1. This appeal arises on an order of the learned District Judge of 3hupra, Saran, setting aside an order of the Subordinate Judge, first Court, on an application under Section 244, Civil Procedure Code.
2. In the Court of first instance the judgment-debtor objected to the execution of a decree on the ground that the application for execution was out of time. The Subordinate Judge disallowed the objection, the learned District Judge has allowed it.
3. The facts are briefly as follows: The decree was obtained on the 6th August 1902, and the first application for execution was struck off on the 6th June 1905. A second application was made on the 5th December 1907, and was admittedly within time, although it appears not to have been precisely ascertained when the application of 1905 was filed. The application was in proper form, under Section 235, Civil Procedure Code, and the mode in which the assistance of the Court was required was by attachment of a certain house and also by attachment of some shares in a revenue-paying mouza. The executing Court, without entertaining the application, returned it for supplying the necessary extract from the Collector's Registers, under Section 238, Civil Procedure Code, and for a correct valuation, within 10 days. The application was re-filed on the 15th June 1908, i.e., nine days beyond the period of limitation, if counted from June 1905, with an application explaining the delay. The Subordinate Judge admitted the application and registered it. On notice being issued under Section 248 to the judgment-debtor, she came in, and objected that the application was barred, as the application was not re-filed within the time allowed, and was re-filed more than three years after the last application.
4. The Subordinate Judge, relying on the unreported case of Uma Charan Powbit v. Kali Krishna Chowdhuri 10 C.W.N. xl, (Appeal from order No. 50 of 1905), held that in view of the explanation of the delay, the Court must be taken to have extended the time; secondly, that the original application was in itself capable of execution so far as the house was concerned and should have been registered on the 5th December 1907. The learned Judge, relying on the provisions of Section 245, Civil Procedure Code, holds that, however surprising (he might have said inequitable) the logical result of the proposition may be, the Court is bound to proceed on an application for execution as a single unit. In this he has unconsciously followed the decision of this Court in Gopal Sah v. Janki Koer 23 C. 217, in which it was held, that once the Court has returned the application for amendment of any kind, even though the defects are not so serious as to vitiate the application, it cannot subsequently take into consideration the nature of the defects, but is bound to hold the application barred, even if it is admitted and registered after correction, but beyond the period of 3 years from the previous execution. In coming to this conclusion they relied on the Full Bench decision in Asgar Ali v. Troilokya Nath Ghose 17 C. 631, where the facts were totally different, and they dissented from the previous rulings of this Court in Mahomed v. Syud Abedoollah 12 C.L.R. 279, which was followed in Fuzloor Ruhman v. Altaf Hassen 10 C. 541, and from the Madras Court in Rama v. Varada 16 M. 142. That it was unnecessary to lay down such a wide general rule excluding all equitable considerations which might hereafter arise for the decision of the case before them is clear. In that case the application did not contain the necessary materials under Section 235, and there does not appear to have been any application capable of execution from the start. That alone seems to entirely distinguish it from the case now before us, and that the wide rule laid down went too far, is clear from the fact that Ghose, J., one of the Judges who delivered a judgment in that case, was also a party to the unreported case, we have already referred to, in 1905, where it was held that where an application had been returned to rectify a mistake, for which the decree-holder was not responsible, and was not re-filed within the period of limitation, the executing Court was right to look into the merits and hold that the application was not barred. Notwithstanding that the same wide dictum was laid down by the Allahabad Court in Kifayat Ali v. Ram Singh 7 A. 359, it is clear from the later ruling of that Court in Jiwat Dube v. Kali Charan Ram 20 A. 478, that the Allahabad Court declined to be bound by any such hard and fast rule. Were the matter res Integra, we should be inclined to hold that Section 245, Civil Procedure Code, being a mere rule of procedure cannot affect the statute of limitations, and that on the decree holder showing that he had made an application in accordance with law within time, he would get a fresh start under Article 179(4). The application to attach the house in this case is an application made in accordance with law, and we do not see why the decree-holder should be barred merely because he neglected to comply with a formal rule of procedure. His application was liable to dismissal within the period of limitation, and had it been dismissed, he would have had plenty of time to make a fresh one. We are supported in this view by the ruling in Gopal Chunder Manna v. Gosain Daskalay 25 C. 594 : 2 C.W.N. 556, which was a reference to a Full Bench on another point, but Banerjee, J., in the order of reference, decided a similar question, which was not referred, and on which Maclean, C.J., who was one of the referring Judges, reserved his opinion. In delivering the judgment of the Full Bench Maclean, C.J. expressed his entire concurrence with the opinion of Banerjee, J., on the question whether an application of this nature can be considered as one according to law within the meaning of Article 179, Limitation Act.
5. What Banerjee, J., says is this: 'Now the question whether an application for execution, or for taking some step-in-aid of execution, is one according to law within the meaning of Article 179, Clause (4), has to be determined with reference to the circumstances of each case, and while on the one hand, an application must be in substantial compliance with the law, in order that it may be regarded as one coming within the meaning of Clause 4, on the other hand, it is not every informality, that would vitiate an application and take it out of that clause. Were it otherwise, bona fide applications for execution would fail to save limitation, owing to trivial defects of form, a result which I do not think the Legislature could have intended.' He cites as authorities the case of Bal Kishen v. Bedmati Koer 20 C. 388, and Rama v. Varada 16 M. 142, the case which goes farthest in disregarding defects of form and which was expressly dissented from in Gopal Sah v. Janki Koer 23 C. 217. He then proceeds to distinguish the Full Bench case in Asgar Ali v. Troilokya Nath Ghose 17 C. 631, and Gopal Sah v. Janki Koer 23 C. 217, and finally cites with approval Prinsep, J's observation in that case, that one of the errors committed by the decree-holder was in mistaking the amount of his decree, and the Subordinate Judge has consequently limited the execution to the smaller sum. If that had been the only defect, the decree would have been capable of being executed for the smaller sum just as here the decree could be executed by attachment of the house. He concludes by holding that the decree could well have been executed so far as the application for delivery of the property was concerned in spite of various formal defects in the application. Finally, the notice under Section 248, Civil Procedure Code, which, as in the case now before us, was issued after the three years had expired, was held to save limitation and to make the defective application effective. We, therefore, find that there is ample authority for holding that the application of the 5th December 1907, was an effective step-in-aid of execution.
6. And there is another circumstance which has not been noticed by either of the lower Courts, and that is, that the decree-holder's application to the Collector for the necessary extracts must have been made, in view of the fact that his explanation was accepted and that his re-filing of the application was only 9 days out of time, before the 6th June 1908, or within the period of limitation. This is itself a step-in-aid of execution. For all these reasons, we held that the application for execution is not barred, and we accordingly set aside the order of the learned District Judge and restore that of the Subordinate Judge with costs which we assess at two gold mohurs as the hearing fee in this Court.