1. This is an appeal under the Letters Patent from a decision of Mr. Justice Barlee. The point involved is one of limitation and the necessary facts and dates are these. On July 3, 1916, the respondent obtained a money decree against Shankar, the father of the appellant, in the Court of the First Class Subordinate Judge at Poona. Then on November 3, 1917, Shankar died. On March 26, 1919, the decree-holder made an application (No. 49 of 1919) under Section 39 of the Civil Procedure Code for transfer of the decree for execution to the Dhulia Court. This application was made in ignorance of the death of the judgment-debtor. Notice was issued and the bailiff then reported that Shankar was dead. On July 21, 1919, an oral application was made by the judgment-creditor's pleader for time to make enquiries as to the legal representatives of the deceased judgment-debtor. The application was granted and time was given for this purpose until August 15, 1919, but on that day the application was dismissed, the applicant not having taken any steps in connection with his application. On July 13, 1922, an execution application was made against the appellant, i.e., the son of Shankar. This application was struck off as no steps were taken to serve the notice. On June 26, 1925, there was another execution application which was struck off for the same reason. As the notices were not served the question of limitation did not arise at this stage.
2. On March 17, 1926, the application which has given rise to this appeal was made. This was another application under Section 39 of the Code for transfer of the decree to Dhulia. The question for determination is whether, as contended by the appellant, the execution of the decree is time barred. The relevant provision of the Indian Limitation Act is Article 182 as it stood before the amendment in 1926. That Article provides a period of three years for an application for the execution of a decree, the period to be counted from the dates given in the 3rd column of the Article. Clause 5 at the material time provided that time was to be counted from 'the date of applying in accordance with law to the proper Court for execution, or to take some step-in-aid of execution, of the decree'.
3. Now it is conceded, and is obvious from the dates which I have given, that the execution of this decree of July 3, 1916, must have been barred at the date of the latest application on March 17, 1926, unless each of the first two applications (i.e., the application of March 26, 1919, and that of July 21, 1919) can be held to be either a valid application for execution or a valid application to take some step-in-aid of execution. The trial Court held that the first application was good inasmuch as it was filed owing to a bona fide error of the plaintiff who believed that the judgment-debtor was alive. For that proposition reference was made to a passage in Rustomji's Law of Limitation but no case was cited. It was held further that the second application was a valid step-in-aid of execution on the strength of the decision in Haridas Nanabhai v. Vithaldas Kisandas I.L.R. (1912) Bom. 638 : 14 Bom. L.R. 765 In that case it was held that an application for time to enable the applicant to obtain copies of the decree and judgment, made after presenting a darkhast to execute a decree, is a step-in-aid of execution. The Court followed Kunhi v. Seshagiri I.L.R. (1882) Mad. 141 where the point decided was that an application by a judgment-creditor to the Court which passed the decree for a certificate that a copy of a revenue register of the land is necessary, to enable him to obtain such copy from the Collector's office and thereupon to execute the decree by attaching the land, is a step-in-aid of execution within the meaning of the corresponding provision of the Indian Limitation Act of 1877. The learned trial Judge, therefore, allowed the application holding that the decree was not time-barred.
4. On appeal to the District Court of Poona, the learned Assistant Judge who heard the appeal agreed that the first application was a valid step-in-aid on the basis of the decision in Bipin Bekari Mitter v. Bibi Zohra I.L.R. (1908) Cal. 1047. There it was held that if an application for execution of a decree be made under the influence of a bona fide mistake against a dead person, though that application cannot be acted upon, still it is an application in aid of execution within the meaning of the Article in the Indian Limitation Act and saves the execution of the decree from being time-barred. But the learned Assistant Judge also took the view that though the application was a valid step-in-aid on the date when it was made, it became a nullity on the receipt of the bailiff's report of the judgment-debtor's death and that, therefore, the second application (i.e., that of July 21, 1919) was not a step in furtherance of the former application and not a step-in-aid within the meaning of Article 182, Clause (5), of the Indian Limitation Act.
