Narayanan Damodaran Narriboodiri vs Kuriathu Yohannan

Koshi, C.J.—The decree-holder in u/s 70 of 1104, on the file of the District Munsiff''s Court, has brought this second appeal against the concurrent decisions of the District Munsiff and the Additional District Judge of Parur that his prayer to proclaim and sell certain items of immovable properties belonging to the judgment-debtors, attached by tire court pursuant to a supplementary list filed on 20-11-1951 (4-4-1127), in relation to a pending execution application, was hit by the twelve years'' rule enacled by Section 48, CPC and therefore Inadmissible. The decree'' under execution is one passed on 24-5-1109. It is a registered decree and it gave two months'', time to the judgment-debtors to satisfy the amounts decreed thereunder. After two abortive execution applications made in the ''case,'' one on 25-11-1115 and the other on 10-2-1117, the "decree-holder filed a third one on 14-4-1121.

The present second appeal has arisen out of proceedings claimed to be pursuant to the -said third application. Under it the decree-holder sought execution personally against judgment-debtor No. 2 and such of the moveable and immovable properties of judgment-debtors 1 and 2 as are mentioned in the lists to be submitted thereafter. The application was duly registered and after issuing notices as required by Order 21 Rule 22, CPC Code, on 23-6-1121, the court, among other directions, asked the decree-holder to produce the schedule of properties to be attached. On 10-7-1121 the decree-holder filed the schedule seeking to attach Sy. 476/8 alleged to belong to judgment-debtor No. 2 hereinafter referred to as the judgment-debtor).

On the property being attached, the judgment-debtor raised objections to the execution on the ground that as the schedule was filed more than 12 years after the date fixed in the decree for payment of the debt execution was barred u/s 48, CPC Code. The execution court over-ruled the objection and the District Court in A.S. 22 of 1122 and the High Court in S. A. 556 of 1123 up- , held the order of the execution court. The High , Court held that although the execution application: was not accompanied by a schedule of the property to be attached and notwithstanding that defect, the '' execution court had admitted and registered the application and later allowed the decree-holder to cure the defect, the contention that the execution was barred by the twelve years'' rule was unsustainable. When the records went back to the execution court after the disposal of the second appeal, that court directed the decree-holder to file a fresh execution application (vide order dated 28-1.1,1.124), It would appear (hat besides the plea of limitation the judgment-debtor had raised a question regarding the claim for interest made in the execution application and with respect to it the second appeal succeeded.

It was with a view to have an application conforming to that decision that the execution court directed the decree-holder to file a new application. On such amended execution application being filed on the date fixed for it, namely, 20-12-1124, the earlier one was ''struck off'' of the self-saino date.

Thereafter execution proceeded against the property under attachment and when it came up for salo OB '' 26-10-1950 (9-3-1126) the judgment-debtor applied for adjournment of the salo and paid Rs. 50/- towards the decree-debt (vide C. M. P. 1395 and tho order thereon). Tho property came up for sale on two further occasions, namely, 27-11-1950 (12-4-112 and 4-12-1950 (19-4-1126) and on both those occasions the judgment-debtor, applied for adjournment paying as before Rs. 50/- each time (vide C. M. P. Nos. 15778 and 16227 and the orders thereon). Before the property came up for sale for the fourth time 14-12-1950 (29-4-1126) the judgment-debtor''s wife preferred a claim stating that the property belonged to her and not to her husband. This was on 11-12-1950 (26-4-1126) and on 27-12-10.50 (12-5-1126) the court passed orders allowing the claim.

The execution application was adjourned for ''further steps'' to 9-11-1951 (23-3-1127; and that date, on the decree-holder''s application it with in further adjourned to 20-11-1951 (4-4-1127). On the said date the decree-holder produced a fresh schedule of properties to be attached and proceeded, against in execution. The schedule mentioned three items of properties and those properties were duly'' attached.'' The judgment-debtor again raised objections to the execution on the ground that it was barred by the twelve years'' rule. This time he �succeeded as the execution court held (order dated " 1412-1952 (29-4-1128)), that though not in form, the application to proceed against new items of properties was a fresh application within the, meaning of Section 48, CPC Code. On appeal by the decree-holder the learned Additional District Judge of Parur upheld that order by its decision in A.S. 91 of 1952, dated 8-2-1954. Hence this second appeal.

