1. This is an appeal from the judgment of the District Judge of Berhampur reversing the judgment of the Munsif of Aska and dismissing the execution petition of the appellant, decree-holder on the ground that it was time-barred.
2. The decree was obtained against one Michu Patnaik who is now dead. The first execution was E, p. No. 22 of 1945 filed against the said Michu Patnaik on 8-1-45 and closed on 24-1-45. The second execution was E. P. No. 40 of 1948 filed on 21-1-48 against the said Michu Patnaik and closed on 27-1-18. The third execution (E. P. No. 30 of 1951) Was filed on 11-1-51 against the legal representatives of the said Michu Patnaik and closed on 10-4-51. The present execution (E. P. No. 242 Of 1951) was filed on 5-5-51 against the legal representatives of the judgment-debtor. It is admitted that Michu Patnaik died on 12-1-48 prior to the filing of the second execution petition (E. P. No. 40 of 1948).
3. If the second execution petition (E. P. No. 40/48) be held to be either not in accordance with law or else not amounting to a step-in-aid of execution within the 'meaning of Clause 5 of Article 182, Limitation Act it is clear that the present execution petition is time-barred. Hence, the sole question for consideration is whether an execution petition filed against the deceased judgment-debtor would save limitation under Clause 5 of Article 182.
4. There is a sharp conflict in the judicial decisions on this question and these have been summarised at page 2771 of Chitaley's Limitation Act, 3rd edition. The Madras, Calcutta, Bom-bay, Patna and Lahore High Courts seem to have taken the view that such an execution petition would be a step-in-aid and that limitation would therefore be saved. See -- 'Samia Filial v. Chockalinga Chettiar', 17 Mad 76 (A) ; -- 'Parakkat Devaswom v. Venkatachalam', AIR 1926 Mad 321 (B) ; -- 'Chinnan Chettiar v. Sivaganga Estate Manager', AIR 1949 Mad 348 (C) ; -- 'Bipinbehari Mitter v. Bibi Zohra', 35 Cal 1047 (D) ; -- 'Abdus Sattar v. Mohini Monan, AIR 1933 Cal 684 (E) ;-- 'Gopal v. Raising' AIR 1934 Bom 266 (F) ; ----Puran Mall v. Mt. Dilva', AIR 1924 Pat 333 (G) ;-- 'Sheogobind Ram v. Mst. Kishunbansl Kuer', AIR 1932 Pat 222 (H) and -- 'Maula Bakhsh v. Mohammad Ikram', AIR 1934 Lah 55 (I).
5. On the other hand, the Allahabad and Nagpur High Courts in -- 'Mt. Ram Kali v. Sir Bhadarman', AIR 1934 All 463 (J) and -- 'Gulab-singh v. Nathu', AIR 1944 Nag 145 (K), have taken a contrary view and held that execution against a dead judgment-debtor was a nullity and that the question as to whether the decree-holder filed that execution petition in good faith or not was wholly immaterial.
6. If mere preponderance of Judicial opinion be taken as a safe guide in this state of the case law it is obvious that we should follow the view of the majority of High Courts. Mr. Misra on behalf of the respondents, however, contended that the majority view was based on the earliest Madras decision 17 Mad 76 (A), where the question of bona fides of the decree-holder in filing the execution against a deceased Judgment-debtor was specially emphasised.
Mr. Misra urged that in view of the observations of the Privy Council in -- 'Khalil-ur-Rahman v. Collector of Etah', AIR 1934 PC 14 (L), any discussion about the bona fides of thedecree-holder would be quite irrelevant in considering the applicability of Article 182, Limitation Act and that consequently all the subsequent decisions based on 17 Mad 76 (A), should not be taken as a safe guide. Mr. Misra further urged that even in the latest decision of the Madras High Court in AIR 1949 Mad 348 (C), Patanjali Sastri J. (as he then was) noticed the conflicting view given in the Nagpur decision AIR 1944 Nag 145 (K), and observed.
