ASA RAM Vs. BABU RAM

JUDGEMENT

(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 :

(2.) The provisions of Order 21, Rule 17, as amended by this Court, are as follows :

(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).