When the second appeal came up for hearing before a learned Single Judge, it was brought to his notice that the question of law arising for decision here, whether an application to permit execution against properties mentioned for the first time in a list filed twelve years after the decree should be treated as a ''fresh application'' or only as a continuation or an amendment of a pending execution petition filed within 12 years from the date of decree was die subject of a reference to a Full Bench in A.S. 464 of 1952. This was also therefore referred to a Full Bench for decision. There were then two odder references to the Full Bench pending in which the same question arose for determination. These were in A.S. 260 of 1955 and S. A. 806 of 1953. This Full Bench heard all die four cases. It was however found that A.S. 454 of 1952 must fail as it was not properly constituted as to parties and that in A.S. 260 of 1955 it was unnecessary to consider the point as there was in (hat case a ''subsequent order'' within (he meaning of Section 48(1)(b), CPC Code. These appeals were therefore, disposed of accordingly. We have chosen to dispose of this and the other remaining case namely, S. A. 806 of 1953 by separate judgments.

Mr. T.S. Krishnamoorthy Iyer, learned Counsel for the decree-holder-Appellant, urged before us two grounds in support of die appeal. The first one was that the application of 20-11-1951 (4-4-1127) to attach and sell new items should be treated as one to amend and continue the application of 14-4-1121, or rather die one filed in substitution thereof on 20-12-1124 and not as a ''fresh application for execution within the meaning of Section 48 Sub-section (1). The other was that the circumstances of the case warranted the application of the provisions in Sub-section (2) of Section 41 of the Travancore CPC (nonexpanding to Sub-section (2) (a) of Section 48 of the present Code) to enlarge the period of 12 years fixed by Sub-section (1).

The question as to the powers of the execution court to amend an execution petition after it has been admitted and registered has gathered round it a volume of conflicting case-law. Order 21, Rule 15 (1), of the Travancore CPC Code, 1100 (corresponding to Rule 17 of the present Code) enjoined that ''''On receiving an application for -J | the execution of a decree as provided by Rule 9, sub-rule {2) (present Rule 11, Sub-rule (2) the court shall ascertain whether such of the requirements of Rules 9 to 12 (present Rules 11 to 14) as may be applicable to the case have been complied withy and, if they have not been complied with, the court shall allow the defect to be remedied then audi there or within a time to he fixed by it. If the defect is not remedied within the time fixed, the court may reject the application;'' Sub-rule (2) of Rule 15 provides that "whether an application is amended under the provisions of Sub-rule (1) it shah be deemedy to have been an application in accordance widi law and presented on the date when it was first presented".

In this case the execution application of 14-4-1121 was, as stated earlier, defective inasmuch as no list of the property to be attached accompanied the, same. After it was admitted and registered the court, however, by its order dated 23-6.1121 called upon the decree-holder to cure the defect and that was done on 10-7-1121. The judgment-debtor''9 objection that execution against the property mentioned in die list so furnished was hit by the twelve years'' rule was, as already noticed, repelled by all the three courts that had to deal with the matter.. The execution against the property mentioned in the list proceeded thereafter and it was when that property was found to be not available when the claim preferred by the wife of the judgment-debtor was allowed diat a second list of properties was filed and execution sought against the properties mentioned therein. Mr. Krishnamoorthy Iyer contended that, by allowing die defect with respect to the execution application being cured by the production of one list did not exhaust the court''s powers to sanction amendments and that as the new list was produced while execution pursuant to that application was pending, it was competent for the court: to allow further amendments asked for. This argument was raised before the execution court it-self and that court repelled it on the basis of the decision reported in Karunakara Panikkar v. Kochun-ni 1942 57 Ker LR 877 (FB) (A). The appellate court-referred to diis and other cases and affirmed the order of the execution court. In 57 Ker LR 877 (FB) (A) during the pendency of an execution application filed within time, after the expiration of twelve years from the passing of the decree, the decree-holder sought to attach and sell certain new" items stating that die decree debt could not be realised from the properties originally attached. The execution court allowed the prayer purporting to act under Order 21 Rule 15 (2) quoted above, but the Full Bench reversed the decision holding that to substitute new properties against which execution was sought cannot be described as an amendment of the particulars in the execution petition and that the subsequent application for execution against properties different from those first sought to be taken in execution is a fresh application and not an amendment of die earlier application and that it Would be barred when it was filed out of time.