5. In second appeal Mr. Justice Barlee held that the first application was a valid step-in-aid relying on Bipin Behari Mitter v. Bibi Zohra, and Samia Pillai v. Chockalinga Chettiar I.L.R. (1893) Mad. 76 which decisions he followed in preference to that of the Allahabad High Court in Madho Prasad v. Kesho Prasad I.L.R. (1896) All. 337 He held further that the application did not become a nullity on receipt of the bailiff's report and that the second application in July 1919 was a valid step-in-aid, for which purpose he relied on Haridas Nanabhai v. Vithaldas Kisandas and Kunhi v. Seshagiri, In that connection the learned Judge said:
I cannot agree with the learned Assistant Judge that though the application was not a nullity when it was filed, it necessarily became a nullity when it was found that the judgment-debtor was dead. Though of course it was ineffectual I think it was capable of being made effectual in the ordinary way by the substitution of the names of the heirs of the judgment-debtor for his name. The principle underlying the decision of the learned Assistant Judge seems to be that after the death of a judgment-debtor no application can be made in execution or in aid of execution until his legal representatives have been placed on the record. But this view overlooks the fact that their names cannot be substituted for his until an application has been made.
6. In view of these findings, the decision of the Court of first appeal was reversed and the decree of the trial Court restored with costs. That gives rise to the present appeal.
7. The first point raised by Mr. Gumaste on behalf of the appellant was that the application of March 26,1919, cannot be regarded as a step-in-aid of execution in any case, irrespective of the question whether the judgment-debtor was alive or dead. That is to say, he proposed to contend that an application Under Section 39 of the Code is in no case an application to take a step-in-aid of execution. On that point, however, there is ample authority-see Janardan Govind v. Narayan Krishnaji I.L.R. (1918) Bom. 420 : 20 Bom. L.R. 421 and the cases referred to therein, viz., Todar Mal v. Phola Kunwar I.L.R. (1913) All. 389 and Chundra Nath Gossami v. Gurroo Prosunno Ghose I.L.R. (1895) Cal. 375 Mr. Gumaste suggested that these rulings should be reconsidered in view of a decision of the Privy Council in Banku Behari Chatterji v. Naraindas Dutt (1927) L.R. 54 IndAp : 29 Bom. L.R. 850 He admitted, however, that this point was not pressed or properly argued before Mr. Justice Barlee and that the Privy Council case was not cited. Since a new point which has not been argued before the first Court cannot be taken in an appeal under the Letters Patent (see Brij Bhukhan v. Durga Dat I.L.R. (1898) All. 258) we declined to hear arguments on this question.
8. The next point raised by the learned advocate for the appellant is that the application of March 26, 1919, cannot be regarded as a step-in-aid of execution because when it was made the judgment-debtor was dead. For that proposition he relied on Madho Prasad v. Kesho Prasad. It was held there that applications for the execution of a decree made after the death of the judgment-debtor and without either any representative of the judgment-debtor being brought upon the record or there being any subsisting attachment of the property against which execution is sought, are not good applications for the purpose of saving limitation. The reason given for this finding was that the proceedings in execution after the death of the judgment-debtor were 'ineffectual' proceedings, and at the conclusion of the judgment the Court made this observation (p. 339): 'There is quite sufficient irregularity in the execution of decrees in this country without our introducing the novel system that a decree can be executed against the estate of a deceased judgment-debtor without any notice to his representative and without any one to protect the property being brought upon the record.' The word 'ineffectual', if I may say so with respect, seems to be rather a vague expression. An application may be ineffectual in various ways and for various reasons. In the present case the darkhasts which were filed in 1922 and 1925 were ineffectual in the sense that nothing was obtained thereby by way of execution. But they were perfectly good applications and effectual for the purpose of saving limitation. Probably by 'ineffectual' was meant not in accordance with law. But it is not easy to see why an application which fulfilled all the requirements of the law according to the information available to the judgment-creditor at the time it was made should not be held to come within the Article. The observation at the end of the judgment has no application in the present case. There is not really any question of a decree being executed against the estate of the deceased judgment-debtor without notice or without any one to protect the property being brought on the record. The learned advocate for the appellant has asked us to follow the decision in Madho Prasad v. Kesho Prasad, in preference to the rulings of the Calcutta and Madras High Court, to which I shall refer in a moment, on grounds other than those stated in the judgment. He refers to Rule 11 of Order XXI of the Code which requires inter alia that every application for the execution of a decree should mention the name of the person against whom execution is sought, and also to Rule 17 of the same Order which provides that on receiving an