R.D. Gattani, J.
1. This execution second appeal has been filed by one of the surety judgment-debtor and arises out of the following circumstances:--
2. On 6-1-1946 an award in connection with a mortgage was given by an Arbitrator against respondent No. 2 Trijugi Narain, principal debtor and the appellant Shri Rameshwar Lal and respondent No. 3 Suraj Narain as sureties in favour of respondent No. 1 the Commercial Cooperative Bank Ltd., Ajmer (now in liquidation). The award was for Rs. 7,769/7/-, which included the principal amount of Rs. 7,633/14/-. The rate of the interest was 5 1/4 per cent per annum. The amount was to be realised by the sale of the immovable properties mentioned in the mortgage-deed and other properties of the main judgment-debtor and if the whole amount was not recovered from the properties of the judgment-debtor, the residue was to be recovered from the moveable and immovable properties of the two sureties.
3. Eventually the decree-holder filed the fourth execution application for the recovery of Rs. 9,096/8/- on 27-3-1957. In Column No. 10 of the application it was prayed that the amount may be realised by,--
(a) attachment of the movable properties of the judgment-debtors as pointed out by Administrator or his agent on the spot;
(b) attachment and sale of the immovable properties specified in Schedule 'A' annexed and the sale-proceeds be paid to the decree-holder; and
(c) by arrest and detention of the judgment-debtors Nos. 1 and 3 i.e. Trijugi Narain and Suraj Narain.
4. It might be stated here that though this column refers to the immovable properties specified in Schedule 'A', the decree-debtor did not file any such Schedule, In other words along with the application, the decree-holder did not file any list of the immovable properties. Proceedings in the executing Court (Civil Judge, Aimer) went on for some time, but with no fruitful result. On 14-12-1963 the executing Court ordered the attachment of the immovable property of Rameshwar Lal and Suraj Narain under Order 21. Rule 54 Civil Procedure Code upon the payment of process-fee and the filing of the list of the property. The case was to come on 22-2-1964, but the former order was not complied with. The lists were filed on 24-10-1964.
5. Three lists covering six houses belonging to Rameshwar Lal and filed by the decree-holder are on record, but it cannot be said whether all the three lists were filed on the same day, as no date is given on either of the lists. However, the record shows that three houses mentioned as 8/634, 8/635 and 8/449 were attached. After again a lull for some time in the proceedings on 21-1-1967 Rameshwar Lal appellant filed objections regarding the maintainability of the execution proceedings. The executing Court while rejecting other objections, upheld one of them regarding limitation. It held that the application for attachment and sale of the property of Rameshwar Lal having been made after expiry of twelve years from the date of the award, was not maintainable as time barred and the decree-holder was not entitled to get his application for execution amended after twelve years of the award. Thus the attachment of the property of the appellant was, therefore, set aside on 23-8-1969.
6. The decree-holder preferred an appeal to the Court of District Judge, which being accepted on 19-12-1970 has led to the filing of this second appeal.
7. It has been urged by the learned counsel for the appellant Rameshwar Lal that though judicial opinion of India in the matter involved in this appeal is divided, there is a direct authority of our own High Court, Ex. Second Appeal No. 11 of 1964, Mohan Lal v. Gulab Chand, D/- 14-3-1967 (Raj), and this Court will, there-fore, may like to follow that authority.
8. On the other hand it was contended by the learned counsel for the decree-holder that in the present case the question of amendment of the execution application under Order 21, Rule 17 Civil Procedure Code is involved and not the case of a fresh application; that the authority of this Court relied upon by the appellant decided the question of a fresh application, which was time barred and that the question of Order 21, Rule 17 (1) and (2) was not gone into in that case. It was further urged that the bar referred to in Section 48 C. Procedure Code is in respect of a fresh application filed or treated to have been filed beyond 12 years of the date of the decree, otherwise so far as question of amending this execution application is concerned, it can be allowed at any time. Regarding the authorities of other High Courts it was argued by the learned counsel for the appellant that in cases which required only the amendment of the application, the authorities are rather unanimous that it can be allowed even after the period of 12 years and in the cases which are taken as holding the other view it was held that fresh application after 12 years from the date of decree was barred by limitation under Section 48 C. Procedure Code, to which he also agreed.