Nokes, J. who delivered the judgment of the Full Bench pointed out that what the court could allow by way of amendment under Rule 15 was to cure ii defective application and that once that has been done, the decisions of the Travancore High Court did not go further to permit acceptance of any new list that may be filed beyond time even though the application filed in time happens to bo-then pending.. The learned Judge''s view as to the-extent Travancore case law permitted amendment of an execution application appears to us to be plainly right. The earlier cases cited before us namely, Bhagavathy Nachi v. Aratha "Lekshmi 24 Ker LJ 939 (B) and Ghummaru Uthuppu v. Kuria-kose Chacko 27 Ker LJ 990 (C) only allowed the initial direct of the absence of particulars of properties to bo proceeded against to be cured by accepting a list of properties even though that was produced beyond 12 years of the passing of the decree. The later Travancore case cited at the bar- Ouseph v. Kochukrishna Pillai 1946 Ker LR 277 (D)only reaffirmed the rule of the earlier cases though there no question u/s 48, CPC arose, but only one under Article 165 Clause 5 of the Travancore Limitation Act Article 182 Clause 5 of the Indian Limitation Act).

The basis of the court''s power to permit an amendment of the execution petition by accepting a list out of time has been set out in a decision of this Court reported in Edward Fernandez v. Walter Fernandez 1950 Ker C. L. R. 279 (E) as that that after accepting and registering a defective application, to tell the decree-holder at a later stage that the defects cannot be cured as 12 years had expired after the decree was passed, would be to make the decree-holder suffer for the mistake of the court. The decision in Vemuri Pitchayya Vs. Ankineedu Bahadur Zemindar Garu, , Sekhara Mannadiyar v. Subramania Mathaliar 32 Ker LR 536(G) and the Travancore decision last cited have been referred to as authorities for the proposition enunciated there. Order 21, Rule 15 (now Rule 17) threw a duty on the court establishment to check an execution application on its presentation to the court to find out whether the application complied with all the requirements of a proper execution application and if the court omitted to do that duty, it cannot afterwards turn round and tell the decree-holder that his application must fail for non-compliance with the provision of the law as to the proper form and contents of a proper execution application. What the court failed to do at the initial stage, namely, to ask the decree-holder to cure the defect before registering the application, it must permit the decree-holder to do when he asked for it afterwards, regardless of the time element. For amending or curing the defect, the) application must, of course, be pending.

Except for one decision in Cochin, the Cochin case-law also did not permit amendments of the kind now asked for. The decision in 32 Cochin L. R. 536 (G) and the earlier decision which it followed, namely, Tachudaya Kaimal v. Scetha-kutty Amma 28 Ker L. R. 791 (II) were cases where amendments were allowed even beyond 12 years of the passing of the decree'' for the reason mentioned in 1950 Ker L. R. 279 (E), referred to above. The Cochin case which went beyond the rule enunciated in the earlier cases is reported in Iravi Damodaran Nambooripad v. Narayanan Nam-booripad 33 Ker L. R. 84 (I). There a decree was not satisfied by sale of certain properties. A fresh schedule of properties to be put up for sale was filed after 12 years from the date of the decree.

The contention that further proceedings in execution were barred u/s 42. CPC of Cochin (now Section 48) was repelled, by stating that the filing of a fresh schedule did knife amount to a fresh application for execution and since the original execution petition was kept pending, there was no bar of limitation. The decision purports to follow 22 Cochin L. R. 536 (G) but as stated just now that case lenfr no, support to the view taken there. Indeed there was there an unwarranted extension of the rule of the earlier cases and the Cochin High Court had itself occasion to point this out in the decisions reported in Kuriakutty v. Aypu Asan, 40 Ker L. R. 462 (J) and Govindan Nayar v. Lekshmi Amma 40 Ker L. R. 546 (K). If the decision in 33 Ker L. R. 84 (I) represents good law the appeal must certainly succeed. We do not however consider that decision as laying down correct law. Apart from what we have already said the sequel will show that amo"dments of the kind asked for in this case cannot be permitted.