application for execution the Court shall ascertain whether the requirements of the rules have been complied with; and if not, may reject the application or may allow the defect to be remedied. Clause (2) of Rule 17 provides that where an application is amended it shall be deemed to have been an application in accordance with law and presented on the date when it was first presented. Mr. Gumaste's argument based on these rules is that as the plaintiff did not amend his application No. 49 of 1919 after discovering the fact that the judgment-debtor was dead, it cannot be regarded as one in accordance with law, and is not, therefore, a good application to take a step-in-aid of execution. He has referred us to certain authorities. In Sakkargauda v. Bhimappa : (1930)32BOMLR1368 , it was held by Mr. Justice Murphy that an application for execution which contravenes Order XXI, Rule 13, as not containing a description of the property to be attached and sold, is not an application in accordance with law within the meaning of Article 182 of the Indian Limitation Act. In Bhagwat Prashad Singh v. Dwarka Prashad Singh I.L.R. (1923) Pat. 809 it was decided that where an application for execution is returned under Order XXI, Rule 17, on the ground that the requirements of Rules. 11 to 14 have not been complied with, and is not amended within the time fixed, it cannot be regarded as having been presented in accordance with law. Gopal Sah v. Janki Koer I.L.R. (1895) Cal.217 was also cited with reference to the same point.
9. In my opinion this reasoning and these authorities do not properly apply where, as in the present case, the required particulars are given but wrongly given owing to a bona fide mistake due to the applicant's ignorance of the real facts. It appears from the course of proceedings that the judgment-creditor in this case did not at that time desire to proceed with his application for transfer of the decree. The next proceedings which he took were by way of darkhasts against the present appellant filed in the Court at Poona. Under those circumstances, I can see no reason why the decree-holder should be required to amend an application for which at the time he had no further use. The question whether the application of March 26, 1919, was effectual to save limitation for the next application and to bring it in time must depend, I think, on the position at the date of the latter application. At that date (i.e. on July 21, 1919) the plaintiff did not know who the legal representative of Shankar was. It was not possible, therefore, to mention his name, or to amend his former application.
10. In Samia Pillai v. Chockalinga Chettiar it was held that where there has been an application for execution made by the party entitled to make it, it is to be regarded as a step-in-aid of execution within the meaning of the Indian Limitation Act although by mistake a deceased judgment-debtor is named as the person against whom execution in sought. That case was followed in Bipin Behari Mitter v. Bibi Zohra, which I have already referred to. These cases are clearly against the appellant's contention on this issue, and, in my opinion, they are not distinguishable in principle. I think, therefore, that Mr. Justice Barlee was justified in following these decisions in preference to that in Madho Prasad v. Kesho Prasad, especially in view of the general principle approved of by this and other High Courts that these provisions in the Limitation Act should be construed liberally in favour of the judgment-creditor-see Haridas Nanabhai v. Vithaldas Kisandas, and Vishvanath v. Narsu (1920) 23 Bom. L.R. 107 Mr. Gumaste himself fully accepted this principle.
11. That brings me to the next point argued on the appellant's behalf, which is that the second application (viz., the oral application for time) of July 2, 1919, was not in any case an application in accordance with law to take a step-in-aid of execution. The reasons for this proposition were not altogether easy to follow. They must be deduced from the authorities cited, but the principal reason appears to be that there was no execution application pending at the time the application was made. In Kuppuswami Chettiar v. Rajagopala Aiyar I.L.R. (1921) Mad. 466the point decided was that a statement filed by a decree-holder objecting to the judgment-debtor's application to enter up satisfaction of the decree is not a step-in-aid of execution, especially when no application for execution was then pending, and Mr. Justice Ayling expressed the view that an application to be a step-in-aid of execution should be one made in a pending execution application. There is, however, another decision of the same High Court in the same volume, Sankara Nainar v. Thangamma I.L.R. (1921) Mad. 202 where it was held that an application to be a step-in-aid of execution need not be made in a pending execution. That being so it is not easy to say what the view of the Madras High Court on this question really is. Laxmiram Lattubhai v. Balashankar Veniram I.L.R. (1914) Bom. 20 : 16 Bom. L.R. 612 is an authority against the view that there must necessarily be a pending execution proceeding in order that an application may be regarded as a step-in-aid of execution. This case was referred to by Mr. Justice Ayling in Kuppuswami Chettiar v. Rajagopala Aiyar, at p. 71, where he says :
As a matter of fact in that case an execution petition filed by the objector apparently was pending at any rate at the time when the insolvency petition was filed.