9. The relevant provision of Section 48 C. Procedure Code read as under:--
'48. Execution barred In certain cases:-- (1) Where an application to execute a decree not being a decree granting an injunction has been made, no order for the execution of the same decree shall be made upon any fresh application presented after the expiration of twelve years from.-
(a) the date of the decree sought to be executed, or,
(b) where the decree or any subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods, the date of the default in making the payment or delivery in respect of which the applicant seeks to execute the decree.'
(As the award is of 1946 and the execution application was filed in 1957, this section is relevant, even though repealed in 1963).
10. Apparently it speaks of bar of fresh application. It is, therefore, to be seen whether the principle involved in this section can be applied to the facts of the present case.
11. The award was made in 1946. The present application, out of which this appeal has arisen, was filed in 1957. Before that three applications one after another had been filed within time. The filing of this fourth application, therefore, cannot be said to be beyond limitation. What has been contended by the learned counsel for the appellant is that the decree-holder did not attach any schedule of properties of this judgment-debtor along with this application presented on 27-3-1957. For the first time the decree-holder filed the lists of the immovable properties of this judgment-debtor on 24-10-1964 i. e. much after the period of 12 years from the date of the decree. As such it is urged that this filing of fresh list will be taken as fresh application filed beyond limitation.
12. It has been stated above that in column No. 10 of this application 3 methods of the mode of relief were shown and though there is a mention of Schedule 'A', in fact no such schedule of any property was actually filed. The duty of the Court to which an execution application under Order 21, Rule 17 C, Procedure Code is presented is given In Order 21. Rule 17 C. Procedure Code, which runs as follows:--
'Procedure on receiving application for execution of decree:-- (1) On receiving an application for the execution of a decree as provided by Rule 11, Sub-rule (2), the Court shall ascertain whether such of the requirements of Rules 11 to 14 as may be applicable to the case have been complied with; and, if they have not been complied with, the Court may reject the application, or may allow the defect to be remedied then and there or within a time to be fixed by it.
(2) Where an application is amended under the provisions of Sub-rule (1), It shall be deemed to have been an application in accordance with law and presented on the date when it was first presented.
(3) Every amendment made under this rule shall be signed or initialled by the Judge.
(4) When the application is admitted, the Court shall enter in the proper register a note of the application and the date on which it was made, and shall, subject to the provisions hereinafter contained, order execution of the decree according to the nature of the application: Provided that, in the case of a decree for the payment of money, the value of the property attached shall, as nearly as may be, correspond with the amount due under the decree.'
13. According to this Rule it is the duty of the Court to ascertain whether requirements of Rules 11 to 14 of that Order, as may be applicable, have been complied with or not In case they are not complied with, the application is to be treated as defective. In that case the Court has two options; either to reject it outright or to get the defects removed then and there or within a time specified by the Court.
14. This application when presented on 27-3-1957 was defective inasmuch as it did not comply with the provisions of Rule 13 of Order 21 C. Procedure Code as particulars of the immovable properties sought to be attached were not at all given. The executing Court could have, therefore, rejected it outright. In case it did not do so, it was its duty to see that that defect was removed as envisaged in Rule 17. Unfortunately the executing Court did not take any steps in that direction as well and as there were other modes of relief also mentioned in Column No. 10 of the application, it registered the case and started further proceedings, and when proceedings under Order 21, Rule 30 C. Procedure Code against the main judgment-debtor Shri Trijugi Narain proved to be unsuccessful, then for the first time on 24-10-1964 lists of the properties of the appellant were filed and the properties were, thereafter, attached. It is, therefore, to be seen whether the filing of the list of the immovable properties can be treated as fresh application. If the answer is in affirmative, then this appeal may succeed. It is, however, to be borne in mind that prior to the filing of these lists on 24-10-1964, no list of any immovable properties of any of the judgment-debtors was filed, nor any immovable property of any of the judgment-debtor was got attached.
15. There are a host of authorities, which have laid down the principle that in such circumstances the decree-holder by filing the list of immovable property has simply removed the defect and the executing Court was within its bound to get the application amended by admitting those list, even though they are filed beyond 12 years of the date of decree.
