1. The application for execution was certainly defective, the error being not merely one of form. So far as respondent's claim to one-fourth, of the future profits of the zamindari was concerned, the decree in Original Suit No. 16 of 1887 was only declaratory and therefore incapable of execution, except for the mesne profits for fasli 1295. The decree that was capable of execution, as regards the mesne profits for other faslis claimed in the proceedings the subject of this appeal, was the compromise in the Suit of 1809 which has been treated as a decree from its date. This, therefore, was the decree which should have been mentioned in the application as the decree sought to be executed as regards the faslis subsequent to 1295. The substantial question is whether, in the peculiar circumstances of this case, the amendment ought to have been allowed.
2. We cannot agree with the contention of appellant's pleader that Section 2451 of the Civil Procedure Code is a bar to the amendment. That section is, in our opinion, analogous to the provisions of Section 53, which directs the Court to return plaints before filing for amendment in certain particulars. It does not, therefore, take away the power of the Court under Section 647,2 by analogy to Section 533 to amend the application for execution at any time before disposal.
3. The next contention is that the amendment ought not to be allowed, because at the date it was applied for the right to profits for some of the faslis--the subject of the original application--was barred. No doubt the ordinary rule is that an amendment should be allowed only if it can be without prejudice to the rights of the opposite parties as existing at the time of the application for amendment. But this principle is to be applied with reference to the special circumstances of each case. See Weldon v. Neal L.R. 19 Q.B.D. 395 In the present case we are of opinion that there are peculiar circumstances which take it out of the ordinary rule. The object of the application was perfectly clear, although there was an error in the reference to the decree, an error not unnatural, considering the complicated nature of the previous proceedings. We also observe that even execution for Fasli 1295 to which respondent was clearly entitled on his application as it stood, was not granted by the Subordinate Judge. Four objection petitions were presented by appellants, and it was not until the last of them was presented, nearly a year after the application for execution was first made, that the present objection was taken. We are of opinion that the general principle laid down by the Privy Council in Bissessur Lall Sakoo v. Maharaja Luchmessur Singh L.R. 6 IndAp 233 should be followed unless its application is precluded by express provisions of the Legislature. Looking, therefore, at the substance of the application and the prior proceedings which are of a complicated character, we think that the decision of the District Judge was right, and we dismiss this appeal, but under the circumstances each party will bear his own costs.
1. [Section 245: The Court, on receiving an application for the execution of a decree, shall
ascertain whether such of the requirements of Sections 235,
Procedure on receiving 236, 237 and 288 as may be applicable to the case have been
application for execution complied with, and if they have not been complied with, the
of decree. Court may reject the application, or may allow it to be
amended then and there, or within a time fixed by the Court. If
the application be not so amended, it shall be rejected.
Every amendment made under this section shall be attested by the signature of the Judge.
When the application is admitted, the Court shall enter in the
Procedure on admitting register of the suit a note of the application and the date on which
application. it was made, and shall order execution of the deeroe according
to the nature of the application.
Provided that, in the oase of a decree for money, the value of the property attached shall,
nearly as may be, correspond with the amount for which the decree has been made.]
2. [Section 647:
The procedure herein prescribed shall be followed, as far as
Miscellaneous proceed- it can be made applicable, in all proceedings in any Court of
civil jurisdiction other than suits and appeals.
The High Court may from time to time make rules to provide for the admission,
in such proceedings, of affidavits as evidence of the matters to
Admission of affidavits which such affidavits respectively relate; and such rules, on
as evidence. being published in the local Official Gazette, shall have the force
3. [Section 53: The plaint may, at the discretion of the Court
When plaint may be and at or before the first hearing, bo rejected, returned for
rejected, returned for amendment within a time to be fixed by the Court, or amended
amendment, or amended. then and there, upon such terms as to the payment of costs
occasioned by the amendment as the Court thinks fit,
(a) if it does not state correctly and without prolixity the several particulars herein-
before required to be specified therein; or
(b) if it contains any particulars other than those ao required; or
(c) if it is not signed and verified as hereinbefore required; or
(d) if it does not disclose a cause of action; or
(e) if it is not framed in accordance with Section 42; or
(f) if it is wrongly framed by reason of non-joinder or misjoinder of parties, or because
the plaintiff has joined causes of action which ought not to be joined in the same
Provided that a plaint cannot be altered so as to convert a suit
Proviso. of one character into a suit of another and inconsistent
When a plaint is amended, the amendment shall be attested
Attestation of amendment by the signature of the Judge.]