1. The appellant in this appeal obtained a decree for about Rs. 1600 ex parte against three defendants on 1st October, 1929. There was an application by the first defendant only to have this decree set aside and an order was passed in his favour that it would be set aside if he deposited a sum of Rs. 1100 and odd. Some of this money was deposited but not all and on 27th June, 1930, a revised decree was passed by the Court, in which due notice was taken, in calculating the amount due by the defendants, of the amount which had been so deposited and was to be withdrawn by the decree-holder. The decree-holder subsequently filed a number of execution applications beginning with 1932 and continuing until 1936 and in all these applications, he proceeded on the assumption that the liability of the defendants was that recorded in the original decree. In execution, the first defendant's properties were brought to sale in February, 1937, and an application was filed under Order 21, Rule 90, Civil Procedure Code by the guardian of the first defendant's children to set that sale aside. While that application was pending, the decree-holder stated that he discovered that he had had the properties sold for an amount larger than what was due to him; he accordingly, on his own initiative, asked the Court to set the sale aside, and the sale was set aside accordingly. Then comes the application, from which the present appeal arises, made by the decree-holder in July, 1937, for the attachment and sale of the properties of the second and third defendants. In this execution application, the decree-holder, of course, bases his claim upon the revised decree of 1930. Both the Courts below hold that the application is barred by limitation on the ground that the previous applications were not in accordance with law and this is the question which it is necessary to decide in this appeal.
2. The main reason given by both the Courts for holding that the present execution application is barred is that in the previous applications, the decree-holder applied to the Court to execute not the decree of June, 1930, but the decree of October, 1929, which had no further existence or validity. Put in this way, the argument has some plausibility but the learned advocate for the appellant has been able to show me that in very similar circumstances, such an argument has not found favour with the Courts. My attention has been called to two authorities. The first of these is a decision of a single Judge of the Madras High Court in Palli Vittala Hegde v. Paniyur Hosamane Sheenappa Shetty (1933) 38 L.W. 877. In that case, there was an original decree and an appeal from that decree, the result of that appeal being that the decree was modified and a lesser sum was held to be due to the decree-holder. In spite of that modification, the decree-holder applied for execution alleging that the full amount decreed by the first Court was due to him and making no reference to the modification introduced by the decree of the appellate Court. It was held that such an application cannot be said to be one not in accordance with law. The learned Judge says:
As those petitions were erroneous in particulars, if anybody had taken care to detect the error, the decree-holder should have been required to correct the errors and represent the petition with correct particulars. This not having been done....they (the petitions) were dismissed .... the omission from the previous execution petitions of the particulars required by Clause (d) and Clause (g) was not sufficient to make them otherwise than in accordance with law.
3. The second case is reported in Ram Prasad Singh v. Beni Madho Singh : AIR1936Pat26 . This is a case of a decree which has not been appealed against but which has been amended and the result of the amendment was that some of the persons who were liable under the original decree were exonerated from liability. In spite of this fact, the decree-holder applied for execution against all the defendants. It was held that such an application was in accordance with law; that an error of this kind was not one of substance but of form and the legality of the execution proceedings should not be allowed to be affected by it. Here, in the present case, it seems to me quite clear that the matter is one not of substance but of form. Though there might have been two decrees one superseding the other and though technically speaking, the second decree is the only one that can possibly be executed there is only one liability and there has never been any doubt that the judgment-debtors in this case were under liability, as a result of the litigation, to the appellant. The essential facts of the situation are simply that the appellant, it may be owing, as the learned District Munsif puts it, to gross negligence, when he came to Court, has omitted to study the papers connected with the case and is claiming more money than is legitimately due to him. The fact that he supports that claim by putting forward the decree of 1929 seems to me to have no serious bearing on the situation., There were also cited two cases in which it was held that an application by the decree-holder to execute his decree for more than is due to him is not in itself an application not in accordance with law. In Ram Gopal Shriram v. Ramgopal Bhulada I.L.R.(1933)Bom. l, a shop by owner Pusaram Latchmandas Marwadi, the decrees-holder omitted to mention that there was a cross-decree against him and that therefore he could execute his decree only for the balance. Muthukrishna Raja v. Viswalinga Kadavarayan 1940 M.W.N. 547, was a clear case of too much money being claimed. These cases are not quite so directly to the point as Pallivittala Hegde v. Paniyur Hosamane Sheenappa Shetty (1933) 38 L.W. 877, and Ram Prasad Singh v. Beni Madho Singh : AIR1936Pat26 , but they do strengthen the argument for the appellant that this question of claiming more than is due is an irregularity which does not affect the legality of the application. As against these authorities nothing of any value has been cited by the learned advocate for the respondent. The only case which bears remotely on this point is Appu Rao v. Rawiakrishna Chettiar I.L.R.(1901) Mad. 672, in which the decree of the first Court was confirmed by the appellate Court which also added a decree for costs, but the facts of that case, are essentially different from the facts of this case. For the reasons which I have given, I think that the applications of the appellant between 1932 and 1936 must be deemed to have been made in accordance with law within the meaning of Article 182(5) of the Limitation Act and therefore the present application of July, 1937, must be held to be in time. This appeal will therefore be allowed, the order of the District Judge set aside and the execution application restored to file to be disposed of according to law. The respondents must pay all the costs of the appellant, hitherto incurred.
4. Leave to appeal refused.