DEBI BAKHSH Vs. SHAMBHU DIAL

JUDGEMENT

(1.) This is a judgment-debtor's appeal arising out of an execution proceeding. A curious point of law arises in this case owing to a mistake made by the Court of first instance when passing the decree.

(2.) The suit was instituted against three persons whose names were mentioned in the plaint in a certain order. The learned Munsif, when writing his judgment, altered the serial numbers of the defendants, and although apparently he intended to pass a decree against the appellant Debi Bakhsh, the decree was passed against Bhawani Shanker on the 16 of January 1916, The plaintiff, armed with this decree against Bhawani Shanker, proceeded to execute it. Applications for execution were filed against Bhawani Shanker on the 23 of July 1919, on the 13 of July 1922 and on the 26 of February 1923. With regard this last application it may be mentioned that originally the names of all the three defendants ware included in to this application; but when objections were raised by persons whose names were not to be found in the decree the decree-holder's vakil naturally exempted them and asked for execution against Bhawani Shanker alone. Bhawani Shanker then filed an application for amendment of the decree on the ground that it was not the intention of the judgment to decree the claim against him. Owing to a second blunder, notice of this application was not sent to Debi Bakhsh, the appellant, but only to the plaintiff decree-holder. The Court being satisfied that Bhawani Shanker had not been made liable, amended the decree and substituted the name of Debi Bakhsh in place of Bhawani Shanker on the 5th of January 1924, although no notice had been issued to Debi Bakhsh.

(3.) The decree-holder then put in an application for execution of this amended decree on the 28 of January 1924 against Debi Bakhsh. Debi Bakhsh objected to the execution. His objections were disallowed by the first Court. He appealed to the lower appellate Court and the only point urged before that Court was that the present application for execution was barred by time. His appeal, however, has been dismissed.