12. That no doubt was so. But what the Court in Laxmiram Lallubhai v. Balashankar Veniram held to be sufficient to save limitation was an appeal by the judgment-creditor against an order declaring the judgment-debtor to be an insolvent, or rather a series of appeals arising from the insolvency proceedings. It is possible on the facts stated in the report that the first of these appeals may have been filed while the execution proceedings were still pending, but the later appeals were undoubtedly filed long afterwards and nevertheless all the appeals were held to be steps-in-aid of execution. The case can, therefore, hardly be distinguished in the manner suggested, though it is true that the circumstances were peculiar and exceptional.
13. More important than Laxmiram Lallubhai v. Balashankar Veniram, in my opinion, are the cases to which reference has already been made in which it has been held that an application to the Court which passed the decree for transfer of the decree under Section 39 of the Code is a step-in-aid of execution. Where transfer of a decree is asked for, there need not be and frequently has not been any prior application for execution and that seems to me to dispose of the contention that there cannot be an application to take a step-in-aid unless there is a pending application for execution of the decree. Moreover, with all respect to the learned Judges who decided Kuppuswami Chettiar v. Rajagopala Aiyar, I can find no warrant in the language of Article 182, Clause (5), for the proposition laid down by Mr. Justice Ayling at p. 469 of the report in that case where he says:
The article classes together an application for execution and an application to take some step-in-aid of execution : and the latter words appear to be intended to cover an application which is not an initial application for execution, but is an application to take some step to advance an execution proceeding, which is already pending, e.g., application to bring to sale properties already under attachment.
14. No doubt in the majority of cases that would be so. But I am not prepared to accept the view that an application to take a step-in-aid of execution necessarily presupposes as an invariable rule a pending application for execution. Mr. Justice Barlee did not discuss this point. He says 'the application in the present case presupposes the existence of a proceeding: you cannot adjourn a non-existent proceeding'. That is so, of course, but it omits to take account of the fact that the proceeding which was pending was not an execution application, only an application for a step-in-aid. That, however, for the reasons stated, I consider immaterial.
15. I must mention one or two other cases cited by Mr. Gumaste. In Murgeppa Mudiwallappa v. Basawantro I.L.R. (1913) Bom. 559 : 15 Bom. L.R. 557 the actual point decided was that an application by the representative of a judgment-creditor to obtain a certificate under the Succession Certificate Act is not a step-in-aid of execution. The observations in the judgment of Mr. Justice Batchelor on which reliance is placed are at p. 561:
It appears to us that an application to the Court to obtain a succession certificate is a perfectly independent thing, and although the ultimate object of it may be to use the certificate when obtained in order to further execution of the decree, none-the-less we think it impossible to say that the application to get the certificate is an application to the proper Court to take some step-in-aid. We think also that the occurrence of the words 'proper Court' also tends to support this conclusion. An application to obtain a succession certificate may be made in one of several Courts.
16. And again at p. 562 :
In our opinion the application to obtain the succession certificate was a mere preparation or preliminary, and cannot be said to have been an application asking the Court to take a step-in-aid of execution.
17. The learned Judge referred to Kunhi v. Seshagiri I.L.R. (1882) Mad. 141 and appeared to question the correctness of that decision, though he says:
But we are so uncertain as to what was the state of facts upon which that decision was pronounced that we cannot regard the decision as adverse to our present opinion.