16. In Divakaran Nambudiripad v. K.M. Brahmadathan Nambudiripad, AIR 1945 Mad 241 the decree-holder applied within 12 years of the decree for proceeding against movable and immovable property of the judgment-debtor. However, the application was defective inasmuch as particulars of immovable property were not given. It was held that amendment curing that defect could be allowed even after 12 years from the date of decree. Similarly in a F. B. authority of Mysore High Court reported in Marulasiddappa v. Lakshmipathi, AIR 1950 Mys 64 (FB) it was held that failure to file schedule of immovable properties along with the execution application is a mere defect, which can be cured by filing a schedule of such properties more than 12 years after the date of decree as it is a defect which comes within the scope of Rules 11 to 14 of Order 21, Civil Procedure Code and can be allowed to be remedied under Rule 17 of that Order.
17. In a Calcutta case properties mentioned in the list could not be legally attached, even then the Court allowed filing of another list, vide Shekendarali Meah v. Abdul Gafur, AIR 1942 Cal 306.
18. Subsequent application giving list of properties filed beyond 12 years was not treated as fresh application, but one in continuation of original application vide Shiva Shankar Das v. Mufti Syed Yusuf Hasan, AIR 1934 All 481 (FB). Similar view has been taken in Rameswar Sharma v. Madan Lal Agarwalla, AIR 1965 Assam & Naga 96, Hanamappa Shiddappa v. Ningappa Rangappa, AIR 1948 Bom 116, Venkatappa v. Lakshmi Kant Rao, AIR 1956 Hyd 7 (FB), Ah-mad Ali v. Mt. Fatima Sultan, AIR 1934 Pesh 40 and Phool Chand v. Ramchandra, AIR 1956 Madh Pra 158.
19. A review of these authorities would reveal that where the list of property was not filed along with the execution application, when the Court also did not do its duty under Order 21, Rule 17 Civil Procedure Code mentioned above, the Courts have accepted the list later on in a proceeding already going on, even after 12 years of the date of decree. The filing of such list has not been taken as fresh application, but as amendment in the application for the simple reason that there was absence of the list or any valid list altogether and it was treated as removing the defect in connection with Order 21, Rule 13 C. P. C.
20. It will be now proper to go through the authorities cited on behalf of the learned counsel for the appellant.
21. Leaving aside the case of our own High Court, which shall be gone into presently, the first on the list comes the case reported in Venkata Lingama Nayanim Bahadur Varu v. Venkata Narasimha Rayanim Bahadur Varu, AIR 1947 Mad 216 in which it was held that the decree-holder cannot be allowed to amend a previous execution petition by including fresh properties more than 12 years after the date of decree. In this case the allowance for maintenance was made a charge on about 400 villages and the decree directed a sale of those villages in realisation of the sum decreed. The decree-holder on 15-1-1930 applied for the satisfaction of the decree by sale of 21 villages only specified in the schedule attached to the execution application. By September, 1939 a sum of more than Rs. 90,000/- was realised by the sale of these 21 villages and a sum of Rs. 9,630/- still remained due. On 1-11-1939 the decree-holder made an application in the previous proceeding and prayed for the recovery of balance by sale of 7 villages specified in the fresh application. All the reliefs claimed by the decree-holder in the previous application had been granted to the decree-holder before the application dated 1-11-1939 was filed. It was in these circumstances that the application dated 1-11-1939 was treated as fresh application and was disallowed as it was filed beyond limitation, even though the previous application had not been formally terminated. This was not a case where the decree-holder did not comply at all with the provisions of Order 21, Rule 13 Civil Procedure Code. But he wanted to get certain more properties added in the list already filed and that prayer was disallowed as it was barred by limitation.
22. In Kaibala Padhan v. Sanyasi Sasamala, AIR 1957 Orissa 5 the same view was taken. This was also a case of addition of more properties after the period of 12 years. For the same reason the case reported in Dineshwar Prasad Singh v. Deoniti Prasad Singh, AIR 1959 Pat 199 is also of no avail to the appellant. Similarly in Narayanan Damodaran Namboodiri v. Kuriathu Yohannan, AIR 1957 Trav. Co. 109 (FB) it was held that application giving fresh list of properties after limitation is barred under Section 48 C. P. C.
23. In Ujagar Singh v. Kahan Singh, AIR 1955 Punj 247 the decree-holder sought to get the property attached after limitation and that property was not in existence when the original execution application was filed. Hence this was not a case of amendment for curing any defect, but of adding a fresh list of the property.
