1. This is an appeal on behalf of the judgment-debtor against an order passed in execution of a decree, dated the 21st December 1897. The application now under consideration was presented on the 23rd March 1910. The application, on the face of it, was made more than twelve years after the date of the decree, and exception was forth-with taken by the judgment-debtor that the application could not be entertained in view of the provisions of Section 48, Sub-Section (1) Clause (a) of the Code of Civil Procedure, 1908. This objection has been overruled and execution directed to proceed. On the present appeal, it has been argued that the decree-holder was bound to prove that the case fell within Section 48, Sub-Section (2), of the Code, namely, to establish that he had been prevented from executing the decree by the fraud or force of the judgment-debtor. In our opinion, there is no foundation for this contention.
2. If the application for execution be treated as a fresh application made beyond twelve years from the date of the decree, it would no doubt, be necessary for the decree-holder to bring one case within Sub-Section (2) of Section 48. But the decree-holder is entitled to succeed on the ground that the application now under consideration was in continuation of a previous application presented on the 22nd June 1909. During the pendency of that application, the judgment-debtor made an application in insolvency, and on the 11th October 1909, at his instance, the Court stayed execution under Section 50 of the Provincial Insolvency Act. Under these circumstances, it would clearly be open to the decree-holder, when the bar imposed for the benefit of the judgment debtor had been removed, to invite the Court to revive and continue the previous application. This is clear from the decision of the Judicial Committee in the case of Kamaruddin v. Jawahir Lal 27 A. 334 : 1 C.L.J. 381 : 15 M.L.J. 258 : 9 C.W.N. 601 : 2 A.L.J. 397 : 7 Bom. L.R. 433 : 32 I.A. 102. On behalf of the judgment-debtor, it has been suggested, however, that if this view is adopted, a decree-holder may capriciously extend the period of twelve years prescribed by Section 48; but that apprehension is entirely unfounded. The principle, upon which an application for execution is deemed in substance to be a continuation of a previous application for execution, is explained in the cases of Kedar Nath Sarkar v. Prodyat Kumar Tagore 14 C.L.J. 610 : 11 Ind. Cas. 48; and Amulya Ratan Sadhukhan v. Preo Nath Dutt Ind. Cas. 886. It is pointed out in these decisions that a decree-holder is entitled to the benefit of this principle, only when a previous execution proceeding has been arrested, not by reason of any default on the part of the decree-holder but by reason of a bar imposed at 'the instance and for the benefit of the judgment-debtor. When such a bar has been removed and the decree-holder is again free to continue the proceedings, the Court may deem the so-called fresh application as an application essentially in continuation of the previous application. There is this further restriction that a prayer for new relief, not contained in the previous application, cannot be embodied in the new application. If this doctrine of revival of a pending application were not adopted, grave injustice might be done to the decree-holder, as is illustrated by the facts of this very case. The execution was stayed, as we have already stated, on the 11th October 1909. The twelve years prescribed by Section 48 expired on the 21st December 1909. The application for execution was dismissed by the Court on the 15th January 1910, as no further communication had been received from the Court, in which the insolvency proceedings were pending. Consequently, on the 15th January 1910, if the contention of the appellant is well-founded, the decree-holder lost all his rights under the decree, merely because the proceedings had been stayed for the benefit and at the instance of the judgment-debtor. It is thus clear that the decree-holder would have been entitled to make an application to the Court to continue the execution-proceedings after the removal of the bar, that is, after the termination of the insolvency proceedings. Does it then make any difference that the application now before the Court was actually made before the termination of the insolvency proceedings? The answer must obviously be in the negative, for the decree-holder cannot justly be punished for his diligence. We have further been informed that the insolvency application was dismissed on the 21st April 1911, that an appeal to this Court was dismissed on the 12th April 1912, and that the application to review this last order was dismissed on the 21st May 1912. Consequently, the bar imposed by the judgment-debtor disappeared on the 22nd April 1911, and it would have been open to the decree-holder thereafter to apply for revival of the previous proceedings. The fact that he made the application on the 23rd March 1910, that is, more than a year before he need have done, cannot be taken to his detriment. No doubt, the application is nominally one for execution, and does not Specifically ask for revival of the previous proceeding; but, in matters of this description, regard mast be had to the substance rather than to the form, and there is no real difficulty here, as the decree-holder now asks for precisely the same relief as in the previous application. In our opinion, there is no substance in the appeal and the order of the Subordinate Judge must be confirmed.
3. The appeal is dismissed with costs. We assess the hearing-fee at ten gold mohurs.