1. This is a decree-holder's appeal against a judgment of Khosla, J., dated 7-8-1953, reversing the order passed by the executing Court and thus dismissing the application for execution filed by the decree-holder.
2. Ujagar Singh obtained a decree against Kahan Singh and others for a sum of Rs. 5,250/-on 15-2-1935. In execution of the decree the decree-holder obtained mustardi of all the lands belonging to the judgment-debtors to begin from 18-6-1938 for a sum of Rs. 1,440/-.
3. Several applications were made in the intermediate period but nothing more seems to have been realized. On 11-2-1947 the decree-holder made an application for execution in accordance with Order 21, Rule 11, Civil P. C. In giving the mode of execution the decree-holder in column No. 10 of the application stated 'by means of attachment and sale of movable and immovable property'. Attached to this application is a list of movable property which the decree-holder wanted to proceed against and this included 200 sheep, 60 goats, 1 jhoti and a camel.
The execution proceedings went on but nothing could be realized and the executing Court then dismissed the application but on appeal coming to this Court the termination of the proceedings by the executing Court was set aside and the executing Court was directed to proceed in accordance with law.
4. On 17-2-1951 the Court asked a statement of accounts to be put in and the property from which the decree-holder wanted the decretal amount to be realized also to be indicated. On 3-3-1951 is another order of the executing Court in which the decree-holder was directed to file a goshwara. On J5-3-1951 the decree-holder made another application in which he gave the account according to which Rs. 4,328/2/- was due to the decree-holder from the judgment-debtor.
He also stated that he wanted the execution to proceed against 200 sheep and goats and in para B he stated as under:
'Land measuring 20 bighas kham has been, inherited by the judgment-debtors. On the death of....... The Judgment-debtors have now got the said property by inheritance.' and he then prayed that execution be proceeded against this property.
5. The question which was raised before Khosla, J., was whether this application amounted to a fresh application or was a continuation of the previous application and, therefore whether it was barred by Section 48(2) or not. The facts which I have given above show that on the date when the last application, which was within time, was made, that is, on 11-2-1947, it was a general application that execution be levied against movable and immovable property but in the list given movable property was indicated.
The application of 8-3-1951 shows that it was round about that time that the judgment-debtors inherited the property and, therefore, it was on the 8th of March that the decree-holder indicated that he wanted to proceed against that property also. Khosla, J., has held that this application is a new application and is, therefore, barred by Section 48(2), Civil P. C.
6. The decree-holder submits that the application is not a new application but is a mere amplification or at the most an amendment of the application which was made on 11-2-1947.
7. In order to determine this it is necessary to refer to the relevant provisions of the Code of Civil Procedure. Order 21, Rule 11, deals with application which have to be made for the purpose of execution. In Sub-rule (ii) of Clause (j) of Rule 11 the mode in which the assistance of the Court is required is laid down and Sub-rule (ii) is as under:
'By the attachment and sale, or by the salewithout attachment, of any property'.
Rule 13 requires that in the application the decree-holder must give the description of the property sufficient to identify the same includingboundaries or numbers, as the case may be. Rule17 (1) is strongly relied upon by counsel for theappellant and that rule as applicable to this HighCourt is at page 1620 of Mulla's Civil ProcedureCode, Volume II. It is submitted that it is imperative on the Court, if an application does notgive the particulars, to get the particulars required under Rules 11 to 14 if that has not beencomplied with, the Court shall fix a time withinwhich the defect is to be remedied, and if it isnot remedied, the Court may dismiss the application.
Counsel submits that what has happened in the present case is that the application of 11-2-1947 was really amended in accordance with the rules of this Court. But in the present case, the application of 8-3-1951 shows that at the time when it was made, the judgment-debtors did not possess the property against which the decree-holder now wishes to proceed.
The application makes it quite clear by the use of the word 'Ab' (now) that the property came into possession of the judgment-debtors roundabout the time when the application was made and, therefore, it cannot be said that at the time when the decree-holder made the application dated 11-2-1947, stating that he wanted to proceed against the immovable property, the present property was in contemplation.