Besides the decision in 1950 Tray-C L. R. 279 (E) tlie decisions of this Court relevant to the point are those reported in Krishna Kammathy v. Kunjan Pillai AIR 1951 Ker 184 (L) and Muha-mathu Kunju v. Muhammathu Kunju AIR 1952 Ker 23: 1951 Ker L. T. 453 (M). In the former case it was held that where an execution petition was filed giving a list of properties and praying for attachment and appropriate relief, a subsequent application giving a fresh list of properties against which die decree was sought to be executed, was a fresh application and not a continuation of the earlier application. The judgment does not give all the relevant facts and on our looking into the original records available in this Court, it is seen that the decree in diat case was passed on 13-3-1107, that the last execution application, together with a list of properties for attachment, was filed on 13-3-1119 and that fresh items of properties were sought to be attached on 6-6-1123. The dates mentioned show that the last application was filed on the day the 12 years'' period was expiring and that the further application for attachment came long afterwards.- That case is exactly on all fours with the present case and accords with the view taken in 1942 57 Ker L. R. 877 (FB) (A).

In the next case AIR 1952 Ker 23 (M), the actual decision turned on other grounds, but after referring to the Madras decisions in Jhorama Vs. Viswasarayi Latchanna Dora, and Sri Raja D.K. Venkata Lingama Nayanim Bahadur Varu (since deceased) and Another Vs. Rajah Inuganti Rajagopala Venkata Narasimha Rayanim Bahadur Varu and Others, , while recognising a power in courts to amend an execution application even after the expiry of 12 years the decision stated that it was a discretion to be exercised very carefully and very sparingly. As the two Madras decisions mentioned there will have to be referred to in greater detail later on, it is unnecessary to set out here the circumstances under which the said power can be exercised.

Suffice it to say now that the balance of judicial opinion is in favour of the view that the nonavailability or the inadequacy of the properties originally sought to be proceeded against will not justify a Court to amend or add to a list of properties furnished in time by one furnished out of time.

Before referring to the said Madras case it is helpful here to refer to a decision of Sulaiman and Young, JJ. as they then were, reported in B. Bandhu Singh Vs. K.T. Bank Ltd. . The first part of the head-note which correctly sets out the purport of the decision as to the scope of Section 48, CPC Code, may usefully be quoted here:

Where a decree-holder applies after the expiration of 12 years from the date of the decree for the attachment and sale of property not mentioned in any of the previous applications for execution, the application is a fresh application within Section 48 and cannot be entertained. Mere fact that the execution proceedings started by the previous application are still pending and have not been struck off would not be sufficient to save limitation; Ram Ratan v. Datar Kuar AIR 1928 Lah 808 (Q); Sultan Hasan Mirza Vs. Srimati Nanki Bibi, ; and Krishna Dayal Gir v. Mt. Sakina Bibi, 34 Ind Cas 27 : AIR 1917 Pat 485) (S), Relied on.

We do not consider it necessary to set out the facts of the Allahabad case or of the three cases the learned Judges in that case relied upon for their decision, but shall only add that in all the four cases the attempts made by the decree-holders to proceed against fresh items of properties twelve years after the passing of the decree, even though the execution applications happened to be pending, were repelled on the ground that in substance the applications to proceed against properties which were not included in any of the former applications were fresh applications for execution.

The pride of place, however, among decisions bearing on the true construction of Section 48, CPC Code, must, if we may say so with respect, go to the decision in Sri Raja D.K. Venkata Lingama Nayanim Bahadur Varu (since deceased) and Another Vs. Rajah Inuganti Rajagopala Venkata Narasimha Rayanim Bahadur Varu and Others, , where PatanjaliJastri, J., as he then was, (Bell, J., concurring) has contributed an illuminating discussion on the true scope and meaning of the section. There, a decree for a large sum of money claimed as arrears of maintenance due to a junior member of the family of the Rajah of Kalahasti, was passed charging not less than 400 villages comprised in the Kalahasti zamindari and the question for decision was whether, an application for execution against some of "the villages made after 12 years of the passing of the decree can be treated as one in continuation of an earlier application filed within time, when the villages, mentioned in the last application were never therefore sought to be proceeded against in execution of the said decree.

