Puttaraj Urs, J.
1. The point involved in this appeal is whether a decree-holder can be allowed to proceed against the properties which were not included in the original application for execution but a schedule of it was filed more than twelve years after the application was first filed. The identical point arose in S.A. No. 12 of 1948-49, and there was a difference of opinion between the two Judges that heard the same, and it has been referred to a Full Bench. The result of this case will follow the decision of the Full Bench. It is but right that the counsel in this case also should be given an opportunity to argue this point before the Full Bench when that case is taken up.
2. Therefore, this case also will be referred to the Full Bench so that the advocate on both sides may have an opportunity to argue their respective cases.
3. I agree.
4. The points referred to the Full Bench in Second Appeal NO. 12 of 1948-49 are: (1) Whether the failure to file a schedule of immovable properties along with the execution application is a mere defect which can be cured by filing a schedule of such properties more than twelve years after the date of the decree; (2) Whether the application of a decree-holder twelve years after the decree against certain immovable properties not mentioned in the original application can be considered as a continuation of the original application which is pending or a fresh application.
5. The first point arises also in S.A. No. 341 of 48-49 and it has also been referred to the Full Bench. The second point is simpler than the first point and there is no divergence of opinion worth considering on this point. It has to be stated at the outset that the first application contemplated in both the points referred to above must be execution application filed within time. Otherwise, the first application itself within time. Otherwise, the first application itself has to be dismissed as barred by time and no question of a second application to amend it arises. The first point evidently refers to an execution application which is defective on the ground that no schedule of immovable property has been filed though there is a prayer for proceeding against such property. The point deals with an attempt to remedy to defect after the period of limitation. The second point evidently refer to an execution application which is not defective as a schedule of immovable property to be proceeded against is given in it. The point does not deal with an attempt to remedy a defect. It deals with an attempt to get relief not claimed in the execution application after the claim for such a relief is barred.
6. When there is a legal and valid execution application filed within time and in it certain reliefs are prayed for, can a decree-holder file after the period of limitation an interlocutory application praying for other reliefs and claimed in the execution application. It is clear that if he files a fresh execution application, it will be dismissed as barred by time. It cannot be said that he can circumvent the provisions of limitation Act by filing application for amendment of the prayer in the pending execution application so as to enable him to obtain a relief barred by time. Such methods to overcome statutes of limitation are nowhere recognized. As observed in Weldony v. Neal, (1887) 19 Q. B. D. 394; (56 L. J. Q. B. 621):
'A plaintiff will not be allowed to amend by setting up fresh claims in respect of caused of action which since the issue of the writ have become barred by the statute of Limitation.'
As observed in this case by Lord Esher M. R. :
'If an amendment be allowed to set up a cause of auction which if the writ were issued in respect thereof at the date of the amendment, would be barred by the Statute of Limitation, it would be allowing the plaintiff to take advantage of her former writ to defeat the Statute and taking away an existing right from the defendant.'
7. As regard the decisions of other High Courts, we may first refer to the decision of Allahabad High Court in Boandhusing v. Kayastha Trading Bank Ltd., Gorakhpur : AIR1931All134 , as it is relied on in a decision of our own High Court reported in 16 Mys. L J. 461. It was observed in the Allahabad case that :
'An application to attach new property is a fresh application within the meaning Section 48, Civil P.C. and if such an application is made more than 12 years after the date of the decree it cannot be entertained. The mere fact that the execution proceeding were still pending and had not been struck off would not be sufficient to save limitation.'
The next case of Allahabad High Court that can be referred to is the Full Bench decision Shivashankar Das v. Yusuff Hassan : AIR1934All481 . In that case, Sulaiman C.J. relied on Bandhu Singh v. Kayastha Trading Bank Ltd., Gorakhpur : AIR1931All134 and Ram Rattan v. Data Kaur, A. I. R. (15) 1928 Lah. 808: (120 I. C. 622), as well as on Krishna Dayal v. Sakina Bibi, 34 I.C. 27 : (A. I. R. (4) 1917 Pat. 485), referred to in Bandhu Singh v. Kayastha Trading Bank Ltd., Gorakhpur : AIR1931All134 . He was of opinion :
'Where the subsequent application is in character and substance different from the previous one or any relief different form that claimed in the previous one is asked for, or any new property is sought to be attached or sold, it cannot be treated as a mere revival but is a fresh application within the meaning of Section 48, Civil P.C.'
