1. This is an appeal by the decree-holders against the order of the Subordinate Judge of Bhagalpur, dated the 16th June 1915. The facts necessary for the purposes of this appeal are these:
2. The decree-holders obtained a mortgage-decree on the 8th September 1902 against one Raja Thakur Barham. The amount of the money due was Rs. 2,96,369-5-0, but after the mortgage decree was made absolute, the mortgage properties were sold for Rs. 2,93,405 and were purchased by the decree-holders. There was, therefore, a balance of Rs. 2,964-5-0 due to the decree-holders.
3. The decree-holders made an application on the 25th May 1905 for a decree, under Section 90 of the Transfer of Property Act in respect of the above balance. On a notice being issued to the judgment-debtor, Raja Thakur Barham, he filed an objection and the 4th November 1905 was fixed for the objection to be heard. It appears, however, that the objection was not taken up on the date fixed and nobody took any notice of the objection till the 2nd July 1909, when the decree-holders made an application praying that orders might be passed upon their previous application.
4. It appears that by the time when the application on the 2nd of July 1909 was put in, Raja Thakur Barham, the judgment-debtor, died, and the necessary notices were, therefore, issued against his representatives, namely, Jai Barham and Gajai Braham.
5. The Court on receiving the return of the services of the notices passed an order on the 26th September 1909 for a decree to be drawn up under Section 90 of the Transfer of Property Act.
6. The application put in by the decree-holders on the 2nd July 1909 had prayed for a decree under Section 90 against the assets left by the deceased Raja Thakur Barham in the possession of his heirs, Jai Barham and Gajai Barham.
7. The decree under Section 90 of the Transfer of Property Act, bears no date but at the end of the decree we find the following:
Given under my hand and the seal of the Court this day the ____________ of October 1909.
Signed Paresh Chandra Banerjee, Subordinate Judge.
8. In the body of the decree we find it stated that a sum of Rs. 638-6-0 as principal with interest up to the 5th day of October 1909 had been left in arrears. This decree was originally described as a decree between the plaintiffs, decree-holders, and Raja Thakur Barham and others, defendants.
9. On the 30th September 1912 two of the decree-holders filed the firs' application for execution of the decree under Section 90. It was prayed that as Gajai Barham, one of the two representatives of the Raja had died, his two minor sons should be substituted in his place and it was further prayed that the execution should be issued against Jai Barham for self and as guardian to two minor sons of Rajai Barham and also against one Jai Kissen Barham as heirs of the Raja. Notices were ordered to be issued and after the return of the services of the notices the execution case was dismissed on the 20th January 1913, but it appears that no order was passed about substituting the names of the two minor sons in place of Gajai Barham.
10. On the 17th March 1914, an application was filed on behalf of the decree-holders stating that through some mistake in the office the name of Jai Barham and Gajai Barham had not been mentioned in the decree and it was prayed that the decree might be amended by removing the name of Raja Thakur Barham and substituting in its place the names of Jai Barham and Gajai. The Court ordered the mistake to be corrected and correction was made on the 25th of March 1914. The application for execution now in question was then made by one of the decree-holders, as the other decree-holders were dead.
11. This execution was objected to by the judgment-debtor on amongst other grounds that one of the decree-holders being dead, the execution could not proceed until the representatives of the deceased decree-holders were brought on the record and that the decree had become barred by limitation.
12. On the above facts the Subordinate Judge held that the application in question for execution was barred by limitation and hence the present appeal by the decree-holders.
13. The grounds taken in the appeal before us are these:
1. That the decree as it stood before the amendment was incapable of execution as being against a dead man and that, therefore, limitation would begin to run from the date of amendment and the present application having been within three years from the date of amendment, the execution is not barred.
2. That if the time ran from the date of the decree under Section 90 of the Transfer of Property Act it would ran from the 5th October 1909, up to which date interest was calculated in the decree.
14. In the lower Court seven issues were framed but for the purposes of the present appeal we are concerned only with the 5th issue, which is to the effect 'whether the: execution was barred by limitation?'
