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AMICUS AI
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • Manindra Nath Ghose
  • Anil Kumar Sen for Sibadas Ghose - Chandra Sekhar Sen and Mritunjoy Dey
Judges
  • G. N. Das And Guha
Acts
  • Art. 182(5), Limitation Act,
  • Art. 182(6), Limitation Act,
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • Manindra Nath Ghose
  • Anil Kumar Sen for Sibadas Ghose - Chandra Sekhar Sen and Mritunjoy Dey
Judges
  • G. N. Das And Guha
Acts
  • Art. 182(5), Limitation Act,
  • Art. 182(6), Limitation Act,
See more information ...
Smart Summary

Concise Analytical Summary of the Opinion (G. N. Das, J.)

Factual and Procedural Background

The decree-holder obtained a decree on 23 March 1942 in the Presidency Court of Small Causes (4th Court) against Rati Kanta Mukherji for Rs. 1,127-10-9. There had been an attachment before judgment on 6 March 1942 which was confirmed, but on 13 June 1942 the attached properties were released and the execution case was dismissed. The judgment-debtor died prior to June 1944, leaving a widow and four sons (two minors).

On 26 June 1944 the decree-holder filed an application purporting to be for execution of the 1942 decree which prayed, among other things, for substitution of one son (Nalini Ranjan Mukherji) as heir and sought execution by attachment and sale of movables (the application did not annex a list of movables). Notices were ordered and various adjournments and defaults followed. A fresh or similar application was made in June 1945 and proceedings continued: on 1 September 1945 several heirs were placed on record as heirs and legal representatives, and on 24 November 1945 the Court ordered that Nalini Ranjan Mukherji be placed on record and "Execution to issue."

The decree was transferred to the Munsifs Court at Howrah for execution in December 1945. The judgment-debtors (heirs) objected that execution was barred by limitation. The trial Court overruled the limitation objection and directed execution. The first appellate Court allowed the appeal and dismissed the execution case. The decree-holder appealed to this Court; that appeal was heard and dismissed by this Court on 11 August 1949 (appeal from Appellate Order No. 197 of 1947). The present opinion arises from that appeal being before G. N. Das, J., considering whether the execution proceedings were barred by limitation and whether the steps taken by the decree-holder were steps-in-aid of execution "in accordance with law."

Legal Issues Presented

  1. Whether the proceedings and applications made by the decree-holder after the death of the judgment-debtor (including an application filed on 26 June 1944) constituted valid steps-in-aid of execution that extended or saved the life of the decree under the Limitation Act (Art. 182(5) and (6)).
  2. Whether, when a judgment-debtor dies after the decree and no execution proceeding is pending, the decree-holder must initiate execution proceedings and specifically pray under Order 21, Rule 22, Civil P.C., if more than one year has elapsed since the decree.
  3. Whether an application for execution that prays for attachment and sale of movables but does not annex a list of movables is "in accordance with law" (i.e., whether it is sufficiently compliant to permit the Court to issue execution and thereby save limitation).
  4. Whether steps taken by the decree-holder directed against one legal representative of the deceased judgment-debtor (e.g., one heir) operate to save limitation as against the other legal representatives.

Arguments of the Parties

Appellant (Decree-holder) — Main Contentions

  • The applications and steps taken by the decree-holder after the death of the judgment-debtor were steps-in-aid of execution that extended the life of the decree under Art. 182(6) of the Limitation Act.
  • The application of 26 June 1944, though defective in not annexing a list of movables, was nevertheless an application "in accordance with law" because the Court could, in a conceivable factual situation (movables being in possession), issue execution upon it; at worst the defects were amendable.
  • Where the Court, after hearing the substitution applications, ordered "Execution to issue" and placed heirs on record, that order decided between the parties that execution was not barred by limitation and thus operated as res judicata.

Respondents (Judgment-debtors / Heirs) — Main Contentions

  • The execution was barred by limitation; accordingly, the execution proceedings should be dismissed.
  • Reliance was placed on decisions (notably from the Bombay High Court and others) contending that a defective application for execution (e.g., not specifying particulars required by Order 21) may not be sufficient to save limitation or may not be "in accordance with law."

