JUDGMENT Agarwala, J.
1. This is a decree-holder's second appeal arising out of an execution proceeding. The appellant (sic)tained a decree against one Dharam Das deceaed on 4-1-1944. Dharam Das died on 29-11-1946.
On 3-1-1947, the decree-holder, in ignorance of the death of Dharam Das, filed an application for execution of the decree, and in the column in which the name of the person against whom execution was sought has to be given he mentioned the name of Dharam Das deceased. When he discovered the mistake he made an application that the two sons of Dharam Das be brought on the record and the execution application be amended accordingly. This application was presumably under Order 21 Rule 17, Civil P. C., but was made on 26-3-1947 after the expiry of three years from the date of the decree.
The execution Court dismissed the execution application on the ground that the application for amendment having been made after the expiry of three years from the date of the decree the execution application was barred by time. This order was affirmed by the lower appellate Court and the decree-holder has now come up in appeal to this Court, The appeal was first heard by a learned single Judge of this Court who referred the following question for decision by a Division Bench :
"Where an application for execution is made within limitation against a judgment-debtor who is dead on the date of such application, and an application for amendment of the said application by bringing on record the names of the legal representatives of the deceased is made after the expiry of the period of limitation, can the application for execution be considered to be within limitation?"
2. The provisions of Order 21, Rule 17, as amended by this Court, are as follows :
"17(1) On receiving an application for the execution of a decree as provided by Rule 11, Sub-rule (2), the Court shall ascertain whether such of the requirements of Rules 11 to 14 as may be applicable to the case have been complied with; and, if they have not been complied with and if the decree-holder fails to remedy the defect within a time to be fixed by the Court, the Court may reject the application, or may allow the defect to be remedied then and there or within a time to be fixed by it.
(2) Where an application is amended under the provisions of Sub-rule (1), it shall be deemed to have been an application in accordance with law and presented on the date when it was first presented."
Sub-rule (1) of this rule makes it a duty of the Court to ascertain whether the application for execution is in accordance with the requirements of Rules 11 to 14 of Order 21, and, if these rules have not been complied with, the Court has to ask the decree-holder to remove the defect within a time to be fixed by the Court, and if the defect is not removed the application has to be rejected; but if the defect is removed then under Sub-rule (2) the application shall be deemed to have been in accordance with law and presented, not on the date on which the application for amendment was made, or on the date on which the defect is cured, but on the date on which the execution application was first presented.
3. In the present case the execution application mentioned the name of the deceased judgment-debtor as the person against whom execution was sought. This was certainly not in accordance with the requirements of Rule 11. Clause (i) of Sub-rule (2) of Rule 11 is as follows :
"the name of the person against whom execution of the decree is sought;".
If the decree-holder mentions the name of a person who is no longer alive he is not mentioning the name of the person against whom the execu tion can at all be issued and, therefore, he is not fulfilling the requirements of Clause (i). That clause assumes that the name of the person against whom execution can at all issue shall be mentioned; To mention the name of a deceased person is not carrying out the requirements of that clause.
It is for this reason that it has been held by this Court that an application for execution in which the name of the deceased judgment-debtor is mentioned as the person against whom execution is sought is not in accordance with law: vide -- 'Mt. Ramkali v. Birbhadraman Tewari', 1934 All 463 (AIR V 21) (A). When an application is made by the decree-holder for curing the defect and putting in th'e names of the heirs of the deceased judgment-debtor the Court has jurisdiction to allow such an application under Order 21, Rule 17, and if it is allowed then under Sub-rule (2) of that rule the application for execution shall be deemed to be in accordance with law and presented on the date when it was originally presented.
The execution application in the present case was originally presented within the period of three years from the date of the decree, and if the amendment application made by the decree-holder on 26-3-1947, were allowed his application for execution would be deemed to have been presented on 3-1-1947 when the original defective application was actually presented.
This view is supported by a decision of the Patna High Court in -- 'Pratap Udai Nath v. Baraik Lal Sahi', 1947 Pat 129 (AIR V 34) (B).
4. Learned counsel for the judgment-debtor relied on the Allahabad decision in 'Mt. Ramkali v. Birbhadraman Tewari (A)', cited above. In that case, as we have already pointed out, it was held that an application for execution made against a dead person was not an application in accordance with law, and it was also held that it was not a step-in-aid in execution. In that case there was however no question of amending the application under Order 21, Rule 17 and the provisions of that rule were not considered.
5. Our answer to the question referred to us is that where an application for execution is made within limitation against a judgment-debtor who is dead on the date of such application, and an application for amendment of the said application by bringing on record the names of the legal representatives of the deceased is made after the expiry of the period of limitation and the application for amendment is allowed the application for execution shall be considered to be within limitation.
If the application for amendment is not allowed then obviously the original execution application being defective it cannot be proceeded with and any fresh application would be beyond the period of limitation and the execution proceedings will have to be struck off.
6. Let the record be placed before the learned single Judge with our answer.
[After the reference was answered by the Division Bench the appeal was finally disposed of by Beg J., on 3-2-1956.] Judgment
7. This is a second appeal arising out of execution proceedings.
8. It appears that the appellant decree-holder made an application for execution against one Dharam Das, a judgment-debtor on 3-1-1947. Dharam Das had died on 29-11-1946. Subsequently, however, the decree-holder realising the mistake made another application on 26-3-1947 for the amendment of the execution application by substituting the heirs of Dharam Das in his place.
9.. Both the Courts below held the execution application to be time-barred on the ground that the judgment-debtor Dharam Das having been dead at the time, the execution application must be treated to be a nullity.
10. The case came up before me for hearing as a single Judge. I referred the following question to a Bench:
"Where an application for execution is made within limitation against a judgment-debtor who is dead on the date of such application, and an application for amendment of the said applica tion by bringing on record the names of the legal representatives of the deceased is made after the expiry of the period of limitation, can the appli cation for execution be considered to be within limitation?"
The answer of the Bench to the above question has now been received. It is to the following effect:
"Where an application for execution is made within limitation against a judgment-debtor who is dead on the date of such application, and an application for amendment of the said application by bringing on record the names of the legal representatives of the deceased is made after the expiry of the period of limitation and the application for amendment is allowed the application for execution shall be considered to be within limitation. If the application for amendment is not allowed then obviously the original execution application being defective it cannot be proceeded with and any fresh application would be beyond the period of limitation and the execution proceedings will have to be struck off".
11. In view of the above answer given by the Bench to the question referred to it, this second appeal will have to be allowed and the question to be considered in the case is whether the amendment application should be allowed. The execution Court did not consider the matter at all as it was of opinion that the execution proceedings were a nullity.
As this opinion is found to be erroneous, the execution Court should now apply its mind to the question as to whether the application of the decree-holder of 26-3-1947 for the amendment of the execution application by bringing on record the legal representatives of the deceased judgment-debtor should have been allowed.
If the Court comes to the conclusion that this application should be allowed, then the execution application would not be time-barred in view of the answer given by the Bench to the question referred to it.
12. Under the above circumstances, I allow this appeal and remand this case to the execution Court for disposal of the execution application in the light of the observations made by me. The parties will be at liberty to take objection and to adduce such evidence as they deem necessary in respect of this matter. The costs shall be on parties throughout.