Nasirullah Beg, J.
1. This is a decree-holders appeal. It arises out of execution proceedings. An application for execution was given by the decree-holder on 24-11-1951. This was the fourth application for execution. An objection to the execution was taken by the judgment-debtors on the ground that this application was barred by limitation as a previous application dated the 20th November, 1945 for execution of the same decree was not an application in accordance with law.
If the application dated 20-11-1945, is considered to be an application not in accordance with law, then it is conceded on behalf of the appellant that the present application would be barred by limitation. The contention of the decree-holder-appellant, however, is that the execution application of 20-11-1945, was an application in accordance with law.
There is no doubt that the decree-holder did give an application for execution. This application for execution was good in every respect except that there was a trivial mistake in the calculation of the interest. Learned counsel for the appellant states that the interest mentioned in this application was, in fact, less than that awarded to him under the decree.
This wrong amount was mentioned in column 7 of the application which requires that the amount of interest due under the decree should be mentioned therein. There are a large number of cases in support of the proposition that a mere mistake of this kind should not be considered to be a material mistake.
2. In Jamilunnisa Bibi v. Mathura Prasad AIR 1921 All 208 (2), it was held that
'A mere mistake in calculating interest or even deliberately calculating more interest than was due, does not make an application for execution one not in accordance with law. If more interest than was due is charged it may be considered as a mere surplusage and be struck out.'
To the same effect is the law laid down in Kishun Dutt v. Cheddi AIR 1931 Oudh 312.
3. In Pitambar Jana v. Damodar Gachait AIR 1926 Cal 1077, a Bench of the Calcutta High Court held that only such defects in the execution application should be held to make the application one not in accordance with law as make it impossible for the court to proceed with the execution. It cannot be said that a mere miscalculation of interest in column 7 of the application in question would be an illegality of this type.
For the above reasons, I have no doubt in my mind that the defect in the application of 20-11-1945 was merely of a formal nature. In other words, it was merely an irregularity and not an illegality.
4. Both the lower courts have, however, allowed the objections of the judgment-debtors, as they felt themselves bound by the law laid down in Sudeshwari Prasad Narain Singh v. Paljhan Dube : AIR1931All722 . I have gone through this case, and, on a careful perusal of it, I am of opinion that the facts of that case were distinguishable from the facts of the present case.
A perusal of the judgment of that case indicates that the defects which were found in the execution application in that case related to columns Nos. 2, 6 and 8. Column 2 relates to the name of the parties, column 6 relates to the reference of the previous execution application made for the execution of the decree, the dates of such applications and their results and column 8 relates to the amount of costs awarded.
It appears to me that the items relating to the name of the parties and that relating to the dates of the previous, applications with the results might be treated as material defects that might vitiate the application. It could very well be argued that the defects in these particulars go to the root of the matter, and might be considered to have the effect of making the application one not in accordance with law.
In the present case, however, the defect is of a different nature. It relates only to column 7. Column 7 requires the mention of the amount of interest due under the decree. The mention of interest was made in the present case. It is stated that the amount mentioned is less by an amountof Rs. 10/- or so. It is difficult to understand asto how the mention of a lesser amount would make it impossible for the execution of the decree to be proceeded with.
If the amount was less, then the decree-holder should be taken to have given up his claim with respect to that amount. If on the other hand, the amount was excessive, the court could treat the excess amount to be surplusage. In any case, I am of opinion that a defect of this type must be considered to be a minor defect and not a defect of a major type. There is another distinction between the present case and the case in : AIR1931All722 .
It appears that in the latter case the court had dismissed the previous execution application on the ground that the mistakes being material, the application was not in accordance with law. In : AIR1931All722 , the judgment contains the following observations:
'The execution Court held that the application was not in accordance with law in view of the mistakes made in filling up the columns.'
It, therefore, appears that the court in that case had applied its mind to the matter, and after considering the nature of the mistakes committed in respect of columns Nos. 2, 6 and 8, the court had finally given its judgment to the effect that the said mistakes were material, and the court had, therefore, struck off the application on that ground.
In the present case, however, it appears that the court had dismissed the execution application of 20-11-1945 on the 3rd December 1945, for want of prosecution. The decree-holder was absent on 3-12-1945. The order of the court in the present case should, therefore, be construed to be an order of dismissal for non-appearance of the decree-holder.
At any rate, it does not appear from the contents of the order itself that the court had applied its mind to the fact that there were any defects whether material or immaterial from which the execution application suffered. In fact, the court does not appear to have applied its mind to this aspect of the matter. Under the circumstances, by no stretch of imagination could it be said that the court had in its order of dismissal adjudicated on the point that is material or crucial at this stage.
If there is no finding of the court on this point, and there is nothing in the order to indicate that the court was adjudicating on it it cannot be said that the decree-holder was bound by any previous finding of the court in this regard. I am, therefore, of opinion that : AIR1931All722 does not appear to have the effect of making the second execution application of 20-11-1945, as one not in accordance with law, nor did the final order passed in the case had the effect of adjudicating upon the point involved in the subsequent application.
5. Learned counsel for the appellant has also relied on Fulchand Hirachand v. Pal Mariam AIR 1943 Nag 296. In that case, the test laid down in an earlier Full Bench decision of the same Court was stated as follows:
'If the order (dismissing or rejecting the execution) amounts to a finding that the application was not in accordance with law, the application is in offectual to stay the running of limitation: if not, the Court must look to the application itself to see whether it is in accordance with law or not.'
I am inclined to agree with the proposition of law laid down in this case. The matter would depend therefore, on the circumstances of each particularcase. The circumstances of the present case, in my opinion, do not indicate that the executioncourt when dealing with the previous execution application had given any finding which would amount to a finding that the said execution application was not in accordance with law.
6. For the above reasons, I am of opinion that this appeal should be allowed. I, accordingly, allow this appeal, set aside the order of the court below and remand the case to the execution court for proceeding with the execution application in accordance with law. The appellant shall be entitled to his costs.