1. The facts which have given rise to this appeal are briefly as follows: The decree-holders, who are the respondents in this appeal, brought a suit of mortgage and obtained a decree. In execution of the decree the mortgaged property was sold and on 29th March, 1921, an application was made to the Court under Order XXXIV, Rule 6, Schedule 1 of the Civil Procedure Code, for the passing of a money-decree against the mortgagors. The judgment-debtors, who are the appellants in this Court, filed objections to the granting of the application, once on 30th April, 1921, and then on 7th May, 1921. In fact, the objections were that the application was barred by time and the decree-holder had prepared the account without giving credit for all the sums realised and without calculating the interest by the proper method. The lower Court decided the question of limitation alone and held that the application was time-barred. An appeal was preferred to this Court, and by a judgment, which will be found printed at page 37 of A.L.J., Vol. 21, Raj Narain Mal v. Santi Lal 70 Ind. Cas. 85 : 21 A.L.J. 37; (1923) A.I.R. (A.) 203 this Court allowed the appeal, holding, that the application was within time. Thereafter the judgment-debtors, who were dissatisfied with the judgment of this Court, presented an application for permission to appeal to His Majesty in Council. That application was granted and the order of this Court will be found printed at page 686 of the same volume of A.L.J., Santi Lal v. Raj Narain 79 Ind. Cas. 87 : 21 A.L.J. 686 : 9 O. & A.L.R. 832 : 45 A. 741; (1921) A.I.R. (A) 119. When the case went back to the Court below to find out what was the amount really due to the decree-holders and thereupon to frame a decree, the judgment-debtors came forward with a fresh objection on 20th March, 1923. The objection taken was that the application for a personal decree was not properly signed. It appears that it was not signed by any of the plaintiffs and the legal practitioner, Babu Kanhaiya Lal, who signed it, held no vakalatnama on behalf of the plaintiffs. The Court below held that this objection could not be heard as it was barred on the principle of res-judicata. The judgment-debtors have come to this Court again and the contention is that there can be no res judicata by implication in an execution proceeding.
2. On behalf of the decree-holders the order of the Court below has been sought to be supported both on the ground on which it proceeded in the Court below and also on the ground that the application, dated 29th March, 1921, was not required by law to be signed and at any rate the objection to this effect had been waived.
3. The first question to be decided is whether the plea of res judicata is sound. We think it is not. The application, which was pending in the Court below, was the same application with respect to which the objection of 1921 had been taken. When it went back before the Court again, to dispose of the remaining objections of the judgment-debtors, fresh objections were taken. To argue by way of analogy, when suit is pending (the application is in the course of a suit), a defendant, with the permission of the Court, may be allowed to take a fresh defence to the suit. The matter, however, would be entirely in the discretion of a Court, viz., whether to allow an amendment to the written statement or not. The law on the point is laid down in Order VI, 6 Rule 17 of the Code of Civil Procedure and the matter is entirely within the discretion of the Court. The object of an amendment is to determine the real question in controversy between the parties. We, therefore, are of opinion that the plea of res judicata, taken on behalf of the decree-holders, plaintiffs cannot be sustained.
4. Coming, however, to the question now raised in this appeal, we are of opinion that the application of the decree-holders should not be thrown out on the ground taken by the judgment-debtors.
5. The application was, as already stated, one under Order XXXIII, XXXIV, Rule 6 of the Code of Civil Procedure. There is nothing in that rule which requires that an application to the Court should be in writing, much less is there anything to show that the application should be signed by any body. All that the rule lays down is that the Court is authorised to pass a decree, where the judgment-debtor is personally bound to pay the balance. Under the circumstances, the fact, that the application was not signed by the decree-holders, will not affect the case.
6. From the facts of the case, already stated, it will be seen that it is not the case that the decree-holders repudiated the action of Babu Kanhaiya Lal, who purported to sign the application on their behalf. On the other hand they entirely adopted the application made on their behalf. They resisted the objection preferred by the judgment-debtors in the Court of first instance and filed an appeal in this Court. When the case went back they were prepared to proceed on the very application which had been filed on 29th March, 1921.
7. Assuming, however, that a written application would be necessary on behalf of the decree-holders, such application may certainly be allowed to be signed at any stage of the proceedings. Under Section 153 of the Code of Civil Procedure the Court is authorised to amend any defect or error in any proceeding in a suit. If the application is offered to be signed by the decree-holders or any body on their behalf, authorised to do so, we see no reason why the application should not be allowed to be signed by them, by way of amendment.
8. It appears that Babu Kanhaiya Lal, Vakil, who signed the application for the decree-holders, appeared at a certain stage of the execution proceedings for the judgment-debtors. His vakalatnama, on their behalf, is dated 21st June 1917. We have heard it. We find that he was engaged for a particular purpose, viz., to file an application objecting to the execution of the decree under Section 47 of the Code of Civil Procedure. That application was struck off for default of prosecution and he made another application for the restoration of it. The application was finally disposed of on 22nd December, 1917, and the purpose for which Babu Kanhaiya Lal had been engaged came to an end. There was, therefore, nothing to prevent Babu Kanhaiya Lal from being engaged on behalf of the decree-holders for making the application under Order XXXIV, Rule 6 of the Code of Civil Procedure.
9. We are satisfied that, although the decision of the Court below on the question of res judicata was not right, the Court was fully justified in brushing aside the objection of the judgment-debtors.
10. We dismiss the appeal with costs, which will include Counsel's fees in this Court on the higher scale. We hope the matter will now be expedited.