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Gour Chandra v. Janardan Prasad, AIR (10) 1923 Pat 130 (68 IC 337) Order directing execution to issue operates as a decision between the parties that execution was not barred by limitation (res judicata effect). The Court relied on this authority to hold that the order directing execution to issue operates as res judicata and prevents subsequent challenge on limitation grounds.
Promotha Nath v. Babu Mia, 49 C.W.N. 260 : AIR (32) 1945 Cal 336 Authority cited to support the res judicata effect of an order directing execution. Used as corroborative authority alongside Gour Chandra for the proposition that such an order precludes re-opening limitation in later proceedings.
Satya Narayan v. Kalyani Prosad, 49 C.W.N. 558 : AIR (32) 1945 Cal 837 Similar support for the res judicata effect of an order directing execution. Cited in support of the same conclusion on res judicata and limitation.
Kuppuswami Chettiar v. Rajagopal Aiyar, 45 Mad 462 : AIR (9) 1922 Mad 79 Support for the view that when no execution is pending at the time of death, the decree-holder must take out execution and pray for appropriate steps (including O.21 R.22 where relevant). Referenced as authority supporting the stricter procedural approach; the Court acknowledged it but preferred a more liberal line of authorities elsewhere.
Amur Krishna v. Jagat Bandhu, 59 Cal 760 : AIR (18) 1931 Cal 719 (Full Bench) Observation that steps-in-aid of execution can only be taken in an execution proceeding which is pending or capable of being kept alive; cannot be taken if the execution itself is already barred. Quoted for the general principle about steps-in-aid, but the Court considered other authorities and adopted a more liberal construction of the Limitation Act.
Sankara Nainar v. Thangamma, 45 Mad 202 : AIR (9) 1922 Mad 247 One of the Madras decisions taking a more liberal view permitting certain steps even when no execution pending. Placed in contrast with Kuppuswami; the Court accepted the more liberal class of cases including this as preferable.
M. Kannan v. P. Avvulla Haji, 50 Mad 403 : AIR (14) 1927 Mad 238 Another Madras decision taking a more liberal view regarding steps-in-aid when no execution pending. Included among cases the Court accepted to support a liberal reading of Art.182(5).
Chathangali v. P. Kunhamli, 57 Mad 803 : AIR (21) 1934 Mad 392 Madras authority supportive of the liberal view on Article 182(5). Counted among the authorities favouring liberal construction which the Court adopted.
Ghanayalal v. Punjab National Bank, 111 IC 259 : AIR (15) 1928 Lah 7 Supportive precedent cited among those taking a liberal approach. Relied on as part of the group of authorities favouring a liberal construction of the Limitation Act.
Jagdeo Narain Singh v. Rani Bhubaneswari Kuer, 7 Pat 708 : AIR (15) 1923 Pat 612 Another precedent cited among the liberal line. Used as part of the body of authorities favouring acceptance of a liberal view of Art.182(5).
Gopal Skankar v. Raising Premji, 36 Bom LR 510 : AIR (21) 1934 Bom 266 Bombay decision cited among cases taking a liberal approach. Included in the list of authorities that the Court found preferable to a narrow construction.
Ramchandra v. Uka, 103 IC 279 : AIR (14) 1927 Nag 308 Another precedent cited in support of a more liberal approach. Counted among authorities endorsing the liberal view of the Limitation Act provisions at issue.
Sreenath Chakravarti v. Priyanath Bandopadhya, 58 Cal 832 : AIR (18) 1931 Cal 312 Held that an application for transfer of a decree is a step-in-aid of execution even though no execution is pending. Used to illustrate that applications other than formal execution proceedings can be steps-in-aid, supporting the Court's reasoning that an O.21 R.22 prayer can be similar.