18. This case may perhaps be said to afford some support to Mr. Gumaste's argument. But there is another decision, Sheshadasacharya v. Bhima-charya I.L.R. (1912) Bom. 317 : 14 Bom. L.R. 1204 to which Mr. Justice Batchelor was also a party, which it is extremely difficult to reconcile with that just cited. Here it was held that an application for time to obtain copies of certain documents required by the Code was a step-in-aid of execution, and it is noteworthy that the Court followed Haridas Nanabhai v. Vithaldas Kisandas, which itself is based upon the decision in Kunhi v. Seshagiri I.L.R. (1913) Mad. 695 In Vishvanath v. Narsu, to which reference has been made on another point, it was similarly held that an application for time to enable the decree-holder to ascertain the share of the judgment-debtor in the property put up for sale is a step-in-aid of execution, and in Abdul Kader Rowther v. Krishnan Malaval Nair I.L.R. (1913) Mad.695 the proposition was laid down in general terms that an application by the decree-holder for an adjournment to enable him to produce records or evidence necessary to effectively conduct the execution proceedings further is an application to get an order in aid of execution. In that case Haridas Nanabhai v. Vithaldas Kisandas and Kunhi v. Seshagiri were followed.
19. The weakness of Mr. Gumaste's argument on this point is, I think, apparent from his answer to the Court's question what in his view the judgment-creditor ought to have done on his becoming aware of the judgment-debtor's death. The learned advocate for the appellant suggested that he should have withdrawn his application for transfer of the decree, or he should have brought the legal representative on the record, and according to him the proceedings would have been in order if the legal representative had been brought on the record during the time allowed by the Court. But, as I have explained already, the judgment-creditor dropped the application for transfer because apparently he had then no need to go on with it. The absence of a formal application for the withdrawal of that application surely cannot stand in his way. On the death of the judgment-debtor it was not essential for him to amend the record of former applications. An application previously made could be continued by the substitution of the name of the legal representative, or a fresh application for execution could be made against the legal representative-see Purushottam v. Rajbai I.L.R. (1909) Bom. 142 : 11 Bom. L.R. 1358 and an unreported decision of this Court in Shankar v. Harilal (1931) F.A. No. 300 of 1929. Applications for execution against the legal representative of the judgment-debtor were subsequently made in 1922 and 1925. But the material date for our purpose seems to me to be July 21, 1919, i.e., the date of the application for time, and if it was a valid step-in-aid on that date, as Mr. Gumaste appears to admit and as the authorities show, it could not cease to become so because it was not followed up by any further proceeding in continuation of the same application.
20. I am of opinion for these reasons that the applications of March 26, 1919, and July 21, 1919, were both effective as applications to take steps-in-aid of execution, as held by Mr. Justice Barlee, and this appeal fails and must be dismissed with costs.
N.J. Wadia, J.
21. Two questions arise in this appeal: firstly, whether the application of March 26, 1919, by which the decree-holder applied to transfer the decree to the appeal Court, was a valid application for a step-in-aid even though the person who was mentioned in it as the judgment-debtor was dead. Admittedly this mention was made under a bona fide mistake. On this point it seems to me that the view taken in Bipin Behari Mitter v. Bibi Zohra I.L.R. (1908) Cal. 1047 which followed two earlier decisions in Balkishen Das v. Bedmati Koer I.L.R. (1892) Cal. 388 and Samia Pillai v. Chockalinga Chettiar I.L.R. (1893) Mad. 76 is the correct view. So long as an application for execution or a step-in-aid of execution is taken by the party entitled to make the application or to take the step, it must be regarded as a valid one even though under a bona fide mistake a person already dead has been named as the judgment-debtor. The mistake is one which can easily be remedied under the provisions of Order XXI, Rule 17, of the Civil Procedure Code. The reasoning in Madho Prasad v. Kesho Prasad I.L.R. (1897) All. 337, in support of the contrary view does not appear to me, with respect, to be very convincing. It was held in that case that applications for the execution of a decree made after the death of the judgment-debtor, and without either any representative of the judgment-debtor being brought upon the record or there being any subsisting attachment of the property against which execution is sought, are not good applications for the purpose of saving limitation. The only reason given in support of this view was that to treat such applications as valid would amount to introducing a novel system by which a decree could be executed against the estate of a deceased judgment-debtor without any notice to his representative, and without any one to protect the property being brought upon the record. But there is no reason why even if such an application were allowed the execution proceedings should necessarily continue without a representative of the deceased judgment-debtor being brought upon the record under the provisions of Order XXI, Rule 17, of the Code. From the facts stated in the judgment in that case it appears possible that the omission on the part of the decree-holder to bring on record the representative of the deceased judgment-debtor may not have been due to a mistake but may have been deliberate. It is stated in the judgment that the decree-holder appears to have assumed that he had a decree in rent which he could proceed to execute without bringing upon the record or giving notice to any representatives of the deceased judgment-debtor. Whether the conclusion arrived at in that case was influenced to some extent by this fact or not, I agree with the view taken by Mr. Justice Barlee that the decision in Bifiin Behari Mitter v. Bibi Zohra should be followed.
