Bishundeo Sahu vs Mahadeo Prasad Sahu

Ross, J.—This appeal raises a question of limitation. The decree under execution is a rent decree for less than Rs. 500 and, therefore, under Clause (6) of Schedule III to the Bengal Tenancy Act it had to be executed within three years. The decree is dated the 31st May 1921. Execution was taken out on the 7th June 1923, but that case was dismissed. On the 30th May 1924, a second execution was taken under which five plots of the judgment-debtor''s holding were sought to be attached. This case was dismissed for default on the 23rd September 1924, but on an application for review, was restored on the 6th December 1924; and the 15th May 1925 was fixed for sale.

In the meantime an auction-purchaser under a previous decree had filed a claim which was allowed on the 9th May 1925; and on that date, the execution case was dismissed. On the 8th June 1925, the present application was made with a prayer that it should be treated as being in continuation of the previous application; and in this application the property pacified in the previous application and some newly added properties were sought to be sold.

The question is whether the application of the 8th June 1925, should be, treated as an application in continuation of that of the 30th May 1924. The tests have been laid down in more than one case. The previous application must have been dismissed without any default on the part of the decree-holder, and the scope and character of the two applications must be the same. It is conceded on behalf of the judgment-debtor-appellant that the first condition is fulfilled; but it is contended that the second is not, inasmuch as new properties have been now added in the application. There are cases, the authority of which is not disputed, which show that during the pendency of an execution additional properties may be entered in the application by way of amendment.

Now the question is whether this addition can be made after the date of limitation where the previous execution case has been improperly dismissed. It seems to me that, while it cannot be said that the Munsif acted without jurisdiction in dismissing the execution case, yet the order was wholly illegal and should not operate to the prejudice of the decree-holder. He ought, as far as possible, to be put in the same position as if that order had not been made. The learned Advocate for the appellant concedes that if the application had been made on or before the 15th May, it might possibly have been treated as an application in continuation of the previous case. But as it was not made until the 8th June, he contends that there was no longer any opportunity for the decree-holder to amend his application.

In my opinion this is not a correct way of looking at the matter. The claim was allowed on the 9th May, that is, six days before the date for sale. There upon it became necessary for the decree-holder to ascertain whether the judgment-debtor had other properties to be proceeded against; and it must be taken that, if on the 15th May, he had applied to the Munsif for time to ascertain these properties, time would have been given, the application being of a reasonable character. The present application in execution was made on the 8th June within a reasonable time from the date on which the claim was allowed. If the decree bolder is not to be prejudiced by the illegal order dismissing the case.

I think that, as the execution case was dismissed without any default on his part and the amendment (for it is virtually an amendment of the application) was made within a reasonable time from the date when amendment became necessary the application ought to be treated as an application in continuation of the previous execution.

The appeal must be dismissed with costs.

Kulwant Sahay, J.

I agree.