Gopal Chunder Manna v. Gossain Das, 25 Cal 594 : 2 C.W.N. 558 (FB) Held that an application for issue of a notice under O.21 R.22 is a step-in-aid of execution. Adopted by the Court as precedent that the prayer for a notice under O.21 R.22 can be a step-in-aid of execution.
Abdul Aziz v. Yakut Abdul Gani, 54 IC 433 : AIR (7) 1920 Cal 166 Held that even if no application for execution exists, a mere prayer for issue of notice under O.21 R.22 is a step-in-aid of execution (with some differing judicial opinions noted). Relied upon to support the proposition that a prayer for O.21 R.22 notice itself may operate as a step-in-aid of execution.
Chandra v. Pares Nath (Saday Chandra v. Pares Nath), 35 CLJ 82 : AIR (9) 1922 Cal 44 Held that a defective application containing permissible prayers (including O.21 R.22) could be a step-in-aid and save limitation. Quoted for the proposition that an application which prays for reliefs the Court can grant will be effective to stay limitation even if defective.
Asgar Ali v. Tretilokya Nath Ghose, 17 Cal 631 (FB) Application lacking list of properties to be attached and sold held not in accordance with law (example of a fatal omission). Cited as an example where omission made the application incapable of issuing execution; contrasted with facts of present case.
Nathmal Matkuradas v. Balkrishna Gangalisan, AIR (23) 1941 Nag 162 : 194 I.C. 641 Authority holding that an application similar to the present (prayer for attachment without annexed list in certain circumstances) may be valid. Used to support the view that the instant application could be valid under conceivable circumstances.
Mahomed Bhai v. Dawood Bhai Co., AIR (25) 1933 Bom 405 : ILR (1918) Bom 708 Case where an application defective for not specifying particulars was amended by the Court; held not to be a mere nullity. Referred to by respondents' counsel; the Court observed it did not directly decide the present question but showed amendment may be permissible.
Gopal Parsharam v. Damodar Janardan, AIR (36) 1943 Bom 353 : 210 I.C. 376 Consideration of whether certain defective applications are "in accordance with law"; reviewed related authorities. Referred to in the discussion of the meaning of "in accordance with law" and the test whether Court could issue execution on the application.
Vallabhdas Narandas v. Kantilal G. Parekh, AIR (84) 1947 Bom 430 : 49 Bom L.R. 420 Authority observing that a prayer for issue of notice under O.21 R.22 is not a mode of execution but a preliminary hurdle (and can in some circumstances be a step-in-aid). Noted by the Court as not directly deciding the present question but supporting that O.21 R.22 prayers can be regarded as steps-in-aid in certain circumstances.
Abdul Rafi v. Maula Bux, 37 All 527 : AIR (2) 1915 All 320 Dealt with applications directly coming within O.21 R.12 (inventory requirement) — referenced for distinction. Cited by respondents' counsel; Court found it did not decide the present point as facts differed.
Birdhi Chand Dhondiram v. Bade Saheb, AIR (14) 1927 Bom 63 : 98 I.C. 941 Held that O.21 R.12 does not apply where decree is obtained against legal representative of judgment-debtor — used for statutory interpretation. Referred to in the context of the inventory requirement and whether it applied to the present facts.
Ramanuj Sewak Singh v. Hingu Lal, 3 All 517 Held that an application against one legal representative saved limitation as against other legal representatives. Relied on to hold that steps taken against one heir saved limitation as against the other heirs.
Krishnaji Janardan v. Murrarvav, 12 Bom 48 Authority consistent with the proposition that proceeding against one legal representative saves limitation as to others. Used to support the Court's conclusion that filing against one heir saved limitation as against all heirs.