The villages mentioned in the last application filed within time had all been sold, but the petition not having been closed was still on the file of the court, although nothing more remained to be done there under when the subsequent application out of which the appeal arose was filed. In discussing the question whether the latter application should or should not be regarded as ''fresh application for execution'' within the meaning of Section 48, subjection (1), the learned Judge said:

Though the Code of CPC speaks of an "application for execution" it does not contemplate an application for execution being made in general terms and kept pending till the decree amount is fully realised. Section 51 and Order 21, Rule 11(2)(j) show that an application for execution is an application to take one or more of the steps specified therein in execution of a decree. And Rules 12, 14 and 17 further make it clear that those steps should be required to be taken in respect of some specified property or properties. Thus an application for execution is an application for attachment and sale of certain property or for the arrest and detention in prison of the judgment-debtor or for taking some other steps in execution of a decree.

The Code contemplates successive applications being made to the Court to execute the decree by taking one or more of such steps and the court is bound to assist the decree-holder in die mode required by him subject to the exercise of its discretion as to simultaneous execution against the person and property of the judgment-debtor under R. 21, provided of course that the application is not barred by any provision of law. It seems to me that under such a scheme, every application requiring the Court to proceed against a particular property is a substantive application for execution, and an application for attachment and sale or for sale without attachment of property B where a previous similar application in respect of property A has succeeded or failed or is still pending is a fresh application'' for execution and cannot be treated as one for amending and continuing the prior application, although the prayer in the later application may be worded in that manner.

Where 40 question of limitation arises it is of course, immaterial how the subsequent application is regarded, but when it is made beyond the period of limitation, its real character assumes importance and must be determined, paying more regard to the substance of the matter than to the form or the words used. Applying these principles to the facts of the present case, we find it difficult to hold that E. A. No. 379 of 1939 (application out of which the appeal arose) was not a fresh application for execution. The above reasoning applies ''a fortiori'' here, for it cannot even be said that the previous execution proceeding, E. P. No. 20 of 1930, was really pending when that application was filed.

As has been stated, although it had not been formally terminated, all the villages which the Respondent then required to be sold had been sold, and no further relief could be granted on the basis of that petition which must therefore be regarded as no longer pending for the purpose of including by way pi amendment new properties sought to be sold for realising the balance of the decree amount of, Badrinarayan Chetlingia Vs. Baidya Nath Pal and Others, .

Two decisions of the Calcutta High Court relied upon before us by the Appellant''s learned Counsel, namely Gnanendra ''Kumar Rai v. Shyama Sunder Jen AIR 1918 Cal 73 (U) and Shekendarali Meah Vs. Abdul Gafur Choudhury and Others, , are referred to by Patanjali Sastri, J. in the paragraph succeeding the one we have quoted above and as we are in respectful agreement with the views expressed there we will quote here that paragraph as well.

"Reliance was relaced for the Respondent on a recent decision of the Calcutta High Court in Shekendarali Meah Vs. Abdul Gafur Choudhury and Others, , where the Court held that an application for permission to proceed against fresh properties when it was discovered that those mentioned in the earlier execution petition were not attachable was not a fresh application for execution but only a matter of amendment of the previous petition and that the Court had a reasonable discretion in allowing it provided the amendment did not alter the character of the execution. The learned Judges followed 22 Cal WN 540 : AIR 1918 Cal 73) (U) which however dealt with the execution of a recent decree governed by the special provisions of limitation contained in Sch. 3 annexed to the Bengal Tenancy Act. They distinguished Haye tunessaiv, Hayatunessa Chowdhurani Vs. Achia Khatun, , where the Court refused to accept an application filed beyond 12 years from the date of the decree for adding fresh properties to the list given in an application filed within 12 years, as possibly proceeding on the decree-holder''s want of care and diligence. No reference was made to Sultan Hasan Mirza Vs. Srimati Nanki Bibi, where an application for "continuing" a prior execution petition by attaching certain now properties was refused as barred by Section 48. It may well be that as laid down in B. Bandhu Singh Vs. K.T. Bank Ltd. , on which also the learned Judges relied, the Court had ample powers of allowing amendment of execution petitions apart from remedying formal defects under Order 21, Rule 17, but with all respect, we are unable to agree that a decree-holder can be allowed to amend a previous execution petition by including fresh pro- pert moro than 12 years after the date of the decree.