22. The next question is, whether even if the application of March 26, 1919, was a valid one when it was made, it became a nullity when it was subsequently ascertained from the report of the bailiff that the judgment-debtor was dead, and could not therefore be treated as a subsisting application when the oral application of July 21, 1919, was made. It has been argued that no step-in-aid of execution can be taken unless an application for execution is pending. The decision in Kuppuswami Chettiar v. Raja-gopala Aiyar I.L.R. (1921) Mad. 466 is the only one which has been cited before us in support of this view. The contrary view was taken by the same High Court in Sankara Nainar v. Thangarnma I.L.R. (1921) Mad. 202 The words of Article 182, Clause (5), of the Indian Limitation Act, do not appear to me to imply necessarily that an application for execution must be pending for the purposes of that Article, and I am not myself prepared to agree with the view taken in Kuppuswami Chettiar v. Rajagopala Aiyar. It seems to me that to interpret Article 182, Clause (5), of the Indian Limitation Act, in the way suggested would be to unduly restrict its scope. But though I take the view that it is not necessary for a valid step-in-aid of execution that an application for execution must have been made, I think that in this case, unless the application of March 26, 1919, was pending at the time when the subsequent application of July 21, 1919, was made, it would be difficult to treat the latter application as a valid step-in-aid of execution. The application of July 21, 1919, for time to ascertain the names of the legal representatives of the judgment-debtor mentioned in the earlier application could not stand by itself, and if the first application had become a nullity and had been disposed of, the subsequent application could not by itself be treated as a step-in-aid. I agree, however, with Mr. Justice Barlee's view that the application of March 26, 1919, had not become a nullity. It had been validly made, and it is conceded that it must be treated as a pending application at least till the bailiff's report was received. That report was followed by the judgment-creditor's application of July 21, 1919, to ascertain the names of the legal representatives of the deceased. Under Order XXI, Rule 17, it was open to the judgment-creditor to apply for, and the Court had power to grant, permission to amend the application by bringing on record the names of the legal representatives. In the course of his arguments on this point it has been conceded by Mr. Gumaste that after the bailiff's report had been received it was open to the judgment-creditor either to withdraw his application of March 26,1919, or to bring on record the heirs of the deceased judgment-debtor. If the latter alternative was open to him, I see no reason why it should be held that it was not open to him to apply for time to bring the legal representatives upon the record. In my view, therefore, the application of July 21, 1919, was made to amend an application pending at that time and was a valid step-in-aid. The fact that after time had been granted to him to ascertain the names of the legal representatives of the judgment-debtor he took no steps to bring the legal representatives on the record, and that on August 15, 1919, the application was dismissed, does not, in my opinion, affect the question. We have to decide whether on the date on which that application was-made it was a valid step-in-aid of execution. This view receives support from the decision in Vishvanath v. Narsu (1920) 45 Bom. L.R. 107 In that case it was held that an application for time to enable the decree-holder to ascertain the share of the judgment-debtor in the property put up for sale was a step-in-aid of execution under Article 182, Clause (5), of the Indian Limitation Act, and that the fact that subsequently the decree-holder asked for adjournments and allowed the darkhast to drop has no bearing upon the question that the application was made in order to take a step-in-aid of execution. The application of July 21, 1919, must, therefore, in my opinion, be treated as a valid step-in-aid of execution. For these reasons, I agree that the appeal must be dismissed with costs.