Court's Reasoning and Analysis

The Court's reasoning proceeded in identifiable steps:

  1. Initial factual finding: The Court reconstructed the facts from the record, including the decree (23 March 1942), attachment, release of attachment and dismissal of prior execution, the death of the judgment-debtor prior to June 1944, the substitution applications and eventual order placing heirs on record and directing "Execution to issue," and the subsequent transfer to Howrah where limitation was contested.
  2. Res judicata point: The Court held that once the heirs were placed on record and the Court ordered execution to issue, that order amounted to a decision between the parties that execution was not barred by limitation. Relying on Gour Chandra v. Janardan Prasad and corroborative authorities, the Court concluded that such an order operates as res judicata and cannot be challenged later on limitation grounds.
  3. Independent consideration of contested legal questions: Although the res judicata conclusion was dispositive, the Court separately analyzed whether applications made by the decree-holder could be regarded as steps-in-aid of execution that were "in accordance with law" and thus would extend the life of the decree under Art. 182(5) and (6) of the Limitation Act.
  4. Survey of authorities and competing approaches: The Court contrasted a stricter line (e.g., Kuppuswami Chettiar) holding that an execution proceeding must be pending and that a fresh application after death must comply strictly (including O.21 R.22 where applicable) with a more liberal line (cases from Madras, Calcutta, Nagpur, Bombay, Patna etc.) that treated certain applications or prayers (such as for issue of O.21 R.22 notice or for transfer) as steps-in-aid of execution even if no execution proceeding was formally pending.
  5. Acceptance of liberal approach: The Court expressed preference for the liberal line, observing Art. 182(5) should receive a fair and liberal construction to enable a decree-holder to reap the fruits of his decree. It relied upon authorities (e.g., Sreenath Chakravarti, Gopal Chunder Manna, Abdul Aziz, Chandra/Saday Chandra) that treat the prayer for O.21 R.22 notice or applications like transfer as steps-in-aid of execution.
  6. "In accordance with law" test: The Court examined the standard from decisions (including Gopal Parsharam, Asgar Ali and Pdambar Jani) that an application is "in accordance with law" if it is one upon which the Court could issue execution — i.e., the omission is not such as to make it impossible for the Court to issue execution.
  7. Application to present facts: The Court applied the statutory content of an application for execution (Order 21, Rule 11(2)(j) and Rule 12) and observed that Rule 12 requires an inventory of movables only where the judgment-debtor is not in possession. There is no rule requiring an inventory when the judgment-debtor is in possession. Given the absence of a rule making the present application a nullity and the possibility that movables might have been in the possession of the judgment-debtor (in which case no inventory is required), the Court found the application (though defective) was not so defective as to be incapable of supporting execution or to render it void ab initio.
  8. Conclusion on limitation: For these reasons the Court concluded the application filed on 26 June 1944 and the steps taken constituted steps-in-aid of execution "in accordance with law" and thus saved limitation under Art. 182(6). Separately, and in the alternative, because an order had already directed execution to issue after placing heirs on record, limitation could not be raised later (res judicata).
  9. Effect of proceedings against one heir: The Court reviewed authorities (Ramanuj Sewak Singh and Krishnaji Janardan) and concluded that proceeding against one legal representative of the deceased judgment-debtor saved limitation as against other legal representatives.

Holding and Implications

Holding:

APPEAL ALLOWED

The Court allowed the appeal of the decree-holder. It set aside the judgments of this Court (the appellate order referred to earlier) and of the first appellate Court and restored the judgment of the trial Court which had overruled the limitation objection and directed execution to proceed. The appellant (decree-holder) was awarded costs in all Courts; the hearing fee before this Court was assessed at three gold mohurs.

Immediate consequences:

  • The trial Court's order permitting execution is restored and execution proceedings may proceed.
  • The decree-holder recovers costs in all Courts and the assessed hearing fee before this Court.
  • No broader or novel legal precedent beyond application of existing authorities is asserted; the Court primarily applied established principles (liberal construction of Art. 182(5)/(6), the "in accordance with law" test, and res judicata effect of an order directing execution) to the facts of this case.

Note: This summary is drawn exclusively from the provided opinion text. Sections omitted above (if any) reflect that the original opinion did not supply additional particulars.

Show full summary ...

    Sm. Akshoy Kumari Debi v. Nalini Ranjan Mukherjee And Ors.

    Judgement

    G. N. DAS, J. :- This is an appeal by the decree-holder against a decision of our learned brother Chunder, J.

    2. The facts of the case were not fully placed before this Court. We have therefore to state those facts in some detail.

    3. On 23rd March 1942, the appellant obtained a decree in the Presidency Court of Small Causes, 4th Court, against Rati Kanta Mukherji for a sum of Rs. 1127-10-9. It appears from the order sheet which is on the record that there was an attachment before judgment on 6th March 1942 which was confirmed by the Court. On 13th June 1942, the attached properties were released from attachment and the order of that date goes on to state that the execution case was dismissed. On some date which it is not possible for us to discover from the records but prior to June 1944, the sole judgment-debtor Rati Kanta Mukherji died. He was survived by his widow and four sons, Nalini Ranjan Mukherji, Anil Krishna Mukherji, Ranjit Kumar Mukherji and Sailen Mukherji the latter two being minors. On 26th June 1944 the decree-holder made an application which purports to be one for execution of the decree passed on 23rd March 1942. In column 9 of the application which is headed as "Mode in which the assistance of the Court is required" the following statement occurs :

    "I pray that the total amount of Rs. 1127-10-9 together with interest on the principal sum up to date of payment and the costs of taking out this execution be realised by attachment and sale of defendants moveable property as per annexed list and paid to me. A notice do issue upon Nalini Ranjan Mukherjee of village Malta, P.O. Maju, district Howrah, to show cause why his name should not be substituted in record in place of defendant Rati Kanta Mukherjee now deceased and execution be issued against him and notice be sent under registered cover. Grounds : That Nalini Ranjan Mukherjee is the son, heir and legal representative of the defendant Rati Kanta Multherji now deceased."

