Teunon and Newbould, JJ.
1. This appeal arises out of execution proceedings.
2. It appears that on the 23rd December, 1908, a decree for a sum of Rs. 6,473 was made ex parte against three brothers, Dadhiram, Umesh and Ganesh.
3. On the 2nd July, 1912, defendant No 3, Ganesh, applied for an order to set aside the ex parte decree. On the 8th of February, 1913, the Court made an order in these terms: 'Application for rehearing being granted, the ex parte decree is set aside against the applicant Ganesh Chandra Roy.'
4. Of the rehearing, no notice was given to defendant judgment-debtors Nos. 1 and 2, but on the 26th September, 1913, after taking the evidence adduced by the plaintiff and defendant No. 3, the Subordinate Judge delivered judgment and made an order as follows: 'The suit is dismissed against defendant No. 3 and is decreed ex parte against defendants 1 and 2 with costs.' Thereafter a decree in the said terms was drawn up.
5. The present application was made on the 1st July, 1916, and is one for execution of the decree of the 26th September, 1913, against judgment-debtors 1 and 2.
6. A prior application for execution against all three defendants had been made in the year 1911, the proceedings taken thereon terminating on the 11th June, 1912. It follows that notwithstanding that application, the present application if it is to be regarded as one for the execution of the decree of the 23rd December, 1908, is barred by the 3 years' rule of limitation, unless some other fresh starting point can be obtained.
7. The question for determination then is, whether the order and decree of the 26th September, 1913, are to be regarded as binding on defendants 1 and 2 until set aside by proceedings properly taken for that purpose, or whether they are to be regarded as mere surplusage, or as without jurisdiction and void. In support of the position taken by the decree-holder respondent, we have been referred to the case of Malkarjan v. Narhari (1900) I.L.R. 25 Bom. 337 ; L.R. 27 I.A. 216. It has also been contended that the decree or order of the 26th September, 1913, in effect amends or reviews the decree of the 23rd December, 1908, and that limitation should run from the date of the amendment under Article 182, Clauses 3 and 4 of the schedule to the Limitation Act In support of this view have been cited the cases in Kali Prosanna Basu Roy v. Lal Mohan Guha Roy (1897) I.L.R. 27 Calc. 258, and Amar Chandra Kundu v. Asad All Khan (1905) I.L.R. 32 Calc. 908 and also to the case of Gopal Chundcr Manna v. Gosain Das Kalay (1898) I.L.R. 25 Calc. 594: Abdul Khadir v. Ahammad Shaiva Ravuthar (1911) I.L.R. 35 Mad. 670, Vydianatha Aiyar v. Subramania Patter (1911) I.L.R. 36 Mad. 104, and Ashfaq Husain v. Gauri Sahai (1911) I.L.R. 33 All. 264 ; L.R. 38 I.A. 37. The case last mentioned is perhaps the one most in point, but while in that case the later decree granted against one of the defendants was necessary to the execution of the decree-holder's mortgage decree, here, it is to be remembered, as against the defendants 1 and 2, the decree of the 23rd December, 1908, remained untouched throughout and has been from that date enforceable against them. To the proceedings taken on defendant-No. 3's application on the 2nd July, 1912, and to the subsequent proceedings taken on and alter the order of the 8th February, they were not made parties. On the principles laid down, therefore, in the cases of Khiarajmal v. Daim (1904) I.L.R. 32 Calc. 296 ; L.R. 32 I.A. 23, Suresh Chunder Wum Chowdhry v. Jagut Chunder Deb (1886) I.L.R. 14 Calc. 204, and Hanuman Prasad v. Muhammad Ishaq (1905) I.L.R. 28 All. 137, it would seem that the order of the 26th September, 1913, in so far as it purports to be one made against defendants 1 and 2, is a mere nullity. Further, the decree of the 23rd December, 1908, against defendants 1 and 2 having continued in force throughout, the order of the 23rd September, 1913, in so far as defendants 1 and 2 are concerned, may be regarded as merely an intimation that the decree of the date first mentioned, in so far as it was one against defendants 1 and 2, was not affected by the order of the later date. The formal decree then drawn up was thus a mere surplusage and a ministerial irregularity.
8. On the whole we are of opinion that the contentions of the appellant should prevail. We therefore decree this appeal but, in the circumstances, without costs.