EDAVALATH POTAYUR MANAKKAL MAHESWARAM NAMBUDRIPAD KARNAVAN AND MANAGER OF THE ILLOM Vs. THIRUVAZHIYOT VELAPPA MENON

JUDGEMENT

(1.) The legal representative of the judgment-debtor is the appellant. The question for decision is whether the execution application presented by the respondent on 4 April, 1923 is barred by limitation. The facts are these : The original judgment-debtor, one Narayanan Nambudripad, died. On his death, execution was taken in 1917 against his legal representative, Vasudevan Nambudripad. He also died. In 1920 by Ex. B execution was then taken against his legal representative Maheswaram Nambudripad. This execution petition was dismissed for non-payment of batta for notice. The petition out of which this Civil Miscellaneous Appeal arises was presented on 4 April, 1923, within 3 years from the last application and on the last day of the 12 year from the date of the second appeal decree. In this application the respondent showed the deceased Vasudevan as the counter-petitioner and not Maheswaram as he should have done. The notice was returned with the endorsement that the counter-petitioner was dead. Then the petitioner applied for amendment of the execution application by substituting the name of Maheswaram for that of the deceased Vasudeyan. The amendment was allowed on 6 July, 1923 when it was more than 12 years after the decree in the Second Appeal.

(2.) The last execution application presented on 4 April, 1923 was admittedly infructuous as nothing could be done in pursuance of it, as it was presented against a dead man and not against the proper living legal representative. If the substitution of the present appellant's name is valid under the provisions of Sub-rule (1) of Rule 17 of Order 21 of the Code of Civil Procedure, then, by virtue of Sub-rule (2), the application as amended must be deemed to have been an application in accordance with law, and presented on the date when it was first presented and therefore not barred by limitation. If the amendment does not, however, satisfy the requirements of the said rule, then, the appellant's name having been substituted only on 6 July, 1923 the execution petition under appeal can be deemed to have been presented against him only on 6 July, 1923 when 12 years had elapsed after the passing of the decree and is so barred, is the argument urged on behalf of the appellant.

(3.) Under Order 21, Rule 11 (2), Clause (i) every application for execution shall contain among other particulars the names of the persons against whom execution of the decree is sought; under Order 21, Rule 17, Clause (1), Civil Procedure Code, the Court shall ascertain whether the requirements laid down in Rule 11 have been complied with; if not complied with, it is open to the Court to reject the application or to allow the defect to be rectified.