15. The decree under Section 90 of the Transfer of Property Act was passed on the 26th September 1909 although signed on the 6th October 1909. There can be no doubt that the decree has to bear the same date as that of the order. Although the decree was signed on the 6th of October 1909, the date of the order being the 26th September 1909, the decree should be treated as having been made on the 26th September 1909. The first application for execution was made on the 30th September 1912. Obviously, therefore, the application was barred. On behalf of the appellant reliance has been placed on the case of Mungul Pershad Dichit v. Grija Kant Lahiri 8 C. 51; 11 C.L.R. 113; 8 I.A. 123 (P.C.); 4 Sar. P.C.J. 249, where it was held that 'Although the execution of a decree may have been actually barred by time at the date of an application made for its execution, yet, if an order for such execution has been regularly made by a competent Court having jurisdiction to try whether it was barred by time or not, such order, although erroneous, must, if unreversed, be treated as valid.' In this reported case it appears that the judgment-debtor, so far from appealing against the order of attachment, acknowledged its validity and presented a petition by which he prayed to stay the attachment.
16. In the present case, however, the report of the peon states that he made enquiries as to the defendants but not having found them in their houses, on the identification, of the identifier he stuck up the notices on the entrance doors of the houses. Order V, Rule 19, provides that in case where the return has not been verified the Court should examine the serving officer on oath with regard to his proceedings. In the present case the return was not verified nor was the peon examined. Further the report itself shows that no diligent search was made for the judgment-debtor; the service of notice was, therefore, not in accordance with the law, and there is nothing to show that the judgment-debtors became aware of the proceedings. I am, therefore, of opinion that the reported case cannot be of any help to the decree-holders.
17. The next point urged on behalf of the appellants, decree-holders, is that the decree having been amended on the 21st March 1914, limitation should be counted from that date under Clause 4, Article 182 of the Limitation Act. The Clause 4 of the above Article provides that limitation begins to run from the date of amendment where a decree has been amended, namely, three years from the date of amendment, but the question is whether on the 21st March, 1914, there was any decree having legal effect. The decree under Section 90 is dated 26th September 1909 and the first application for execution was made on the 30th of September 1912, that is, more than three years after the date of the decree; that application, therefore, was barred.
18. We have to see whether this application can be saved from limitation by any conduct of the judgment-debtors. We find that the notices to the judgment-debtors were not legally served nor does it appear that the judgment-debtors were even aware of this execution petition. I am of opinion that there was no decree having any legal effect on the date of amendment. It has been contended that the decree was incapable of execution because the judgment-debtors were stated to be the deceased Raja Thakur Barham and others. In this connection reliance has been placed by the appellants on the case of Muhammad Suleman Khan v. Muhammad Yar Khan 17 A. 39; A.W.N. (1894) 191 and Mahamaya Prasad Singh v. Abdul Hamid 21 Ind. Cas. 615; 18 C.W.N. 266. In these two reported cases the decree had become incapable of execution. In the present case, however, the decree was in fact passed not, against any deceased person but against the representatives of that deceased person. Though through some mistake in the office the name of the deceased was inserted in the decree and after the name of the deceased the other judgment-debtors were described by the word others', this was a clerical mistake of the office. The amendment was made on the 21st March 1914 and on the 25th March 1914, the last application for execution of the decree under Section 90 of the Transfer of Property Act was put in by the decree-holders. In their first application for execution it is clearly stated that Thakur Barham died on the 7th September 1905, and that Jai Barham and Gajai Barham are his heirs, that these latter are in possession of the assets of Thakur Barham and that the decree under Section 90 was passed against the two latter, and that after the passing of that decree Gajai Barham died leaving him surviving two minor sons, and these minors are in possession of the, estate left by Gajai Barham, deceased, and it was prayed in that petition that the name of Gajai Barham should be struck off and the names of his minor sons be entered as judgment-debtors through the guardianship of Jai Barham. It is clear, therefore,; that the decree-holders knew who 'their judgment-debtors were and they wanted an execution not against any person deceased but against his living representatives. If any amendment was necessary the decree-holders should have had it made before the 26th September 1912.
19. For the above reasons I am of opinion that all the grounds urged on behalf of the appellants fail and the appeal is, therefore, dismissed with costs.
20. I agree.