8. It has been held in 'Venkata Lingama Nayanim Bahadur v. Rajagopala Venkata Narsimha Rayanim Bahadur, AIR 1947 Mud 216 (A), that although the Code of Civil Procedure speaks of an application for execution, it is not contemplated that the application should be in general terms or kept pending till the decretal amount is fully realized.
In that case, it was also held that every application requiring the Court to proceed against a particular property is a substantive application for execution, and an application fur attachment and sale of new property which was included in the decree but not in the previous execution application which was in respect of another property is a fresh application for execution and cannot be treated as one for amending or continuing the prior application, although the prayer in the later application may be worded in that manner.
Where no question of limitation arises, it is of course, immaterial how the subsequent application is regarded, but when it is made beyond the period of limitation, its real character has to be examined. In this judgment, Patanjali Sastri and Bell. JJ. held that a decree-holder could not be allowed to amend a previous execution application by including fresh properties more than twelve years alter the date of the decree, and that is what has happened in the present case.
It cannot be said that the present property which is sought to be proceeded against was even within the contemplation of the decree-holder because the property was not in possession of the judgment-debtors and, therefore, had not comeinto existence qua the judgment-debtors. This is the view which has been taken by most of the High Courts in India. In 'Ram Rattan v. Datar Kaur, AIR 1928 Lah 808 (B), Tek Chand, J. held that an application for inclusion of another piece -of property is a fresh application and not a continuation of the old one.
In Hayatunnessa v. Achia Khatun,' AIR 1924 Cal 131 (C), the same view was taken and the Allahabad High Court in 'Bandhu Singh v. Kayastha Trading Bank Ltd.,' AIR 1931 All 134 (D), held that if a piece of property Was not included in an execution application and is sought to be included after the period of limitation has expired, it is a fresh application and cannot be treated as an amendment or amplification of the old application.
The same rule was laid down by the Nagpur High Court in 'Deorao Suryabhanji v. Ramchandra Amrutlal', AIR 1948 Nag 272 (E); and in 'Gajanand Sha v. Dayanand Takur,' AIR 1943 Pat 127 (F), it was held that if a misdescription is corrected, it may be a continuation of the old application but an addition of item of property is a fresh application and is hit by Section 48(2), Civil P. C.
9. Counsel, however, relies on an earlier judgment of the Madras High Court in 'Nambudiripad v. Brahmadathan Nambudiripad,' AIR 1945 Mad 241 (G), where a Division Bench of that High Court held that there is no option or discretion in the Court with regard to ascertaining whether the requirements of Rules 11 to 14 have been complied with. Where the effect of an execution application is that the immovable properties are also sought to be proceeded against but the application is defective, the Court is bound to return the application for amendment to the petitioner after giving suitable time to enable the defects to be remedied and if such action is taken, the case is one of amendment and not of addition.
The law laid down in that case must be confined to the facts of that particular case. The application in that case by the decree-holder was made on 10-11-1943 seeking to attach the properties of the defendants in which the words 'movable and immovable properties'' were mentioned and to this were added the following words:
'The schedule of the remaining properties will be filed after enquiry and ascertainment hereafter. Affidavit also will be filed hereafter.' On 24-1-1944 the decree-holder made an application for amendment adding an item of immovable property in the schedule. By the 4th of January the period of limitation had expired and it was argued in these circumstances that the addition of the immovable property was a fresh application and, therefore, barred under Section 48. In those circumstances, the learned Judges relying on a judgment of a learned Single Judge held that the attention of the Court having been drawn to the defective nature of the application and it having allowed the defect to be remedied by means of amendment, the case was not hit by Section 48.
Be that as it may, the decision in that case must be confined to the facts of the case which was before the High Court which is quite different from the present case. In the case which Is now before us, the decree-holder did not even know that any immovable property existed, and it was not till 8-3-1951 or roundabout that time that the property came into possession of the present judgment-debtors and, therefore it cannot be said that this is a case of amendment. I am of the opinion that this is a case of addition and is hit by Section 46(2) Civil P. C.
10. I, therefore, agree with the judgment of Khosla, J, and would dismiss this appeal but in the circumstances of this case I leave the parties to bear their own costs in this Court.
11. I agree.