachment mentioned in these rules are the enabling provisions, to bring the property for sale, preventing the judgment debtor from transferring or encumbering the property, thereby safeguarding the interest of the auction purchaser, and at the same time, if transferred, giving power to the auction purchaser to proceed, even against the transferee after the attachment. Nowhere, it is said, that in the absence of attachment, the properties are not liable to be sold. If we read these provisions, coupled with Section 51(b) and Order 21, Rule 11 of the Code, the irresistible conclusion must be that even without the attachment of the property, the property can be brought for sale and that kind of sale is subject to risk, if at all, since there is possibility for the judgment debtor, to transfer the property before sale, thereby depriving the right of the auction purchaser as well as the decree holder. Only in order to avoid this contingency, it is said in Rule 54 of the Code, where the property is immovable, the attachment shall be made by an order prohibiting the judgment debtor from transferring or charging the property in any way and not in the sense that for sale, attachment is an absolute one, as precondition.
25. In Krishnamukhlal Bhagwandas Shroff Case, while considering the effect of Order 21, Rule 54 of the Code as well as Section 51(b) of the Code, the learned Judge has observed:
There is another important aspect of the mater which should also be borne in mind while considering the contention of the judgment-debtor that execution proceedings of the sale of immovable properties cannot proceed without a valid attachment as contemplated by Order 21, Rule 54, C.P.C. That aspect is that the law does not require that an immovable property cannot be sold in execution without its attachment. This will be evident by reference to Clause (b) of Section 51(b) of the Civil Procedure Code, which provides in clear and unequivocal terms that the Court may order the execution of a decree 'by attachment and sale or by sale without attachment' of any property. This provision, therefore, shows that attachment of an immovable property is not a sine quo non for sale in execution.
It is also further observed:
In fact, even if the rule says so, it could not have overriding effect over the specific provision of Clause (b) of Section 51 of the Civil Procedure Code. In these circumstances, it is a wrong proposition to say that no property could be sold in execution of a decree without attachment.
After the amendment under Act 104 of 1976, Order 21, Rule 11(2) of the Code itself says, an execution petition can be filed to bring the property for sale by the attachment or by the attachment and sale or by sale without attachment, of any property.
26. Thus, analyzing the provisions as well as in the light of the decision available under Section 51(b) of the Act, I am of the considered opinion, that the property of the judgment debtor can be brought for sale, even without attaching the property and in this view, if the attachment is sought for, after the execution petition was filed in time, it may not amount to substituting a fresh E.P. or seeking attachment, after the period prescribed for execution is over. Therefore, as rightly submitted by Mr. Vallinayagam, it should be held, that bringing the property of the judgment debtor for sale without attachment also is valid, enforceable.
27. The submission of the learned Counsel for the revision petitioner, Mr. K. Srinivasan, that on the date of the filing of the amendment application, the E.P. is barred by limitation, is erroneous in my view. The time limit is prescribed only for filing E.P., as said above and nowhere it is said, for attaching the property, time is 12 years from the date of the decree. Therefore, the submission of the learned Counsel for the petitioner, placing reliance upon a decision in Tarlok Singh v. Vijay Kumar Sabharwal, , that the amendment will operate only from the date of which, the amendment was ordered and in this view, on the date of attachment, E.P. itself is barred by limitation is not appeallable and acceptable.
28. The submission of the learned Counsel for the revision petitioner, placing reliance upon a decision of the Apex Court, in Mahadeo Prasad Singh and Anr. v. Ram Lochan and Ors., , that the provisions of Section 51 of the Code are merely proceedings in character, and the decree-holder, who is competent to execute the decree, has to follow the procedure prescribed in accordance with law at the time when the execution is sought for, namely avoiding attachment, the property cannot be sold also, fails to lend any support to the case on hand. Here, not only Section 51 of the Code empowers the decree holder to bring the property without attachment, but also the procedure provided by law, namely Order 21, Rule 11 of the Code also, provides, that the property could be brought for sale without attachment. If there is any omission in supplying the material, to the column in the E.P., the same could be amended, under Order 21, Rule 17 of the Code, though such an amendment is not sought for in this case, whereas Order 6, Rule 17 of the Code alone is invoked. Therefore, it cannot be said, that the decree holder has not followed the procedure provided by law in force, at the time when the execution is sought for or he had violated any provisions of law. Thus settling, the attachment is not necessary or an absolute one, to bring the property of the judgment debtor for sale, now, we have to see, whether amendment sought for is permissible.