Though the other Judges differed from him on another aspect of the matter, their view on the point under consideration was the same as that the Sulaiman C.J. The observation of Rachhpal Singh J. is as follows:
'The case of Hayatunessa v. Achia Khatun : AIR1924Cal131 appears to be distinguishable. That was a case in which the decree-holder had made an application for execution of a mortgage decree on 29th June 1920, in which he had mentioned certain properties against which he wanted to proceed. On 21st August he put in a petition asking for permission to be allowed to add certain properties to the list given in his original application. This prayer appeared to have been made after 12 years from the date of the decree and so it was held that it was time barred. But in the case before us, the decree-holders do not seek to add any new properties, but all that they ask is that a part of the mortgaged property which has not been sold as yet should be put to sale. Similarly, the case of Krishna Dayal Gir v. Sakina Bibi, 34 I. C. 27: (A. I. R. (4) 1917 Pat. 485), appears to be distinguishable. There is decree-holder had made several applications for execution, one of them was made on 28th of July, 1911. It was struck off on 29th of June 1912, after the decree-holder recovered a part of the decree-money. After that another application was made on 6th of September 1912, which was dismissed for want of prosecuting on 5th of December 1912. Then another application was made on 18th of July 1913 and it was contended before the Court that this 1913 and it was contended before the Court that this last application was in continuation of the application of 28th of July 1911. The learned Judge rejected this contention. The properties sought to be sold under the last application were not the same as those mentioned in the application of 1911. In the case before us the fact are different. Here a prayer had been made by the decree-holders that thy should be allowed to proceed against other mortgaged properties; in case the sale proceeds of a part of the mortgaged property proved insufficient for the satisfaction of the decree.'
While all the three Judges agreed, that an application filed after period of limitation for proceeding against properties not included in the relief column of the pending application is not maintainable, there was difference of opinion as to whether, by stating in the first application that the mortgaged properties not given in the schedule would be proceeded against later, the decree-holder had or had not claimed relief against all the mortgaged properties. As stated in this case:
'In Harsarup v. Balgovind, 18 All. 9 : (1895 A. W. N. 133), a second application for attachment and sale of property was held not to be in continuance for the previous application for arrest.'
8. The observation of Allsop J. in Bhanpal Singh v. Siyaram A.I. R. (29) 1942 ALL. 442 : (203) I. C. 590) it may be stated with respect deserves consideration:
'It is incorrect to say that there is some general application for the execution of a decree and that the various steps in aid of executing are subsidiary thereto. Their is not such thing as an application for execution of a decree property so called. There is an application for the attachment and sale of certain property in execution of a decree or an application for the arrest of the judgment-debtor in execution of a decree or an application asking the Court to take some other steps. If on objection take it is found by the Court that the steps mentioned in the particular application cannot be taken, the application must be dismissed. The Court cannot give opportunity to the decree-holder to amend it as to execute the decree by some other means and thus allow the decree-holder in effect to present a new application by amending the old one when the presentation of a new application is barred by limitation'. There are a large number of cases of Calcutta High Court on this aspect of the matter. The observation of Field J. in Sreenath Gooh v. Yusoof Khan, 7 Cal 556: (9 C. L. R. 334), that : 'If a supplementary list of property were allowed to be in put in after the expiration of twelve years the essential portion of the law would be practically defeated'
was followed with approval by Sulaiman C. J. in Shivashankar Das v. Yusuff Hassan : AIR1934All481 . In Hayatunnissa v. Achia Khatun : AIR1924Cal131 it was held:
'A decree-holder should not be allowed by subsequent application made after the expiry of the period of limitation of execution of the decree to add other properties to the list given in his original application presented within the period of Limitation.'
It would be sufficient to mention Badri Narayan v. Baidyanath : AIR1935Cal143 , Aziz Rahman v. Bepin Beharai : AIR1938Cal162 and Prafulla Nalini Dassi v. Nrishingha Kumari Dasi : AIR1942Cal255 as other authorities of the Calcutta High Court on the point.
