Edavalath Potayur Manakkal Maheswaran Nambudripad Karnavan and Manager of the Illom vs Thiruvazhiyot Valappa Menon

The legal representative of the judgment-debtor is the appellant. The question for decision is whether the execution application presented by the

respondent on 4th April, 1923, is barred by limitation.

The facts are these: the original judgment-debtor one Narayanan Nambudripad died. On his death, execution was taken in 1917, against his

legal representative Vasudevan Nambudripad. He also died. In 1920, as per Ex. B execution was then taken against his legal representative

Maheswaran Nambudripad. This execution petition was dismissed for non-payment of patta for notice. The petition out of which this civil

miscellaneous second appeal arises was presented on 4th April, 1923, within three years from the last application and on the last day of the 12th

year from the date of the second appeal decree. In this application the respondent showed the deceased Vasudevan as the counter-petitioner and

not Maheswaran as he should have done. The notice was returned with the endorsement that the counter-petitioner was dead. Then the petitioner

applies for amendment of the execution application by substituting the name of Maheswaran for that of the deceased Vasudevan. The amendment

was allowed on 6th July, 1923, when it was more than 12 years after the decree in the second appeal.

The last execution application presented on 4th April, 1923, was admittedly infructuous as nothing could be done in pursuance of it, as it was

presented against a dead man and not against the proper living legal representative. If the substitution of the present appellant''s name is valid under

the provisions of Sub-rule (1) of Rule 17 of Order XXI, of the CPC then by virtue of Sub-rule (2) the application as amended must be deemed to

have been an application in accordance with law, and presented on the date when it was first presented and, therefore, not barred by limitation. If

the amendment does not, however, satisfy the requirements of the said rule, then the appellant''s name having been substituted only on 6th July,

1923, the execution petition under appeal can be deemed to have been presented against him only on 6th July, 1923, when 12 years had elapsed

after the passing of the decree and is, therefore, clearly barred by limitation. That it is so barred is the argument urged on behalf of the appellant.

Under Order XXI, Rule 11, Sub-rule 2, Clause (1) every application for execution shall contain among other particulars the names of the

persons against whom execution of the decree is sought. Under Order XXI, Rule 17, Clause (1), CPC the Court shall ascertain whether the

requirements laid down in Rule 11 have been complied with, if not complied with, it is open to the Court, to reject the application or to allow the

defect to be rectified.

In the present case the name of the legal representative was not correctly entered in the application for execution. On this ground the Court

could have either rejected it at once or allowed the defect to be remedied; but the Court did not detect the defect on account of the destruction of

the previous records due to the Moplah rebellion. If the records had been available there can be no doubt that the Court would have adopted

either of the courses mentioned above. The attention of the Court, however, was drawn to the defect later by the application for amendment

already referred to and the amendment asked for was allowed by the Court. Parties should not be made to suffer by reason of the failure of the

Court to check the correctness of the entries in their execution petition [See the principle of the decision in Vemuri Pitchayya v. Ankineedu

Bahadur Zemindar Garu 76 Ind. Cas. 750 : 1924 45 M.L.J. 651 : 18 L.W. 739 : 33 M.L.T. 125 : AIR 1924 Mad. 367. The dictum of Jackson,

J., in Tharamal Parkam Kalpathoor Thulicha Puthiatuth Sankaran Nair Vs. Uruppoyil Ambu and Others, relied on by the appellant, no doubt,

supports him to a certain extent but that is in conflict with the decision of the Bench in Vemuri Pitchayya v. Ankineedu Bahadur Zemindar Garu 76

Ind. Cas. 750 : 1924 45 M.L.J. 651 : 18 L.W. 739 : 33 M.L.T. 125 : AIR 1924 Mad. 367. Further we may point out that the failure to furnish a

list of Immovable and moveable properties by the decree-holder stands altogether on a different footing.

It is true that the lower Court is wrong in ascribing decree-holder''s mistake to the destruction of his Vakil''s records during the rebellion. The

evidence shows that the prior application was in the office of his Vakil and that by the exercise of some care and diligence the mistake could well

have been avoided. It is, however, not shown that the mistake was otherwise than bona fide. Evidently the error must have crept in on account of

an oversight.

In these circumstances we think the amendment fell within the scope of Order XXI, Rule 17, Clause (1) of the CPC and, therefore, by virtue of

Sub-rule (2) the application as amended must be deemed to have been one in accordance with law presented on the date when it was first

presented.

In this view, we agree with the learned Subordinate Judge and hold that the present application is not barred by limitation. The appeal against

the appellate order is dismissed with costs.