1. The appellant here is the decree-holder in O.S. No. 68 of 1921. In 1926 the appellant filed an execution petition seeking to attach certain property and obtain orders of attachment. That execution petition was recorded in 1927 with a direction to the appellant to apply by separate application for sale of the attached property. A subsequent application, E.A. No. 49 of 1928, was made in March 1928 and was ordered in July to be 'struck off the file to be restored when applied for after the stay is raised,' an order having been received from the High Court, where a civil miscellaneous appeal has been filed, to stay execution shortly before this. Unfortunately the disposal of the civil miscellaneous appeal occupied several years, and it was not until 27th April 1934 that the judgment of the High Court was delivered. That judgment runs as follows:
The only question for decision is whether the attachment of the several items made on 2nd and 3rd February 1926 is according to law. So far as the superstructure of the houses described in items 4 to 6 are concerned, no objection to the validity of the attachment is raised before us and the attachment thereof must be held to be lawful. As regards the other items and the land on which the superstructure stand, they were undoubtedly unenfranchised Dorathanam service inams on the dates of the attachments and therefore not liable to attachment. In this view of the case it is unnecessary to decide whether the subsequent order, of Government directing the resumption of the inams was a completed and effective resumption. The attachment of items 1 to 3 and of the lands on which the houses are situate must be set aside and the appeal allowed to this extent.
2. About six months after the judgment had been delivered, the appellant applied in E.A. No. 256 of 1934, praying for the restoration of E.A. No. 4 of 1926 to file and for ordering attachment for the second time of the property which had been attached in 1926 and the attachment of which, as we have just seen, had been set aside by the High Court. The learned Subordinate Judge of Berhampore in his order dated 17th October 1935 refused to grant this part of the appellant's application, but permitted him to continue the petition, E.P. No. 49 of 1928, with respect to those items of property the attachment of which had been declared valid by the High Court. This is therefore an appeal by the appellant against that part of the learned Subordinate Judge's order which is against him. The learned Subordinate Judge has recognized the right of the appellant to make this application in 1934 even though the 12 years period laid down in Section 48 of the Code had already expired, and there is no serious contest before us that one if not two execution petitions were not still pending from 1926 to 1928, as there had been no final order disposing of them. The only questions therefore which have to be decided are : (1) whether the High Court in its judgment in C.M.A. No. 234 of 1928 has in effect dismissed these execution petitions so that with respect to the items with which we are now concerned it is impossible to regard them as any longer continuing or being regarded as valid; and (2) whether the circumstances of this case are such that we ought to permit such amendment of these petitions as may be necessary in order; to enable the appellant to proceed further with his execution.
3. On the first point we think considerable difficulty might arise if we consider only execution application No. 4 of 1926, but we are of opinion that if E.P. No. 49 of 1928 is taken into account there can be nothing in the judgment of the High Court in C.M.A. No. 234 of 1928 which in any way relates to the prayers in that petition. All that the High Court said was that an attachment effected in February 1926 was invalid. In 1928, the appellant applied for the sale of properties which had been attached in 1926. The High Court has said nothing as to whether if a prayer had been inserted in the petition in 1928 for the attachment of those properties and the attachment had been effected accordingly that attachment would or would not have been valid. That matter as we read the judgment of the High Court, has been left open. The appellant's learned Counsel has therefore requested us to permit him to amend E.P. No. 49 of 1928 by asking for the attachment of the properties now in dispute, a request which he did not make in 1928 itself because at that time an attachment was already in force.
4. The second question which we have to decide is whether in the special circumstances of this case we should permit such an amendment to be made. It has been argued by Mr. Subba Rao, for the respondent, that we have no discretion in this matter and that once it is discovered that an application has not been properly made within the 12 years period provided in Section 48 no amendment can be allowed which would have the effect of depriving the respondent of putting forward the plea of limitation. The authorities however which he has brought to our attention on this point do not go so far as to say that there is no discretion left to the Court. They lay down the very salutary rule that ordinarily an amendment should not be allowed which would have the effect of depriving the respondents of putting forward such a plea. They do not say that in special circumstances the Court is powerless to order such amendments. We are clearly of opinion that the circumstances in this case are so exceptional as to justify the amendment proposed. In 1926 the appellant obtained the attachment of these properties. No doubt it has since been decided that that attachment was illegal. But the matter was obviously a disputed one upon which the attaching Court itself took a different view. Then when the appellant attempted to have the property which had been attached sold in 1928 his attempt was frustrated by an order of stay issued by this Court. By that time proceedings to resume the inams had been taken by the Government and it is the contention of the appellant that had attachment not already been effected he might have validly applied in 1928 for the attachment of these properties. But for the whole of the period 1928 to 1934 he could take no such action owing to unfortunately long continued pendency of the appeal in the High Court. He took no steps after the appellate judgment had been delivered within a reasonable time, and although he appears to have asked specifically only for the revival of the earlier petition 4 of 1926 the learned Subordinate Judge himself has decided that the proper petition to be revived for the limited purpose which he was prepared to concede was E.P. No. 49 of 1928. Although until the actual hearing of this appeal there has been no explicit request either to the Court below or to this Court for the granting of the amendment which is now proposed, we think in all the circumstances that the amendment should be allowed. It appears that E.P. No. 49 of 1928 has by this time been dismissed as it was not seriously pressed with regard to the comparatively unimportant properties against which it was allowed to proceed. 'We direct that the application be restored to file and that the petitioner-appellant be allowed to amend it by asking for the attachment of the properties which are the subject-matter of this appeal. The learned Subordinate Judge will then proceed to dispose of E.P. No. 49 of 1928 according to law. We direct in the peculiar circumstances of this case that each party bear his own costs of this appeal. It is of course clear that this judgment has in no way decided the question whether these properties are or are not liable to attachment.