    On the day following the following order was recorded :

    "On the plaintiffs application for substitution of the name of Nalini Ranjan Mukherji in place of defendant deceased ordered; Issue notice returnable on 1st August 1944."

    The order sheet shows that the case was adjourned on 1st August 1944, 22nd August 1944, 9th September 1944, 11th November 1944 on which date it was adjourned to 2nd December 1944, when the application was dismissed for default. Some time thereafter, on 8th June 1945, an application on terms similar to that which was filed on 26th June 1944, was presented to the Small Cause Court on behalf of the decree-holder. The Court thereupon issued a notice on 13th June 1945. The case was adjourned on 7th July 1945, 4th August 1945 and then to 1st September 1945. Meanwhile, on 25th August 1945. the following order was recorded :

    "On the plaintiffs application for substitution of the names of Anil Krishna Mukherji, Ranjit Kumar Mukherji, Sailen Mukherji and Mrs. Rati Kanta Mukherji the minors represented by their mother Mrs. Rati Kanta Mukherji ordered : Issue notice returnable on 1st September 1945."

    On 1st September 1945, it was ordered :

    "Ordered that the names of the opposite parties Anil Krishna Mukherji, Kanjit Kumar Mukherji, Sailen Mukherji, the minors represented by their mother Mrs. Rati Kanta Mukherji as guardian and Mrs. Rati Kanta Mukherjee be placed on record as heirs and legal representatives of deceased defendant. No order is made as to Nalini Ranjan Mukherji."

    Nothing further was done till 1st October 1945, when the following order is recorded :

    "On the plaintiffs application for substitution of the name of Nalini Ranjan Mukherji in place of deceased defendant ordered; Notice do issue returnable on 24th November 1945."

    On 3rd October 1945 notice was issued as prayed for. The matter was adjourned on 24th November 1945 to lat December 1945 on which date the Court passed the following order :

    "Application granted : Let the name of Nalini Ranjan Mukherji be placed on record as son, heir, legal representative of the defendant since deceased. Execution to issue."

    On 12th December 1945 an application was made by the decree-holder for transfer of the decree to the Munsifs Court at Howrah on 17th December 1945 the decree was transferred under letter No. 2736 dated 20th December 1945. The execution was thereupon started at Howrah. The judgment-debtors appeared and raised an objection to the effect that the execution of the decree was barred by limitation. The trial Court overruled the objection and directed execution to proceed. On appeal, the first appellate Court allowed the appeal and dismissed the execution case. Against this order a further appeal was taken to this Court being appeal from Appellate Order No. 197 of 1947. This appeal was heard on 11th August 1949 and the appeal was dismissed. It is the propriety of this decision which is now in question before us.

    4. The judgment of this Court proceeds on the following grounds : (1) In case the judgment-debtor dies after the decree and if an execution case is pending at the time, the decree-holder has merely to pray to carry forward she execution case. (2) If no such execution is pending, the decree-holder is required to make an application for execution in terms of O. 21, R. 11 read with S. 50, Civil P.C. if the judgment-debtor was dead within one year of the passing of the decree but if the death took place before one year, a farther prayer has to be made under O. 21, R. 22, Civil P.C. As in the present case there was no proper application for execution, the steps taken by the decree-holder were not in accordance with law and did not have limitation. The view of the learned Judge was that there must be an application for execution started in which a prayer should be made under O. 21, R. 22, Civil P.C. Before we deal with this question it is necessary to refer to a matter which was not placed before the Court. From the facts stated already it appears that after all the heirs of the deceased judgment-debtor had been placed on the record, the Court made an order directing execution to issue and thereafter transferred the case for execution to Howrah. The heirs of the judgment debtor who were then on record did not take any steps to have the order set aside. In these circumstances, it was not open to the judgment-debtor to raise the plea of limitation. As was observed in the case of Gour Chandra v. Janardan Prasad, AIR (10) 1923 Pat 130 : (68 IC 337), the order directing execution to issue was an order "deciding as between the parties that the execution was not barred by limitation." Such an order has been held to operate as res judicata and whether right or wrong, the order cannot be challenged in subsequent proceedings. See also the cases of Promotha Nath v. Babu Mia, 49 C.W.N. 260 : (AIR (32) 1945 Cal 336), Satya Narayan v. Kalyani Prosad, 49 C.W.N. 558 : (AIR (32) 1945 Cal 837). In this view, no further question arises. But as the matter has been argued at length on other points we desire to record our opinion on those points.