24. In Kumar Taranand Sinha v. Thakur Chandra Bhusan Pd. Singh, AIR 1968 Pat 458 amendment was sought by deleting certain property originally mentioned therein and substituting another property and that was for the same reason not allowed beyond limitation.
25. In Asgar Ali v. Trilokhya Nath Ghose, (1890) ILR 17 Cal 631 (FB) it was no doubt held that an execution application once admitted and entered on register, the powers of the Court under Order 21. Rule 17 C. P. C. are at an end and no leave to amend can afterwards be granted. Suffice it to say that this view was not followed in the latter case by that Court even.
26. Now I come to the authority of our own High Court, which is an unreported case Ex. Second Appeal No. 11 of 1964 (Raj). The facts of this case have been held to be similar to those of AIR 1947 Mad 216. In this case second application for executing a decree dated 8-5-1945 was filed on 4-8-1952. Along with the execution application a copy of the decree was attached as well as a list of property sought to be sold. In this list only one house was shown. That house was already being sold in another execution No. 806 of 1948 filed by another decree-holder against the same judgment-debtor. But that property could not be sold because the judgment-debtor had filed objections. On 13-5-1953 the other decree-holder filed a list of 5 properties which had been mortgaged and prayed for sale of one of them only. On 18-12-1953 an order was passed in the execution case filed by Gulab Chand and others against Mohan Lal that this execution case be kept pending as the property in the other execution case No. 865 of 1948 had not been sold and then the prosecution in the execution application remained stayed uptill 10-2-1959 when the Court did not think fit to wait any more and reopened the case. Meanwhile that property in the other execution case No. 805 of 1948 was sold on 20-1-1957 for Rupees 9,000/-, but that amount was not sufficient to discharge that decree even. So another property was sold on 20-8-1961 in case No. 806 of 1948, yet there was no surplus left. On 6-9-1961 Gulab Chand and others filed an application for selling the remaining three properties, a list of which was filed by them. The judgment-debtor objected to the sale of those properties inter alia on the ground that it was an application for the sale of fresh properties, which must be taken as fresh execution application and that was barred by limitation under Section 49 C. P. C. That objection was upheld by the executing Court, but was overruled in appeal by the District Judge. The judgment-debtor came to the High Court in second appeal and following the case reported in, AIR 1947 Mad 216, the appeal was accepted.
27. Apparently the facts of the instant case are different from those of Ex. S. A. No. 11 of 1964, D/-14-3-1967 (Raj). In the instant case no list of immovable property was even filed before 24-10-1964 and as such the filling of the list on that day even though beyond the period of 12 years from the date of decree, can be taken as amendment only in the application as it remedied the defect in the execution application under Order 21, Rule 17 C. P. C. This cannot, be treated as a case of fresh properties and, therefore a case of fresh application. In the other case list of properties was already filed and a fresh list was filed and sought to be attached after 12 years. This was apparently a case of fresh application, which could not be allowed beyond the period of 12 years from the date of decree. This authority is also, therefore, of no help to the appellant.
28. A review of the authorities discussed above shows that where in an execution application Rules 11 to 14 of Order 21 C. P. C. as may be applicable are not complied with, the executing Court can get the defect remedied even after the period of 12 years from the date of decree, provided the execution application is pending. This will be treated as amending the original application itself. If, therefore, an execution application prays for the attachment and sale of immovable property, but at the same time no list of the immovable property is given, it is non-compliance of Order 21, Rule 19 C. P. C. and under Order 21, Rule 17 C. P. C. the executing Court is empowered to get the defect removed at any time, even beyond the limitation of 12 years' period, if the execution application is pending. But where there is no such defect at the initial stage, but later on some more property is sought to be added to the former list with a view that fresh property may be got attached and sold, then this will be treated as a fresh application and will not be allowed, if filed beyond the period of 12 years from the date of decree. The case in hand falls in the first category and the allowance by the executing Court of the filing of the list of the immovable properties of judgment-debtor Biseshwar Lal will be treated as allowing the amendment to the execution application as required under Order 21 Rule 17 C. P. C.
29. This appeal, therefore, fails and the same is dismissed with costs to the decree-holder. The executing Court will now further move in the matter expeditiously in accordance with law.