9. As regards Lahore High Court, the opinion of Tekchand J. with which Bhide J. agreed Ram Rathan v. Datar Kaur, A.I.R. (15) 1928 Lah. 808: (120 I.C. 622), is as follows:
'The present application asking for permission is file a supplementary list of the properties against which the decree-holder wanted to proceed was not made till 18th November 1925 which is more than 21 years after date of the decree. If the contention of the appellant in a case like this were accepted, the clear provisions in Section 48, will be rendered nugatory.'
This decision has been relied on in a number of later decision of other High Courts including the decision in 16 Mys L.J.R. 461. As regards Madras, it is sufficient to refer to Alapati Syamaladoss v. Subhayya : AIR1927Mad347 in which it was held:
'A decree-holder cannot file a complete execution application before the expiry of the twelve years prescribed by Section 48, Civil P.C. and then after the expiry of that period apply for execution against other items of property, treating that application as one for amendment of the previous application. No peculiar equity lies in over-riding limitation. The law which limits the period within which a decree is to be executed is neither more nor less just than the law which authorises the decree'.
Ram Ran Bijaya Prasad Singh v. Kesho Prasad, 191 I.C. 492 : (A.I.R. (28) 1941 Pat. 635) a case of Patna High Court and Prayagdas v. Mt. Indirabai, A.I.R. (35) 1948 Nag. 189: (I.L.R. (1947) Nag. 497), support this view.
10. The decision in 16 Mys. L. J. R. 461 is as follows::
'An application made after 12 years from the date of the decree for permission to proceed against the judgment debtor's immovable properties while an execution petition filed long before 12 years, which contained no relief against the immovable properties was still pending is a fresh application which will be governed by Section 48, Civil P.C. and hence is barred.'
This opinion is in accordance with that expressed in decision of other High Courts and there is no reason to differ from it. The result is that application of decree-holder twelve years after the decree against certain immovable properties mentioned in the schedule given in the original application has to be considered as a fresh application.
11. The first point referred to the Full Bench deals, as already stated, with an attempt to remedy the defect in a defective execution application. The point has to be considered with reference to Sub-rule (2) of Rule 17 of Order 21, Civil P.C. That sub-rule deals with amendment of certain defective execution applications, and it lays down that a defective execution application, when amended remedying the defect, may be regarded as a valid application, filed on the date on which it was presented. Rule 17, Clauses (1) and (2) states as follows:
'(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 11-14 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, it shall be deemed to have been an application in accordance with law and presented on the date when it was first presented.'
It will be noticed that Order 21, Rule 17, deals with amendment of an execution application which is not in accordance with Rules 11 to 14 of Order 21, and it has no reference to execution applications which are not defective under Rules 11 to 14. When an execution application is filed, the Court is bound to examine it as is clear by the use of the word 'shall' in Rule 17(1). If it is defective, being not in accordance with Rules 11 to 14, the Court has the option of either rejecting the execution application or of giving time for its rectification. If the Court does its duty, on receiving an application, by ascertaining whether requirements of Rules 11 to 14 are complied with, the party is not prejudiced even of the application is rejected, though all this happens on the last day of limitation; for the applicant has got the chance of immediately filing a fresh execution application which is not defective. If, on the other hand, time is given to rectify the defect, by, for instance, directing the furnishing of description of the property when that had not been given in a case in which attachment of immovable properties had been prayed for, the applicant does not suffer, as Sub-rule (2) says that even when the defect is rectified after the period of limitation is over, it must be taken for purposes such as limitation, as if the amended application had been filed in time. It is clear that the rule does not say that the order directing the rectification of mistake should be made by the Court within the time by which period of limitation for the filing of a valid execution application expires. It does not say that the defect must be rectified within such time. In fact, all this cannot be conceived when a defective execution application is filed on the evening of the last day of limitation, and it is clear that Order 21, Rule 17, is applicable even to such cases. There is nothing in Order 21, Rule 17, which comes in the way of the Court permitting, even after the period of limitation, the defect being remedied. There is nothing in Clause (1) or (2) of Order 21, Rule 17, justifying the opinion that an order for amendment cannot be passed after the execution application is registered, though it is true that its power to reject it has to be exercised on its receipt and before it is registered. If the execution application is not rejected, it follows that the Court has exercised its discretion to get the defect remedied and nothing comes in the way of the Court getting this done at a later stage. Whatever may be the time at which the defect is remedied, the amendment will take effect from the date on which the execution application was filed and no question of limitation arises. Whatever might have been the law before Sub-rule (2) of Rule 17 of Order 21 was introduced, this sub-rule enables a defective application to be retrospectively validated as in the case of Section 149 which was introduced for a similar purpose.
