1. The order was not under Section 245 of the Code of the Civil Procedure, Act XIV of 1882, but under Section 249 and is appealable as if it was a decree. This, disposes the preliminary objection.
2. The judgment-creditor, who is the respondent in the appeal, applied to the District Munsif for proclamation and sale of certain property of the judgment-debtor, and so far as it appears he insisted that he had a right to sell the property in execution of his decree which was a decree for money, even though the property had never been attached. It was rightly held by the Munsif that such an application could not be granted and the judgment-creditor so far as we have been able to ascertain never asked the District Munsif to permit him to amend the petition by adding a prayer for attachment. He appealed against the order of the Munsif, but while the Subordinate Judge held that no relief could be granted on the respondent's petition he allowed him to amend the petition by asking for attachment of the property. But at the time the Subordinate Judge passed his order the decree was time-barred and the question is whether the Subordinate Judge was right in allowing amendment to the prejudice of, the judgment-debtor so as to preclude him from pleading limitation. We are clearly of opinion that he was not.
3. In Weldon v. Neal (1887) 19 Q.B.D. 394 : 56 L.J.Q.B. 621 : 35 W.B. 820 it is laid down by Lord Esher, M.R.,--' We cannot act on the settled rule of practice, which is that amendments are not admissible when they prejudice the rights of the opposite party as existing at the date of such amendments. If an amendment were allowed setting up a cause of action which if the writ were issued in respect thereof at the date of the amendment, would be barred by the Statute of Limitations, it would be allowing the plaintiff to take advantage of her former writ to defeat the statute and taking away an existing right from the defendant, a proceeding which as a general rule would be, in my opinion, improper and unjust. Under very peculiar circumstances the Court might perhaps have power to allow such an amendment, but certainly as a general rule it will not dp so.
4. This rule has always been followed in India See Sallappa Chetti v. Jogi Soorappa 17 MP. 67; Mallikarjuna v. Pullayya 16 MP. 319 and Alagappa Chetti v. Vellian Chetty 18 MP. 33 and the learned Counsel for the respondent has cited many rulings. He has not referred us to any case which lays down the law differently. There are no especial circumstances in this case which would justify us in departing from the rule. The judgment-creditor's action appears to have been deliberate and we think that in such a case it would be unjust to the judgment-debtor, to allow the judgment-creditor, to alter the nature of the application after the decree has been barred.
5. We set aside the order of the Subordinate Judge and restore that of the District Munsif with costs in this and the lower Appellate Court.