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Agarwala, J.—These three miscellaneous appeals arise in the following circumstances. On 30th September 1924, the Maharaja of Dumraon obtained a decree for costs against a large number of persons including Ram Sarup Singh and Parmanand Singh. The decree amounted to Rs. 2632-4-0. An appeal against the decree was dismissed for default by this Court on 6th January 1926. After several infructuous attempts to execute the decree the decree-holder presented an application for execution which was numbered as Execution Case No. 96 of 1937. The petition of execution stated that the persons against whom execution was sought was Kesho Prasad Singh. Kesho Prasad Singh is one of the two sons left by the judgment-debtor, Ram Sarup Singh who died before this application for execution was presented. Kesho Prasad Singh objected to the execution on the ground that some of the judgment-debtors had applied to the proper authority in the United Provinces under the U.P. Encumbered Estates Act of 1934 for apportionment of their liability for the decree for costs. This objection was overruled and has given rise to Miscellaneous Appeal No. 379 of 1938 on behalf of Kesho Prasad Singh.
In 1937 the decree, holder applied for the attachment of a sum of Rs. 2000 odd which was in deposit in this Court to the credit of Kesho Prasad Singh and his brother Madho Prasad Singh. As Madho Prasad Singh was not a party to the execution proceeding, the executing Court held that the decree-holder was entitled only to attach half the amount. On 9th May 1938 the decree-holder then applied to bring Madho Prasad Singh on to the record of the execution case. This, it will be noticed, was more than 12 years from the date of the dismissal of the appeal by this Court. The application to bring Madho Prasad Singh on to the record of the case was dismissed on the ground that it was a fresh application within the meaning of Section 48, Civil P.C., presented more than 12 years after the date of the decree sought to be executed. The order disallowing the application to bring Madho Prasad Singh on to the record has given rise to Misc. Appeal No. 46 of 1989 at the instance of the decree, holder.
On 27th July 1988 the decree-holder applied to amend his execution petition by adding to it a prayer for the attachment and sale of certain immovable properties belonging to Kesho Prasad Singh. This application was also disallowed on the ground that it was a fresh application made more than 12 years after the date of the decree sought to be executed and was therefore barred by Section 48. This has given rise to Misc. Appeal No. 47 of 1989 at the instance of the decree-holder.
I will deal with the question which arises in respect of Misc. Appeal No. 47 first. There is a decision of this Court, and there are decisions of at least four other High Courts and of the Privy Council, that an application by which it is sought to proceed against properties other than those mentioned in the first execution petition is a fresh application within the meaning of Section 48 and that no such application is entertainable after 12 years from the" date of the decree sought to be executed.
The decision of this Court is Jagannath Das v. Chamu Raghunath AIR 1929 Pat. 407. The decree under execution in that case was a money decree passed on 8th February 1915. After various applications for execution, the last application was made on 14th January 1927, praying for the attachment and sale of certain moveable properties belonging to the judgment-debtor. As no moveable properties belonging to the judgment-debtor were found the decree-holder, on 1st August 1927, made an application to be permitted to proceed against certain immovable properties of which he gave a list. He prayed that the original application for execution might be amended in accordance with the terms of the application of 1st August 1927. It was held that this was a fresh application within the meaning of Section 48 and was not entertainable as it was made more than 12 years from the date of the decree of 18th February 1915.
The decision of the other High Courts will be found in B. Bandhu Singh Vs. K.T. Bank Ltd. , Hayatunessa Chowdhurani Vs. Achia Khatun, , Syamaladoss v. Subbayya AIR 1927 Mad. 347 and Ram Rattan v. Datar kaur AIR 1928 Lah. 808. The Privy Council decision is Maharaja Bahadur Singh v. A.H. Forbes AIR 1929 P.C. 209. Mr. Mullick on behalf of the decree-holder referred to the decision of a single Judge of the Lahore High Court in Jai Chand v. Chiragh Din AIR 1926 Lah. 544. In that case a money decree had been passed on 4th March 1913. The last application for execution was dated 17th March 1924, praying for the arrest of the judgment-debtor.
On 9th November 1925, the Judge of the Small Cause Court who was executing the decree dismissed the petition on the ground that the judgment-debtor had not been arrested and that it was useless in his opinion to take any further proceedings. Against that order of dismissal the decree-holder applied to the Lahore High Court. The learned Judge of the High Court setting aside the order of the Small Cause Court Judge said:
Under all the circumstances the lower Court; should have allowed the decree-holder to exhaust all lawful means of realizing his decree before finally dismissing the application for execution.
As I understand'' the judgment of the learned Judge, what was meant was that the executing Court should not have been hasty to dismiss the pending application for the arrest of the judgment-debtor merely because the decree-holder had not been able to find him but should have allowed the application to remain pending so that the decree-holder would have had a further opportunity of ascertaining the whereabouts of the judgment-debtor.