12. The decision which is usually relied on in support of the opposite view is the one reported in Asgar Ali v. Troilokya Nath, 17 Cal. 631. It is a Full Bench decision in which it was held that the Court has no power to allow amendment of defective applications after they are registered. Though it is a case which was decided in 1890 before the Sub-clause (2) of Rule 17 of Order 21 was introduced, it has been followed in Hayat unnissa v. Achia Khatun. : AIR1924Cal131 . The High Court of Calcutta was of a different view in J.G. Mag. gregor v. Tarinichurn Sircar, 14 Cal. 124 and in one or two later decision of that Court, such as Gnanendra Kumar v. Shyama Sunder 22 C. W. N. 540 (A. I.R. (5) 1918 Cal. 73); Asgar Ali v. Troilokya Nath, 17 Cal. 631 has not been followed. There is, moreover, a Privy Council decision, Hussain Asgar Ali v. Ramditta Ma , in which the principle upheld in Asgar Ali v. Troilokya Nath, 17 Cal. 631 was not accepted. The argument for the appellants printed at p. 663, is as follows:
'The original application to execute the decree was not in accordance with Order 21, Rule 11, and the Court had not power to allow the amendments. Under Order 21, Rule 17, the Court has power to allow defects to be amended only 'on receiving' the application, but in this case the amendments was allowed about a year later.'
The decision printed at pages 668 and 669 is as follows:
'The only other question which has been argued on the appeal is as to the omissions in the application for execution, which led to its return to the respondents in the lower Court for amendment. It is contended for the appellants that no amendment should have been allowed, and that the application should have been rejected. Under Order, 21, Rule 17, Civil P.G. the executing Court clearly had a discretion to allow the amendments, and the appellate Court thought that the discretion had been properly exercised.'
This Privy Council decision has not been evidently relied on, in cases which have not agreed with Asgar Ali v. Troilokya Nath, 17 Cal. 631 as the effect of the decision in the former decision cannot be noticed fully unless the argument of the appellant is also read.
13. The point came up for consideration in a number of cases in other High Courts, and the view expressed in Asgar Ali v. Troilokya Nath, 17 Ca. 631 has not been accepted. In Pitchayya v. Ankneedu, A. I. R. (11) 1924 Mad. 367: (76 I. C. 750) it was held:
'The words 'on receiving as application for the execution of a decree' in Rule 17, are not intended to make a party suffer for the failure of the Court establishment, which checks plaints and execution petitions on their presentation, to noticed at once all defects in any application that may be received and these words do not preclude a Court from making an order allowing a defect to be remedied at a later stage. Asgar Ali v. Troilokya Nath, 17 C. 631 Sulimullah Bahadu v. Sainaddi Sarkar, 18 C.L.J. 538: (22 I.C. 337) Dissented Varadiah v. Venkata Perumal, 1914 M. W. N. 157: (21 I. C. 782) Foli).'
According to Muthu Krishna v. Viswalinga, : AIR1940Mad893 , 'the mere fact that a list of the properties was not given in the original execution application does not deprive the decree-holder of the benefit of Order 21, Rule 17 (2).'
In Nambudiripad v. Brahmadathan nambudiripad, : (1945)1MLJ447 , it was held:
'There is no option discretion in the Court with regard to ascertaining whether the requirements of Rules 11 to 14 of Order 21, Civil P.C., have been complied with. Where an execution petition after referring to movables also contained a prayer for the sale of immovable property but no particulars of the properties were given, it is the duty of the Court to return the petition for amendment for the purpose of having the defects remedied. The amendment can be made even after the expiry of the twelve years period of limitation prescribed by Section 48, Civil P.C.'
