1. This is a judgment-debtor's appeal arising out of an execution proceeding. A curious point of law arises in this case owing to a mistake made by the Court of first instance when passing the decree.
2. The suit was instituted against three persons whose names were mentioned in the plaint in a certain order. The learned Munsif, when writing his judgment, altered the serial numbers of the defendants, and although apparently he intended to pass a decree against the appellant Debi Bakhsh, the decree was passed against Bhawani Shanker on the 16th of January 1916, The plaintiff, armed with this decree against Bhawani Shanker, proceeded to execute it. Applications for execution were filed against Bhawani Shanker on the 23rd of July 1919, on the 13th of July 1922 and on the 26th of February 1923. With regard this last application it may be mentioned that originally the names of all the three defendants ware included in to this application; but when objections were raised by persons whose names were not to be found in the decree the decree-holder's vakil naturally exempted them and asked for execution against Bhawani Shanker alone. Bhawani Shanker then filed an application for amendment of the decree on the ground that it was not the intention of the judgment to decree the claim against him. Owing to a second blunder, notice of this application was not sent to Debi Bakhsh, the appellant, but only to the plaintiff decree-holder. The Court being satisfied that Bhawani Shanker had not been made liable, amended the decree and substituted the name of Debi Bakhsh in place of Bhawani Shanker on the 5th of January 1924, although no notice had been issued to Debi Bakhsh.
3. The decree-holder then put in an application for execution of this amended decree on the 28th of January 1924 against Debi Bakhsh. Debi Bakhsh objected to the execution. His objections were disallowed by the first Court. He appealed to the lower appellate Court and the only point urged before that Court was that the present application for execution was barred by time. His appeal, however, has been dismissed.
4. In second appeal the learned vakil for the appellant contends that inasmuch as there were no proceedings in execution against Debi Bakhsh from the date of the decree till the supposed amendment, the decree had become dead and no amount of amendment could revive it. His contention is that the present application for execution, even though it be within three years from the date of the amendment, is barred by time. His second contention is that the decree-holder having exempted him in execution department once before is now estopped from asking execution against him; and the third point, though not taken in the grounds of appeal, is that the amendment, having been made behind his back, is a nullity and not binding on him.
5. If one reads the language of Article 182(4) of the Limitation Act (No. IX of 1908), the first impression would be that an application for execution, if made within three years of the date of its amendment, is within time. That would seem to be a proper inference on its literal construction, as there are not any further qualifying words. But it does seem to have been held in several cases that if the decree was time-barred, and in that sense had become dead, its amendment would not give the decree-holder a fresh start. I may refer to the case of Anandram v. Nityananda Baruam AIR 1916 Cal 511 which was followed in the case of Rabiuddin v. Ram Kanai Sen AIR 1920 Cal 769. As it is not absolutely necessary in this case to decide this point finally, I assume this contention to be correct; that is to say, I assume that if the decree had become time barred on the date of its amendment, then the decree-holder cannot get a fresh start.
6. As regards the question of an amendment behind the back of the appellant: I must concede that it wag unfair to amend the decree without giving Debi Bakhsh an opportunity to show cause against it. But if the amendment has been wrongly made, it is still open to Debi Bakhsh to apply to the original Court which has amended the decree for a review of its order on the ground that it was passed behind his back and that it is unjust or wrong. It is not necessary for me in this appeal to express any final opinion as to whether the order for amendment was right or wrong. I have in stating the facts assumed it for the purpose of this appeal that the amendment was correct.
7. As regards the question of exemption: it is obvious that the decree-holder's vakil was bound to exempt Debi Bakhsh and Debi Sahai from the execution proceedings taken under the wrong decree. The names of these persons were not in the decree and they could not be proceeded against. That exemption, in my opinion, would not amount to an estoppel when subsequently it wag discovered that the decree was wrongly prepared and was in fact amended.
8. The main question which I have to decide is whether the present application is barred by time. This depends on the further question whether the decree was kept alive by successions made in 1919, 1912 and 1923 against Bhawani Shanker whose name had been wrongly entered in the decree and not against Debi Bakhsh, the true judgment-debtor. The learned vakil for the appellant has strongly contended before ma that execution proceedings taken against strangers can in no sense keep the decree alive and that all these applications must be deemed to have been applications not in accordance with law. He has distinguished this case from cases where execution is taken out against joint judgment-debtors. It is no doubt a fact that Bhawani Shanker's name was wrongly entered in the decree. But so long as the wrong decree stood, the only person against whom the decree-holder could proceed was Bhawani Shankar. He could not before amendment really proceed against Debi Bakhsh. The applications for execution which he filed were on the face of the wrong decree the only applications which he could have made and therefore in my opinion they must be deemed to have been made in accordance with law. The defect was not so much in the applications as in the decree sought to be executed. The applications themselves were perfectly in order. They were therefore proper applications under Article 182 of the Limitation Act. If this were not the correct law then the result would be that if by a mistake the name of a wrong judgment-debtor is substituted in a decree, and the mistake is not discovered for three years, the decree-holder would be without the remedy. I do not consider that this is the true position. The applications were proper applications so long as the decree remained unamended with the result that the decree must be deemed to have been kept alive up to 1923. The present application having been filed within three years of the last application is also within time. In this view of the matter it is not necessary for the decree-holder to fall back on Article 182(4) and calculate time from the date of the amendment, namely, the 5th of January 1924. The propriety of the order of amendment has been left open by me.
9. There is another aspect of the case according to which also the application for execution can be held not to be time-barred. As the name of Debi Bakhsh had been omitted from the wrong decree, that decree before its amendment was incapable of execution against Debi Bakhsh. It was not possible for the decree-holder to take any steps by way of execution against him. It is only since the decree has been amended and the name of Debi Bakhsh brought on the record as a judgment-debtor that a right to apply to execute the decree against him has accrued. It seems to me that under these circumstances the decree-holder is entitled to execute it against him. This view is supported to some extent by the observations in the case of Muhammad Suleman Khan v. Muhammad Yar Khan (1894)17 All 39, that the corresponding article in the old Limitation Act must be deemed to necessarily contemplate the existence of a decree capable of being executed at the date of the decree and that article would not apply if a wrong decree incapable of execution were passed.
10. The appeal is accordingly dismissed. As however a difficult point of law arose owing to the negligence of the plaintiff in not seeing that the correct decree had been prepared, I direct that the parties should bear their own costs of this appeal.