    5. The first point which fell to be decided before our learned brother Chunder, J. was whether when a judgment-debtor dies after the decree at a time when no execution case is pending against him, the proper procedure for the decree-holder is to take out an execution and pray for bringing the legal representatives of the deceased judgment-debtor on record and if the judgment-debtor had died more than one year ago to pray for issue of a notice under O. 21, R. 22, Civil P.C. The learned Judge answered the question in the affirmative. The view so taken is supported by the decision in Kuppuswami Chettiar v. Rajagopal Aiyar, 45 Mad 462 : (AIR (9) 1922 Mad 79) and by some other cases of the Madras High Court. It is also supported by certain observations of Ghose, J. in Amur Krishna v. Jagat Bandhu, 59 Cal 760 at p. 771 : AIR (18) 1931 Cal 719 F.B.), where the learned Judge incidentally observed :

    "It must be remembered that a step-in-aid of execution can only be taken in the course of an execution proceeding which is pending or capable of being kept-alive and there can be no step-in-aid of execution when the execution, itself is already barred."

    The above view however has not been taken in the cases of Sankara Nainar v. Thangamma, 45 Mad 202 : (AIR (9) 1922 Mad 247), M. Kannan v. P. Avvulla Haji, 50 Mad 403 : (AIR (14) 1927 Mad 238), Chathangali v. P. Kunhamli, 57 Mad 803 : (AIR (21) 1934 Mad 392), Ghanayalal v. Punjab National Bank, 111 IC 259 : (AIR (15) 1928 Lah 7), Jagdeo Narain Singh v. Rani Bhubaneswari Kuer, 7 Pat 708 : (AIR (15) 1923 Pat 612), Gopal Skankar v. Raising Premji, 36 Bom LR 510 : (AIR (21) 1934 Bom 266), Ramchandra v. Uka, 103 IC 279 : (AIR (14) 1927 Nag 308). I have not been able to discover a direct Bench decision of this Court on this point. In my view the latter class of cases which take a more liberal view of Art. 182(5), Limitation Act, should foe accepted. The article should receive a fair and liberal and not a technical construction as to enable the decree-holder to reap the fruits of his decree. The view taken in the latter class of cases is also correct on principle. It is well settled that an application for the transfer of a decree is a step-in-aid of execution even though no application for execution is pending : Sreenath Chakravarti v. Priyanath Bandopadhya, 58 Cal 832 at p. 841 : (AIR (18) 1931 Cal 312). If therefore an application for transfer of a decree can be regarded as a step-in-aid of execution even when no execution is pending, there is no conceivable reason why it is necessary that an execution proceeding should be pending when the decree-holder makes an application for the issue of a notice under O. 21, R. 22, Civil P.C , which step be has to take before be can obtain relief by way of execution. The question whether an application for the issue of notice under O. 23, R. 22 is a step-in-aid of execution has been answered in the affirmative in the case of Gopal Chunder Manna v. Gossain Das, 25 Cal 594 : (2 C.W.N. 558 FB). Banerjee, C.J. who was the referring Judge was of opinion that even if the application for execution be defective regarded as an application for execution of a decree, if the application contained a prayer for issue of a notice under O. 21, R. 22 the application would still be regarded as one to take some step in aid of execution, in cases where issue of such a notice was necessary, the decree having been passed more than a year before. The view of Banerjee, J. was affirmed by the Full Beach. In a later case, namely, Abdul Aziz v. Yakut Abdul Gani, 54 IC 433 : (AIR (7) 1920 Cal 166), Chitty, J. was of opinion that even if there was no application for execution, a mere prayer for the issue of a notice under O. 21, R. 22 is a step-in-aid of execution. Walmaley, J. agreed in the result but reserved his opinion on this point. Reference may be made to the case of to-day Chandra v. Pares Nath 35 CLJ 82 : (AIR (9) 1922 Cal 44) to which our attention was drawn by Mr. Ghose appearing for the appellant. It is necessary to set oat the facts of that case. In that case, the decree was obtained on 2nd December 1912. An execution was started within three years. Nothing came out of it. On 22nd July 1917 a second application for execution was filed. The application for execution was defective in three respects namely, (1) the date of disposal of the previous application for execution was not correctly stated : (2) the sum due under the decree was wrongly calculated and (3) that col. 10 which deals with the mode of execution was not duly filled up. It, however, contained the following prayers; for substitution of the heirs of one of the decree-holders : (2) for a notice on the other decree-holders under O. 81, R. 15 and (3) as one of the judgment-debtors was dead for the issue of a notice under O. 21, R. 22. It was contended that this application for execution did not save limitation. This contention was overruled, Mookerjee, J. observed that an application to take a step in aid of execution in order that it may be in accordance with law must pray for some relief which the Court cm grant, and then proceeded to say that the three prayers which were made in the application were such as could be granted by the Court on the application than presents.