That the view of the other High Courts is the same is clear from Jiwat Dube v. Kalicharan Bam, 20 ALL. 478 : (1898 A. W. N. 128), Ganesh Das v. Fattehchand, A. I. R. (7) 1920 Lab. 122: (55 I. C. 16), Sheogobind Ram v. Mt. Kishun Bansikuar, A. I. R. (19) 1932 Pat. 222 : (11 Pat 546), Ahmad Ali v. Mt. Fatima Sultan, A.I.R. (21) 1934 Pesh. 40: (152 I. C. 443). In re Janki Prasad, A.I.R. (24) Bom. 365: (I.L.R. (1937) Bom. 691) and Mahomed Bhai v. M.A. Dawood Bhai & Co., A.I.R. (25) 1938 Bom. 405 : I.L.R. (1938) Bom. 708). It is, however, the last case that we would like to quote from at some length for a clear exposition of the law on the point. Be amount C.J. after noting the difference of opinion on the point, observed:
'In that state of the authorities, one has to look rather critically at the words of the Rule, and I am disposed to agree that if Sub-rule (1), which I have already referred to, stood alone, the view taken in Asgar Ali v. Troilokya nath, 17 Cal. 631 would be right, and I should say that the Rule only applies when the Court is considering taking the application on its file. But then one has to look at the later sub-rules. Sub-rule (2) is not relevant to the argument, for it merely directs that the amendment shall relate back to the presentation of the application. But Sub-rule (3) provides that 'every amendment made under this Rule shall be signed or initialled by the Judge' and Sub-rule (4) provides that when the application is admitted, the Court shall enter in the proper register a note of the application and the date on which it was made, and shall, subject to the provisions thereinafter contained, order execution of the decree according to the nature of the application. That sub-rule seems to contemplate, first of all a ministerial act in entering a note of the application in the proper register, and secondly, a judicial act, namely, the ordering of the execution of the decree, and the doing of both acts is mandatory. But that judicial act could not in this case, have been performed unless the application was amended, and that would probably be so in many cases. So that the direction in Sub-rule (4) that an order for execution shall be made, certainly, I think, suggest that the application must be put in order at the time when the Court is considering whether the order for execution should be made or not. That view is also strongly supported to my mind by Sub-rule (3), which requires every amendment made under the Rule to be signed or initialled by the Judge. Clearly , the Judge could not be expected to sign or Initial amendments which were required by the office before the application was entered on the file. The amendment must in fact be signed at the time of the hearing. In my view, therefore, reading the whole of Rule 17 together, although no doubt the office can and should require the application to be in the condition required by the Rules at the time when it is presented, nevertheless it is open to the Court at any time, upto and including the hearing, to make an amendment under the terms of the Rule. In my opinion, the learned Judge as right in making the amendment under the terms of Rule 17.
Even if I had thought that he had no power to make the amendment under Rule 17, I should have said in this particulars case that he was right to allow the amendment under the general jurisdiction of the Court to allow amendments, because the application did not seek execution against a particular property which subsequently proved not to be subject of the execution, the applicant therefore being compelled to ask for leave to execute against another property after limitation had run. The application here did not specify any property; it merely referred generally to attachment of property under Rule 54, that is of immovable property. The amendment therefore only involves giving particular of that which was dealt with in generally terms by the application. I am not prepared to accept Mr. Vachha's contention that the application was a mere nullity, because it did not describe the property in detail. However, if the amendment was made under Rule 17, there is express power to make it and Sub-rule (2) makes it clear that the fact that limitation has expired is irrelevant. In my opinion, the appeal must be dismissed with coats. I express no opinion on the further question whether giving leave under Order 21, Rule 22, is a step in execution.'
