1. This is a decree-holder's appeal against a decision of the lower appellate Court rejecting an application for amendment of his darkhast on the ground of the 12 years' rule provided by Section 48 of the Civil Procedure Code. He asked for execution of his decree by attachment and sale of certain landed property of the judgment-debtor. The judgment-debtor being an agriculturist, the papers were sent to the Collector and the Collector took nine years to dispose of the application. The decree was not fully satisfied by the sale held by the Collector and the decree-holder thereupon asked for amendment of his application by the addition of a prayer for the attachment and sale of a house belonging to the judgment-debtor. The amendment was allowed by the trial Court; but the lower appellate Court refused it and the decree-holder now comes in appeal to this Court.
2. There are two ways of regarding the decree-holder's application for amendment of the decree. It can be regarded as a new application for execution, or it can be regarded as an application for the amendment of an existing prayer for execution; and in defence of the lower Court's decision it is argued that in either case the application is barred by time. It was argued for the decree-holder that the case fell within the provisions of Clause 11(3) of the third schedule to the Civil Procedure Code, so that the decree-holder was entitled to exclude the period during which the matter had been before the Collector even for the purposes of the 12 years' rule. We are prepared to agree that he would be entitled to exclude that period if the provisions of Clause 11 were otherwise satisfied. The scheme of the clause is that during the period referred to in Sub-clause (1) the judgment-debtor should not be able to alienate the property in any way without the permission of the Collector, and no civil Court may issue any process against the property; and then there follows Sub-clause (2), which says that during the 'same period' no civil Court should issue any process of execution in respect of any decree which the Collector is required to execute; and then by Sub-clause (3) the 'same period' shall be excluded in calculating the period of limitation applicable to the execution of any decree 'affected by the provisions' of this paragraph in respect of any remedy of which the decree-holder has been temporarily deprived. The 'same period' occurring in Sub-clause (2) and again in Sub-clause (3) is clearly the period referred to in Sub-clause (1), so that a decree-holder would be entitled to exclude the period during which the execution had been before the Collector provided that the rest of the clause were satisfied. Unfortunately in this case it is impossible to hold that the provisions of the clause have been altogether satisfied by the decree-holder. The words 'in respect of any remedy of which the decree-holder has been temporarily deprived' are now being applied by the decree-holder to the house of which he is now seeking attachment and sale. But it was always open to him to include the house in his application for execution, and it cannot be said that the fact of the sale of the land having been before the Collector for so many years deprived the decree-holder of his remedy to include the house in his application for execution. If therefore the decree-holder is to succeed, he must succeed on some ground other than the provisions of Clause 11 of Schedule III. What he says is that the application for amendment is nothing more than an application for amendment in a pending darkhast and is no more affected by the 12 years' rule than any other matter arising in the same darkhast. That it is an amendment of the darkhast is strongly contested by the judgment-debtor, whose learned advocate argues that nothing remained to be done out of all that the decree-holder had asked the Court to do in his original application, and therefore the application for amendment can be regarded only as a new application for execution. But we do not think that this argument is justified in the circumstances of the present case. It is true that the property of which the judgment-debtor applied for sale has been sold; but no order for costs had been passed at the time when the application for amendment was made, and it follows that the application for execution was still in being. It is no doubt a technicality; but we are unable to see any reason why the decree-holder should not be entitled to avail himself of a technicality in 'his favour, since it is an undoubted fact that the judgment-debtor still owes him money and has not paid him.
3. The lower appellate Court has relied upon a series of decisions which take the view that any application for the addition of property to the list of properties mentioned in the original application for attachment and sale is not an application for amendment of the darkhast but a new application for execution. The decisions relied upon are of two kinds. The first class deals with applications which in effect seek a new form of execution; see for example the case of Maharaj Bahadur v. A.H. Forbes  A.I.R.P.C. 209where the later applications were essentially different in character from the earlier application, which was in effect an application for execution of a money decree as opposed to applications for execution of a rent decree. The other class of decisions are decisions which hold that the addition of any property to the list of property given in the original darkhast for attachment and sale amounts to an execution of a different kind and therefore a new execution. On the first class of decisions it is needless to comment; an application for amendment which is in effect an application that changes the nature of the execution must be deemed to be a new application for execution. But we have not been referred to any decision relating to the other class of cases which gives reasons for saying that an addition to the list of property given in the original application is a new application for execution. All these decisions either refer to previous decisions which themselves give no reasons or proceed upon a wrong basis through failure to note the distinction between the two classes of cases. I do not propose to refer any further to such decisions.
4. Reliance was placed by the decree-holder upon a decision of the Patna High Court in Gajanand Sha v. Dayanand Thakur I.L.R (1942) Pat. 838 which says that Order XXI, Rules 17, a rule providing for amendments in an application for execution, deals only with formal amendments and not with substitutions of one property for another property fully described in the original application. But merely because Rule 17 provides only for formal amendments, that would not in itself prevent a Court from allowing a substantial amendment. As was pointed out by the Calcutta High Court in Naurangilal Marwari v. Charubala Dasee (1932) I.L.R. 59 Cal. 1266 in connection with Rules 17 of Order XXI (p. 1269):-.because the rule requires a preliminary scrutiny of certain formalities before the petition can get upon the file, it is actually argued that that means that after it has got upon the file nobody can ever get his petition amended even with the leave of the court-a thing which is almost ludicrous as an argument.
We are in entire agreement with the view expressed by a bench of the Calcutta High Court in Shekendar Ali Miya v. Adbul Gafur Chaudhuri  2 Cal. 251. The learned Judges there said (p. 256):-
Provided the application for execution is in accordance with law and has been duly registered, 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. Of course, to accept 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 execution proceedings, but in a case such as that with which we are now dealing, in which it was discovered on the objection of the judgment-debtors themselves that execution could not proceed against the attached properties, I am of opinion that the Court would exercise a reasonable discretion in accepting a supplementary petition such as that which was filed by the decree-holders on November 10, 1938.
In our opinion the Court had a reasonable discretion to accept the present amendment. The decree-holder is not shown to have been guilty of any lack of diligence in prosecuting his execution, and we think it would be altogether unfair to him to refuse his amendment in view of the circumstances of the case.
5. I should mention that the Courts look with disfavour upon decree-holders who seek to attach and sell more property in execution than is absolutely necessary for the purposes of satisfying the decree, and that disfavour is reflected in the proviso to Sub-rule (4) of Rule 17 of Order XXI. It was therefore the duty of the decree-holder to apply for the attachment and sale of only so much property as he thought would be necessary to satisfy his decree, and it would be unfair to penalise him for his failure to apply for the attachment and sale of more property merely because after nine years the Collector has failed to secure a price which would satisfy the decree.
6. We allow the appeal and direct that execution should proceed on the basis of the decree-holder's application for amendment. The decree-holder will get his costs in the lower appellate Court and in this Court.