'if the matter were res integra in this Court it would be a question for serious consideration whether the view expressed in the above case is not the sounder one.'
Mr. Misra, therefore, urged that the subsequent decisions following the earliest Madras decision were based mainly on the principle of stare declsis and this Court need not therefore follow the same in preference to the Nagpur and Allahabad views which are more in consonance with the language of Article 182. He also drew our attention to -- 'Kameshwar Singh v. Darogi Mander', AIR 1955 NUC (Pat) 3255 (M) ; Note 3255 (unreported case) of AIR 1955 August where a single Judge of the Patna High Court seems to have preferred the Nagpur view even though a Division Bench of the Patna High Court in AIR 1932 Pat 222 (H), had taken a contrary view.
7. The question is undoubtedly not free from difficulty. Order 21, Rule 11 (2), Civil P. C. speci-fies the various particulars which should be men-tioned in a written application for execution. Rue 17 (1) of that order authorises the Court to permit amendment of the application if there are defects in the same and when an application. is so amended Sub-rule (2) of Rule 17 says that the application should be deemed to be in accordance with law.
There are seme decisions to the effect that if the defects in the application are not material but trivial the application would still be held to be in accordance with law even though the defects have not been removed and the deeming provisions of Order 21, Rule 17 (2) do not come into play : see -- 'Abdul Kharim Saheb v. Lakshmana-swami', AIR 1928 Mad 440 (N). The question is whether the mention of the name of a dead judgment-debtor in an application under Order 21, Rule 11, Civil P. C. would be a material defect so as to make the application not one in accordance with law unless it is properly amended and aid is sought for from Order 21, Rule 17 (2).
As pointed out in AIR 1933 Cal 684 (E), there is authority for the view that a suit filed against. a dead person which is a nullity does not apply to execution proceedings. In that view therefore the execution petition mentioning the name of a deceased judgment-debtor cannot be held to be a nullity even if it be held to be not in accordance with law on account of non-compliance with the provisions of Order 21, Rules 11 and 17 (2).
The question still remains whether such a defective application would not be a step-in-aid in execution of the decree. The Nagpur and Allahabad High Courts have pointed out how the first part of Clause 5 of Article 182, Limitation Act would be rendered practically nugatory if an application for execution which is held to be not in accordance with law as laid down in Order 21, Rule 11 is yet held to be a step-in-aid of execution-within the meaning of the second part of that clause. But in South Orissa the Madras view prevailed till 1936 and throughout Orissa the Patna and Calcutta views have prevailed all along. I do not think that this is a fit case for dissenting from the majority view.
8. It is true, as pointed out in AIR 1944 Nag 145 (K), that in most of the cases where the majority view was followed a subsequent application for amendment has been made under Order 21, Rule 17 and consequently the deeming provisions of Sub-rule (2) of Rule 17 came into play. In the present case, however no petition for amendment of the execution petition under Order 21, Rule 17 by substituting the names of the legal representatives of the judgment-debtor was made in E. P. No. 40/48.
Mr. Misra therefore relied on this distinguishing feature. But I find that in AIR 1934 Lah 55 (I), it was held that an application for execution filed against a deceased judgment-debtor and subsequently withdrawn was a step-in-aid within the meaning of Article 182, Limitation. Act. Similarly. -- 'Muthammal v. Gurusami, Nayakkan', AIR 1935 Mad 158 (O) and AIR 1949 Mad 348 (C), are cases where successive applications for execution were filed against the deceased judgment-debtor and closed without there being an application for amendment under Order 21, Rule 17. Yet they were all held to be steps-ln-aid' of the execution.
9. On the whole, therefore, I am inclined to follow the majority view and to hold that E. P. No. 40/48 was a step-in-aid and that conse-quently the present execution petition is not time-barred. The appeal is allowed with costs throughout.
10. I agree.