1. As the suit is one of a small cause nature and the claim is valued at Rs. 388 and odd, no second appeal lies even in the matter of execution Vide Mavula Ammal v. Mavula Maracayar 17 M.L.J. 376.
2. We are asked to treat the appeal as a revision petition and to revise the order which directs execution to proceed against the appellant's immoveable properties on the ground that when the execution application was presented, no schedule of immoveable property belonging to the judgment-debtor was attached to it as prescribed by Order 21, Rule 13, and that by the time this omission was supplied, 12 years had expired from the date of the decree and execution had become barred under Section 48, C.P.C.
3. Order 21, Rule 17, C.P.C. declares that on receiving an application for execution, the Court shall ascertain whether the requirements of Rule 13 among others have been complied with, may either reject the application or fix a time for the defect to be remedied. Clause 2 states that if an application is so amended it shall be deemed to be an application in accordance with law and to have been presented on the date when it was first presented.
4. The Calcutta High Court in a Full Bench decision Asgar Ali v. Trilokya Nath Ghose I.L.R. 17 Cal. 631 dissenting from the opinion previously expressed by Petheram, C.J., in Macgregor v. Tarini Churn Sircar I.L.R.(1884) Cal. 124 took a very strict view of Section 245 in the Code of 1882 corresponding to Order 21 Rule 17 and although in the present Code the word 'amended' has been altered into 'defect remedied' and Clause 2 has been added, the Calcutta High Court continues to require a strict compliance with the formalities see Navab Sir Salimullah Bahadur v. Sainaddi Sarkar 18 Cal. L.J.P. 538. I am, with due respect, inclined to think that the words 'on receiving an application for the execution of a decree' in Rule 17 were not intended, to make a party suffer for the failure of the Court establishment, which checks plaints and execution petitions on their presentation, to at once notice all defects in any application that may be received and that these words do not preclude a Court from making an order allowing a defect to be remedied at a later stage as it might well do if the words were 'on or after receiving.' Under Section 148 the Court would even have power to extend the time allowed for remedying the defect.
5. In Varadiah v. Raja Venkata Perumal Raja (1914) M.W.N. 157, a Bench of this Court, in a decision to which I was a party allowed a petitioner to amend his application even at the time of appealing, when without much amendment it would have been barred by the 12 years' rule.
6. This was in harmony with the less rigid view taken by this Court in Sattappa Chetty v. Joyi Doorappa I.L.R. 17 Mad. 67 where it was held that Section 245 did not take away the power of the Court to amend the application for execution at any time before disposal.
7. I am of opinion for these reasons that there is no reason to exercise our power of revision in the present instance and 1 would dismiss the C.M.S.A. with costs.
8. I agree.