I would dismiss Misc. Appeal No. 47 with costs.
With regard to Misc. Appeal No. 46, there does not seem to be any difference in principle between an attempt to proceed at a late stage in the execution proceedings against properties which it was not sought to proceed against in the original application and an attempt at a late stage to proceed against a person other than the person against whom it was originally sought to execute the decree Reference was made by Mr. Mullick on behalf of the decree-holder to a decision of the Bombay High Court in Shankar Balchand v. Hira Lal Balchand AIR 1931 Bom. 425. There an application had been presented within time against the judgment-debtor. On the death of the latter, more than 12 years after the date of the decree, it was sought to continue the proceedings against the legal representative of the deceased. It was held that it was not a fresh application within the meaning of Section 48. That case is distinguishable from cases of the kind before us. Here the original judgment-debtor died before the expiry of 12 years from the decree. The decree-holder chose to initiate execution proceedings against Kesho Prasad only. Now he seeks to proceed against Madho Prasad. His present application cannot be viewed as merely ancillary to the original application.
The decision in Sheogobind Ram v. Mt. Kishunbansi Kuer AIR 1932 Pat. 222 is also distinguishable. There, the substantial question was whether an application for amendment of a petition for execution was entertainable. The application was within 12 years from the date of the decree and not, as in the present ease, beyond the period of 12 years. As there appears to be no difference in principle between the application to implead Madho Prasad Singh and the application to proceed against the immovable properties of Kesho Prasad Singh,
I would dismiss also Miscellaneous Appeal No. 46 with costs.
In Miscellaneous Appeal No. 379 of 1938 we have been asked to take steps to protect the appellant-judgment-debtor from the possibility that as a result of the proceedings in the United Provinces under the Encumbered Estates Act, 1934, the decree-holder may succeed in realizing more than he is justly entitled to under the decree for costs. Before us there are no materials indicating that the decree-holder has either realised more than he is entitled to or that he intends to do so. The proceedings in the United Provinces are beyond our jurisdiction and we are not in a position to stay them.
This appeal must also fail and be dismissed with costs.
Rowland J.
As regards Miscellaneous Appeals Nos. 46 and 47, the principles by which the Court should be guided in deciding whether or not to allow an amendment to be made in an execution petition are to be found not so much in the Code itself as in the case law. The Code does not make provision for amendment of applications to execute a decree except for the purpose of removing formal defects by reason of which the application fails to conform to the requirements of Order 21, Rules 11 to 14 and the decree-holder applies to amend the application, under Rule 17. Otherwise there seems to be nothing in the Code itself to warrant an execution proceeding being carried on in a different form from that in which it has started.
There are two classes of cases in which the application of Section 48, Civil P.C., has to be considered; one is where an application to execute a decree is presented which is in form a fresh application and the other is where the executing decree-holder asks to be allowed to amend an application already on the file. In the former case the Court will see whether the apparently fresh application is in substance an application to -continue and carry on proceedings already commenced. Where this is the nature of the application it has been held not to be a fresh application so as to be barred by Section 48 of the Code but to be an application in continuation of the proceedings already commenced so that the decree-holder can lawfully be permitted to proceed with it. In oases where the application is to amend an execution petition, it may be that it is presented on a date on which, had it been a new application, no question of limitation would arise. Where this is so, it seems the practice has been not to inquire whether such an amendment is strictly in accordance with law because even if it is not, no prejudice is caused to either party by allowing it. But where the date on which an application to amend an execution petition is presented is a date on which a fresh application to execute the decree would have been barred by is, 48 then the Courts will apply the same principles as they would in dealing with an application which is in form a fresh application, that is to say, they will consider whether the petition made to the Court is a substantial departure from the original application which would make it impossible to hold that the application was a continuation of the former application.
The decision of the Privy Council in Maharaja Bahadur Singh v. A.H. Forbes AIR 1929 P.C. 209 arose out of a case in which the application before their Lordships was apparently in the form of a fresh application but was sought to be maintained as one made in continuation of an earlier application to execute the decree. Their Lordships thought that there was such substantial departure from the original application of 9th May 1908 as to make it impossible to hold that the application of 2nd December 1922 was a continuation of the application of 9th May 1908.
We are dealing with applications for amendment by which the decree-holder seeks in the one case to execute his decree against a person who was not named in the application as presented to the Court within the period of limitation, in the other case to execute his decree against property which was not specified in the application as originally presented.
I agree that it is impossible to hold that these prayers are prayers in continuation of the application already on the file. Had they been in the form of fresh applications they must fail as being time-barred. That being so, the decree-holder cannot be permitted to amend the application.
For these reasons I fully agree that the appeals are to be dismissed. In Miscellaneous Appeal No. 879 I entirely agree with what has been said and have nothing to add.