For the reasons we have indicated, such an application would be a fresh application for execution within the meaning of Section 48, Sub-section (1) and accordingly barred under the provisions of that section. A similar view has been expressed in B. Bandhu Singh Vs. K.T. Bank Ltd. and Gajanand Sha and Others Vs. Dayanand Thakur, .

In continuing the discussion and after referring to two earlier decisions of the Madras High Court in each of which the Court refused to treat an application filed by the decree-holder more than 12 years after the decree to proceed against fresh properties of the judgment-debtor as an application to amend and continue an earlier application for execution filed within time and which contained observations which would seem to imply that the Court might in special circumstances allow such amendment and order execution against new properties even after the expiry of the period, the learned! Judge said:

With all respect, we are not satisfied that the observation referred to above, which must be regarded as ''obiter'', correctly states the position. If an application to proceed against fresh properties, of the judgment-debtor is to be regarded, as in our opinion it should be, as a fresh application for execution it is difficult to see how the Court can have a discretionary power of allowing the decree-holder to proceed against new items of properties after the expiry of 12 years by way of amending a previous petition for execution filed within that period, for to do so would plainly contravene the provisions of Section 48, Sub-section (1). Sub-section (2) amply safeguards the decree-holder''s right to execute the decree even after tire expiry of 12 years in certain cases, and the Court should not, as it seems to us, allow him in other cases to evade the provisions of the section under colour of amending a previous application so as to include fresh properties which he may wish to proceed against after the expiry of such period.

We find nothing opposed to this view in Jhorama Vs. Viswasarayi Latchanna Dora, , to which also our attention was called. The decree-holder in that case did not seek to add fresh items of property who those included in his previous application for execution but only to add a prayer for attachment of some of those items which, having been released'' from attachment as unenfranchised service inams not liable to attachment had since been enfranchised and v| thus become liable to be attached. The previous, application which was fifed during the subsistence-'' of the prior attachment had asked for the sale of-those properties, and all nugatory" and Sub-section 2 (a) of the section otiose. Of the two cases relied upon there we have already made our comments about AIR 1918 Cal. 73 (U) and stated that the case has nothing to do with the twelve years'' rule. The other case followed is Nourangilal Marwari Vs. Sm. Charubala Dasi and Others, . That case referred to the general jurisdiction of the courts to allow amendments of an execution application independently of Order 21, Rule 17 and the amendment sought for in the case was the correction of a statement that the decree-holder had become entitled by succession by substituting the statement that he had become entitled by survivorship, the object being to show that no succession certificate would be-necessary under law.

Sir George Claus Rankin, C. J. who delivered the leading judgment in that case stated that the amendment had nothing to do with the formalities of Rules 11 to 14 of Order 21, Code of Civil Procedure. We fail to see how the general observations contained there as to Court''s inherent powers to amend a proceeding before it could have helped the decree-holder in the later Calcutta case. The earlier case had nothing to do with the amendments of tire kind contemplated by Order 21, Rule 17 after the period prescribed for execution of a decree had expired. In this context it is instructive to refer to the decision in Mahomedbhai Samsuddin Jivaji Raja Vohra Vs. M.A. Dawoodbhai and Co., and to certain observations Beaumont C. J. made in that case. It was held there that:

Under Order 21 Rule 17, the court or its officer must ascertain that an execution application complies with all the necessary requirements. It is however open to tire Court at any time to allow an amendment in a proper case, in order to cure any defect in .such petition for execution. Even apart from this power under R. 17, the Court can in its general powers allow such amendment.

Where in an application for execution by attachment of property, the particulars'' of the property to be sold were not mentioned:

Held that the Court could allow amendment.

