1. The execution application before us was so far from being in the proper form when it was presented, that after eight months the petitioner appellant here crossed it out and amended it byre-writing it as a whole. The interval had been spent almost entirely in appellant's Vakil asking for and the lower Court mechanically granting extension of time in instalments of two weeks. The case is not creditable either to the Vakil or the Court.
2. The first point taken is that for purposes of limitation the date on which the application was finally admitted, not that on which it was first presented, is the starting point, because appellant's interest is to put that starting point as late as possible. Order XXI, Rule 17 (2), of Schedule I of the Code of Civil Procedure, however, lays down that an amended application shall be deemed to have been presented on the date on which it was first presented. It is suggested that this provision does not abrogate the law, as it stood before its enactment, that the presentation should be treated as effected when the application was finally accepted, the decree-holder thus having his choice between two dates. It is sufficient that, even if the Jaw before 1908 stood as is alleged, the wording of Order XXI, Rule 17, is clear and general and does not countenance this suggestion.
3. Next it is said that time should run from some one of the various applications for time inscribed on the application, which have been referred to above, as a step in-aid of execution. Bat when the alleged step was taken there was no execution pending before the Court, which it could aid. This, therefore, also fails.
4. Lastly, it is urged that the appellant should be regarded as having really presented two applications, one of which must be deemed to have been withdrawn when he made a fundamental and comprehensive amendment above mentioned. In fact he then put in the original petition with an endorsement 'filed amended' and paid for no second stamp; and it is impossible to identify any withdrawal of the old petition or presentation of a new petition with what he did.
5. The appeal against appellate order is dismissed with costs.
Seshagiri Aitar, J.
6. I agree.
7. Mr. S. Subramania Ayyar for the appellant has raised some ingenious contentions. The first is that the application for execution must be taken to have been presented on the date of its re-presentation and not on the date of its original presentation, Order XXI, Rule 17, Clause 2, Schedule I of the Code of Civil Procedure, is against this argument. Then it was suggested that this rule is only an enabling provision and that the Legislature intended to provide alternative rights to the decree-holder and not to deprive him of the existing rights. This contention was based on the facts that before the Procedure Code of 1908 was passed, there was no provision corresponding to Order XXI, Rule 17 (2) and that it was held by some Courts that for purposes of computing the period of limitation under Article 179 of the Limitation Act, it is the date of the re-presentation that should be regarded as the date of applying in accordance With law. The learned Vakil from these facts advanced a bold argument that the Legislature notwithstanding Order XXI, Rule 17 (2), intended to perpetuate the old view of the law and provided an additional right to the decree-holder to enable him to count the original presentation date as also enduring for his benefit. I am unable to accept this contention. With knowledge of the old decisions the Legislature has deliberately enacted that it is the date of the original presentation that starts limitation.
8. The next contention was that inasmuch as the Court granted a dozen times time to enable the applicant to comply with the requirements of the Code, each of those endorsements granting time was a step in-aid of execution. Reliance was placed on Abdul Kadur Rowther v. Krishna Malamal Nair 23 Ind. Cas. 533 : 15 M.L.T. 305 : (1914) M.W.N. for this argument. In that case an execution application was on the file of the Court and the applicant was given time to furnish particulars to enable the Court to deal effectually with that application. The grant of time was held by the learned Judges as a step in aid of execution. Even in that view, the present contention cannot be sustained. Here there was no application on the file and consequently there can be no step-in-aid of execution; what the applicant was asked to do was to make the application a valid one on which the Court's order can be passed; an adjournment granted to make an irregular application not placed on the tile a regular one is not a step-in-aid of execution.
9. I agree that the appeal should be dismissed with costs.