    It was therefore held that the application was a step-in-aid of execution and extended the period of limitation.

    6. Before Chunder, J. reliance was placed on behalf of the judgment-debtors on certain decision of the Bombay High Court, namely Mahomed Bhai v. Dawood Bhai Co., AIR (25) 1933 Bom 405 : (ILR (1918) Bom 708). The question, however, which arose for decision in that case was as regards the propriety of the application regarded as an application for execution. The application suffered from the defect that the particulars of the property to be attached under O. 21, R. 54 were not specified. The case was heard by Engineer, J. The learned Judge granted an amendment of the application. Against his decision an appeal was taken under the Letters Patent which was heard by a Division Bench presided over by Beaumont, C.J. In dismissing the appeal it was observed that the amendment was properly made. It was further observed that the application though defective was not a mere nullity merely because the application did not describe the property in detail. Reliance was also placed on the case of Gopal Parsharam v. Damodar Janardan, AIR (36) 1943 Bom 353 : (210 I.C. 376). The question then before the Court was whether the application which prayed for rateable distribution but not against the same judgment-debtor was one in accordance with law. The question now before us did not arise in that case. Reference was also made to the case of Vallabhdas Narandas v. Kantilal G. Parekh, AIR (84) 1947 Bom 430 : (49 Bom L.R. 420). Our attention was drawn to the observation of Kania, J. to the effect that the prayer for the issue of a notice under O. 21, R. 22 is not a mode of execution and is not a relief which a party asks as one awarded by the decree. It is a hurdle which the decree-holder has to cross before he can get the relief awarded by the decree. It asks the Court to extend the life of the decree. The observations do not touch the question which are now before us. On the other hand, they support the view that the prayer for the issue of a notice under O. 21, R. 22 can in certain circumstances be regarded as a step-in-aid of execution of a decree. The observations were made in connection with a contention then raised that the prayer for issue of a notice under O. 21, R. 22 was one which came within the purview of O. 21, R. 11(2)(j). It was this question which was decided by the learned Judge the decision being that a prayer for issue of a notice as aforesaid was not a relief which the decree-holder can claim under O. 21, R. 11(2)(j). The cases relied on behalf of the judgment-debtor do not, therefore assist us in deciding the question with which we have to deal.

    7. In the present case, as already stated, the Court did act upon the applications presented on behalf of the decree-holder and the Court directed issue of the requisite notices in the proceedings which were taken by the decree-holder. For the reasons already given the conclusion follows that the proceedings on which reliance is placed on behalf of the decree-holder must be regarded as steps-in-aid of execution of the decree within Art. 182(6), Limitation Act, and extended the life of the decree.

    8. Conceding that it is necessary that there should be an application for execution and the step which is railed on by the decree holder to extend the period of limitation, should be taken in such proceedings for execution before the came can be regarded as a step-in-aid of execution, we have to consider whether in the facts of the present case the application which was filed by the decree-holder on 26th June 1944 was an application for execution of the decree in accordance with law. Toe meaning of the expression "in accordance with law" has been debated in many cases both here and else where. Mr. Ghose, appearing for the appellant, referred us, as already stated, to the case of Saday Chandra v. Pares Nath, 35 C.L.J. 82 : (AIR (9) 1932 Cal 44). The observations of Mookerjee, J. are that an application, even though it be deemed as defective as not to be an application for execution, moat still he regarded as an application these to the proper Court in accordance with law to take some steps-in-aid of execution. In a later case, namely, the case of Pdambar Jani v. Damodar Guchait, 53 Cal 661 : (AIR (13) 1926 Cal 1077) to which Mr. Sea appearing for the respondents drew our attention the following passage at page 673 is relevant :

    "The expression in accordance with law in Art. 182(5) should be taken to mean that the application though defective in some particulars was such upon which execution could be issued. If the omissions were such as to make it impossible for the Court to issue execution upon it, is was the cage in Asgar Ali v. Tretilokya Nath Ghose, 17 Cal 631 (FB), where the list of properties to be attached and sold was not supplied with the application for execution, it should be held that such an application is net in accordance with law."