Regarding the court''s general powers of amendment the learned Chief Justice said:

Even if I had thought that he (Judge on the original side) had no power to make the amendment under Rule 17, I should have said in this particular case that he was right to allow the amendment under the general jurisdiction of the Court to allow amendments, because the application did not seek execution against a particular property which subsequently proved not to be subject to execution, the applicant therefore being compelled to ask for leave to execute against another property after limitation had run. The application here did not specify any property; it merely referred; generally to attachment of property. It must, from the nature of the case have referred to the Defendants'' immov-asjfe property. The amendment therefore only giving particulars of that which was dealt . with in general terms by the application.

The above extract shows when an amendment under Order 21, Rule 17, can be made after an execution application is admitted and registered and also shows that apart from such powers the court has no general power of amendment when a question of limitation is involved. To use the language of Lord Hob house in Malkerjun v. Narahari I. L. R. 25 Bom 337 (PC) (Zl) at p. 349 to permit an amendment after the period of limitation has expired would be to give leave to institute a new proceeding with the date of an earlier one.

To sum up, where a defective execution application has been admitted and registered without the Court exercising its powers of rejection in limine or without getting the defects remedied, courts have held that the decree-holder cannot be told after 12 years of the passing of the decree that the defect cannot be cured. To do so, would be to make a litigant suffer for a mistake, an act of omission on the part of the Court with respect to a duty imposed upon it by law. When a court by its own conduct has lulled a party into a sense of false security, it ought not to refuse that party a reasonable opportunity to recover from the false position in which he has been placed. Again, where a decree-holder wanted to proceed against a certain property, but the court'' could not allow that on account of some legal impediments, if and when those impediments are removed the court will allow him to proceed against that property even after 12 years of the passing of the decree if the execution is not otherwise barred - see Jhorama Vs. Viswasarayi Latchanna Dora, . In these cases no fresh property was sought to be introduced. Either of the said contingencies has not arisen in the case now and in our opinion the decisions of the two lower courts are correct and this second appeal must fail. The first contingency arose in the case on an earlier occasion and as stated already the decree-holder got the full benefit of the situation when all the three courts negatived the judgment-debtor''s contention as to limitation.

Mr. Krishnamoorthy Iyer, however, invited our attention to what he called the special features of the case and urged that the amendment should have been allowed by the lower courts. Really speaking there are no special circumstances except some misleading conduct on the part of judgment-debtor which can more appropriately be dealt with under the second ground on which counsel wanted to support the appeal. The first two execution applications happened to be dismissed in the routine fashion for non-prosecution and in the third one (or the one filed to substitute it), which has been hanging fire for several years now, it cannot be said that the judgment-debtor raised any unreasonably untenable contention.

Even if he had, no circumstance unless it fell under Sub-Section 2 (a) of Section 48 or a mistake of the court, either of omission or commission, would entitle a court to allow an execution petition to be amended by inclusion of fresh properties mentioned for the first time after twelve years of the decree or the date fixed for payment thereunder. Reference may here be made to some of the cases already cited which emphasize this aspect - see B. Bandhu Singh Vs. K.T. Bank Ltd. and Sri Raja D.K. Venkata Lingama Nayanim Bahadur Varu (since deceased) and Another Vs. Rajah Inuganti Rajagopala Venkata Narasimha Rayanim Bahadur Varu and Others, .

(16) We shall now deal with the second ground urged in support of the appeal, namely, that the case came within Sub-section (2) of Section 41 (now Section 48 (2) (a)). The provision reads:

(2) Nothing in this section shall be deemed to preclude the court from ordering the execution of a decree upon an application presented after the said term of twelve years, where the judgment-that the decree-holder subsequently required was that they should be re-attach- -ed before they were brought to sale as the previous-'' attachment had been set aside.

This decision of the Madras High Court was as mentioned earlier referred to in the decision of this Court in AIR 1952 Trav Co. 23 (M) and in the decision of the Cochin High Court reported in 40 Cochin LR 462 (J), referred to .earlier. The lower appellate Court has cited and followed it in its judgment. .

The foregoing discussion and the authorities cited .will, show that the balance of judicial ion is decidedly in favour of the view that a decree- holder cannot be permitted to seek execution against fresh properties after the expiry of 12 years from the date of the passing of the decree, even though when such an attempt is made an earlier application filed within time happens to be then pending. What a decree-holder cannot do by means of an in Dependant application he cannot be allowed to do under the guise of amendment of the pending application.