14. Before leaving the point, it may be necessary to make it clear that the principle laid down in these cases, that an amendment made to cure defects in an execution application which is not in accordance with Rules 11 to 14 of Order 21, retrospectively validates the application as stated in Order 21, Rule 17 (2), is not applicable to interlocutory applications made for purposes of adding a prayer for proceeding against properties not mentioned in the execution applications which are not defective. The following observations at p. 464 in 16 mys. L. J. 461, make the point clear:
'It was also contended by Mr. Srinivasan that Sub-rule (2) of Rule 17 of Order 21 of the Code of Civil P.C. permitted amendments of execution applications and that if allowed such amendments would date back to the date of the original application itself, and that therefore the present application should be deemed to be in time. But that provision, it will be noticed, refers to certain defects in the execution petition arising from non-compliance with the requirements of Rules 11 to 14 of Order 21 of the Code. But we are not concerned with such defects in the present case. This is a case in which the decree-holder wants permission to proceed against the properties of the judgment-debtor which were not all mentioned in the original application and in these circumstances, Sub-rule (2) of Rule 17 of Order 21 of the Code of Civil P.C., can have no application.'
Fazl Ali J. in Gajanand Sha v. Dayanand Takur, A. I. R. (30) 1943 Pat. 127 (21 Pat. 838) made the distinction between the two kinds of cases clear by the following observation:
'The view which has been generally taken as to the meaning of Order 21, Rule 17 is that it is intended to deal with only formal amendments but for which the application for execution or attachment will not be regarded as complete. For example, under Rule 11, the judgment-debtor is required to state that details of the number of the suit, names of the parties, the date of the decree etc., in his application and if upon scrutiny of his application it appears that any of these details is missing in the application, the Court may give an opportunity to the decree-holder to remedy the defect. Similarly, what Order 21, Rule 13 contemplates is that the property which is sought to be attached should be described in such a way in the application for attachment as to show that the property is identifiable. If, therefore, there are found wanting in the description such details as are necessary for the proper identification of the property, the Court has full power to allow the decree-holder to remove the defect by supplying such details, Rule 17, however was never intended in my opinion to enable the decree-holder to ask the Court to delete from his application a property which is fully described and to substitute in place thereof another property with a totally different description. In my opinion, therefor,e the present case cannot be said 'to be covered by Order 21, Rule 17.'
This case deals with an attempt to substitute a new property in place of another property mentioned in the schedule of properties the attachment and sale of which were prayed for in the execution application. The argument is applicable much more strongly to cases in which an attempt is made to add another property to the list of immovable for proceeding against which alone the execution application had been filed.
15. Failure to file a schedule of immovable property along with the execution application is defect which comes within the scope of Rules 11 to 14 of Order 21, and on receipt of such an application, the Court is bound to ascertain whether the application is defective it might thereon either reject the application before it is registered or allow the defect to be remedied within a time fixed by it. It follows that if the application is not rejected, the Court has followed the only other course open to it, and that is, it has allowed the decree-holder to get the defect remedied. There is nothing to prevent this being done after the execution application is registered and even after the expiry of the period of twelve years from the date of the decree. Our answer, therefore, to point No. 1, referred to the Full Bench, is that the failure to file a schedule of immovable properties along with the execution application is a mere defect which can be cured by filing a schedule of such properties more than twelve years after the date of decree.
16. As regards the second point, it has to be stated that when a execution application is filed for proceeding against certain immovable properties, relief claimed in that execution petition can only be given and any application filed for relief in respect of other immovable properties must be regarded as a new application. When the second application is filed within the period of limitation, there is nothing wrong in giving relief in the same execution case as this would, if at all, be a formal defect. If, on the other hand, the application for proceeding against immovable properties other than those mentioned in the first execution application is filed after the period of limitation, this application has to be dismissed and relief claimed in it cannot be granted in the execution case, in which an application had been filed within time for proceeding against certain other immovable properties. In cases of this kind, Rule 17(2) of Order 21 is not applicable as the first application was not defective and the second application is one intended to remedy the defect.
17. Our opinion, therefore, on the second point referred to the Full Bench is that an application of a decree-holder filed twelve years after the decree, against certain immovable property not mentioned in the original application containing a schedule of immovable properties, cannot be considered as a continuation of the pending original application, but that it has to be regarded as a fresh application. The records in S.A. No. 12 and 341 of 48-49 will be returned to the Division Benches with these answers, for the cases being disposed of in the light of our opinion.
18. Reference answered.