29. In Sampath Kumar v. Ayyakannu and Anr., 2002 (4) CTC 189, the Supreme Court has held, reiterating the view already taken by the Apex Court:
An amendment once incorporated relates back to the date of the suit. However, the doctrine of relation back in the context of amendment of pleadings is not one of universal application and in appropriate cases the Court is competent while permitting an amendment to direct that the amendment permitted by it shall not relate back to the date of the suit and to the extent permitted by it shall be deemed to have been brought before the Court on the date on which the application seeking the amendment was filed.
Therefore, it is evident, unless for the reasons to be recorded by the Court, that amendment shall take effect on the date of which the application, seeking amendment was filed, then on the basis of doctrine of relation back, it shall take effect from the date of institution of the suit. In this case, applying the above principal, since amendment is one of procedural in nature, it may be given effect to, from the date of institution of the execution petition, and it need not be restricted to the date of application in order to say, it will be barred by limitation, thereby defeating the right of the decree holder, who obtained decree for recovery of money. As far as possible, this kind of technicalities, should not be allowed to come in the way of realizing the decree amount, and in fact, the Courts, which are expected to do justice to the parties, must favour the possible execution, thereby allowing the decree holder, to enjoy the fruits of the decree, not depriving that right, only on the basis of some technicalities, as raised in this case.
30. This Court had an occasion in Sree Sankara Rameshwarar Devasthanam, through its Executive Officer, Tuticorin v. Pitchaiammal and five others, , where the amendment sought for, to correct the description of the property would amount to inclusion of a fresh property, that too after 12 years period from the date of decree. Considering various decisions of this Court as well as the other Courts, K. Sampath, J. took the view that the respondents cannot be allowed to take unfair advantage and deprive the decree holder and the legitimate claim, further observing that the amendment sought for is only the name of the street, which was not attached, within a period of 12 years. By allowing the proposed amendment, as per the decision in the above case, the property was ordered to be attached, after 12 years and applying the same principle, it should be held that by allowing the proposed amendment, permitting the decree holder to seek an order of the Court, for attachment of the property, will not come certainly under the period of limitation, so as to say barred by time.
31. An apt and appropriate decision was brought to my notice, by the learned Counsel for the respondent, decided by this Court, in Gnanambal v. Perumal Filial and Anr. , which principle is squarely applicable to the case on hand. Srinivasan, J. (as he then was) observed in the above decision in paragraph 6 that:
It is next contended that in any event when the memo was filed for amendment of the execution petition, it was very much out of time and it is as if a new relief is sought in the execution proceeding which is not available to the decree holder. There is no substance in this contention. So long as the execution petition is pending and it has been filed within time, it is open to the decree-holder to have the process of execution carried out by attaching the properties of the judgment debtor. There is no separate period of limitation for a prayer for attachment. If the execution petition is within the period of limitation, any prayer for enabling the Court to carry out the execution and realise the fruits of the decree is not subject to any period of limitation. Such a prayer can be made so long as the execution petition is pending.
32. In the case involved in the above ruling, the last date for filing execution petition was 16.11.1986 and the decree holder filed execution petition on 8.7.1986 well within the time. After the sale, a petition came to be filed, to set aside the sale on several grounds and one of the grounds was that execution petition was barred by limitation. The sale was set aside on the ground that attachment was effected during the pendency of the suit, which came to an end, when the prior execution petition was dismissed, because of the order of injunction in another suit, probably without considering the explanation, available under Order 21, Rule 90 of the Code. After the setting aside of the sale, the decree holder filed a memo on 15.10.1990 for amending the execution petition, by including the prayer for attachment of property set out therein, which is a case here also. That amendment was granted, challenged in the revision, wherein alone, as said, this Court has held, that if the execution petition is within the period of limitation, any prayer for enabling the Court, to carry out the execution and realize the fruits of the decree, could be filed, since realization of fruits of decree is not subject to any period of limitation. Applying the above principle, it should be held, unhesitatingly that amendment sought for, allowed by the executing Court, is well maintainable and at any stretch of imagination, it cannot be denied, as barred by limitation. Order 21, Rule 17 of the Code empowers the Court, if Rules 11 to 14 are not complied with, permitting the party, to remedy the defect, then and there, within the time fixed, where no period of limitation is prescribed. Hence, the Decree holder wants to supply particulars in the E.P., remedying the omission, seeking attachment, which could be well accepted, invoking to inherent jurisdiction of the Court, to meet the ends of justice. In this view also amendment is permissible. Though executing Court has not considered all these aspects in detail, the conclusion reached is correct, which deserves confirmation.
33. For the foregoing reasons and in the light of the judicial precedents available, I am of the firm and considered opinion, this revision is devoid of merits, liable to be dismissed.
34. In the result, this revision is dismissed, confirming the order of the lower Court. The parties are directed to bear their respective cost.