To the comments Patanjali Sastri J., madder about the decision in AIR 1918 Cal 73 (U), we desire to add that in that case no question of the twelve-'' years'' rule arose for decision inasmuch as the amendment was sought with respect to an execution application filed within 3 years of the passing of the, decree and the application for amendment was filed"1 within two months of the execution petition. The , occasion for the decree-holder to seek an amendment arose as on the judgment-debtor''s objection it was discovered that against the properties specified in the list furnished with the execution application proceedings could not bo taken.

Judged by the normal rule of limitation under Article 182 of the Limitation Act, there was nodiing . which prevented the decree-holder from making a fresh application on the date- ho filed the amendment petition. As observed by Patanjali Sastri, J., Sri Raja D.K. Venkata Lingama Nayanim Bahadur Varu (since deceased) and Another Vs. Rajah Inuganti Rajagopala Venkata Narasimha Rayanim Bahadur Varu and Others, , when no question of limitation arises it is immaterial how the subsequent of application is regarded, whether as a fresh application or as one to amend and continue but its real character assumes importance when it happens to be made beyond the period of limitation.

Judged by the normal rule of limitation under.

The other Calcutta decision depended upon by the Appellant''s counsel Shekendarali Meah Vs. Abdul Gafur Choudhury and Others, , has also been commented upon in die decision in Sri Raja D.K. Venkata Lingama Nayanim Bahadur Varu (since deceased) and Another Vs. Rajah Inuganti Rajagopala Venkata Narasimha Rayanim Bahadur Varu and Others, . The Calcutta decision definitely supports Mr. Krishnamoorthy Iyer''s contention and holds that where an execution application is made in accordance with law and on objection by the judgment-debtor it is discovered that execution could1 not proceed against the attached properties it is open to the decree-holder to file a further and supplementary petition asking the court to proceed'' against the properties specified therein and that the Court would then be only exercising a reasonably discretion in accepting the supplementary petition. -We venture to observe that this will be making twelve years'' rule in Sub-section (1) of Section ,4 Sfdebtor has, by fraud or force, prevented the execution of the decree at some time within twelve years immediately before the date of the application''''.

The basis for the argument was that in each of the three petitions the judgment-debtor filed for adjournment of sale he had agreed to the adjourned sale being held without a fresh proclamation and without "a sale being conducted on the spot and also stated that the value of property would exceed by far the decree debt, thereby inducinga belief in the decree-holder that he, the Petitioner, was the owner of the property. It was urged that subsequent events, namely, claim by the wife to the property then under attachment and the order of tire court allowing it showed that the statements in the adjournment applications were really fraudulent and made with a view to mislead the decree-holder, but as rightly pointed out by the lower appellate court the first of these representations was made on 20-2-1126 (6-10-1950) when more than 16 years had passed after tire date fixed for payment under the decree. Had any wilful suppression or misrepresentation by the judgment-debtor been made within 12 years of the terminus a quo to lull the decree-holder into a sense of false security it would then have been a matter for consideration whether the case fell under Sub-Section 2 (a) of Section 48, but not when the alleged misrepresentation had not and could not have Jail the effect of preventing execution for any tisrsa within twelve years immediately before the date of the application to substitute new properties in place of the one released from attachment. To repeat what we said earlier all the alleged misrepresentation came long after twelve years from the date fixed in the decree for payment. The second ground urged in the appeal is also therefore of no avail to the decree-holder.

Before concluding it has to be stated that the question whether execution against the person of the judgment-debtor was barred by the twelve years'' rule was not agitated before the two lower courts or before us in second appeal. The execution application dated 14-4-1121 expressly prayed for realisation of the decree-debt by arrest and detention of the judgment-debtor in civil prison and some steps in that behalf would also seem to have been taken. However that was not pursued afterwards. How far the substituted application of 20-12-1124 kept the decree alive regarding that relief or whether that relief stood impliedly abandoned by it is a matter which the execution court will have to decide if and when the question is mooted before it. We leave the mailer open.

The second appeal fails in the result and we dismiss it, but without costs.