    In the same case Page, J. observed as follows on page 678 :

    "The true view is that where an application for execution is substantial compliance with law is preferred to the Court. Each an application will be effectual to stay the progress of limitation"

    whether the Court admits or rejects or returns the application or allows such application to be amended. All the cases bearing on the point were reviewed by Sen, J. is the case of Gopal Parsharam v. Damodar Janardan, AIR (30) 1943 Bom 358 : (210 I.C. 376). At page 358 the following statement of the law is made :

    "The main test of an application for execution being in accordance with law would appear to be whether it is possible for the Court to issue execution upon it, that is, whether it is within the power of the Court to grant the kind of relief asked for, though in the particular case the relief may not, on the merits, be granted, for example, owing to some finding on facts, cot to the nature of the application itself."

    9. Bearing the principles so enunciated, let no see whether the prayers made in the application with which we are concerned, satisfy the test laid down above. In the present case, the mode of execution prayed for was "by attachment and sale of defendants movables as per list". No list of movables was however filed The question is whether such an application for execution is one in accordance with law.

    10. The content of an application for execution is to be found in O. 21, R. 11(2), Civil P.C. Clause (j) requires the statement of the mode in which the assistance of the Court is required whether (ii) by the attachment and sale, or by the sale without attachment, of any property. (i) (iii) to (v) are omitted, Rule 12 requires an inventory of movables in cases where the judgment-debtor is not in possession. In such cases, the decree-holder is required by the rule to annex to his application an inventory of his movables with a sufficient description. There is no rule, requiring the decree-holder to annex each an inventory of movables when the judgment-debtor is in possession. The provisions in O. 21, Rr. 43, and 45 or O. 21A relate to the mode of execution and do not specify the material content of an application for execution. The relevant application cannot, therefore, be said to be a nullity. The application was no doubt a defective one which could have been amended, if necessary, at the appropriate time, that is, after the legal representative had shown cause and farther steps in execution were necessary to be taken.

    11. Mr. Sen appearing for the respondents referred as to the case of Abdul Rafi v. Maula Bux, 37 All 527 : (AIR (2) 1915 All 320). That case dealt with an application for execution directly coming within O. 21, R. 12, Civil P.C. It did not decide the point now before us. The case of Birdhi Chand Dhondiram v. Bade Saheb, AIR (14) 1927 Bom 63 : (98 I.C. 941), to which Mr. Sen referred, merely held that O. 21, R. 12, did not apply to a case where the decree was obtained against the legal representative of the judgment-debtor. In the present application there is no express statement whether the movables to be attached were in the possession of the judgment-debtor or not. If the movables to be attached were in the possession of the judgment-debtor, there is so rule which requires the decree-holder to specify these movables. If cannot, therefore, be said that the present application is so defective as to render it to be a nullity. Under one conceivable circumstance the application would be in compliance with the provisions of O. 21, R. 11(2)(j). That such an application is a valid application was decided is the case of Nathmal Matkuradas v. Balkrishna Gangalisan, AIR (23) 1941 Nag 162 : (194 I.C. 641).

    12. On all these grounds my conclusion is that the application filed on 26th June 1944 and steps taken by the decree-holder in that application were steps-in-aid of execution in accordance with law. Limitation was therefore saved by these proceedings.

    13. Assuming that the application which was presented on 25th June 1914 can be regarded as a step in aid of execution, a Further question has got to be considered, namely, whether the steps taken by the decree-holier in those proceedings which were directed against one of the heirs of the deceased judgment-debtor saved limitation as against the rest.

    14. This question was answered in the affirmative in the cases of Ramanuj Sewak Singh v. Hingu Lal, 3 All 517 and Krishnaji Janardan v. Murrarvav, 12 Bom 48, to which our attention was drawn on behalf of the appellants. The views taken in the above cases have been followed in later decisions. [see Rustomjees Law of Limitation, 5th Edn., p. 1821 where the cases are collected].

    15. The reasons given in the case of Sewak Singh v. Hingu Lal 3 All 517, which have been followed in later decisions commend themselves to me and the application which was filed against one of the legal representatives of the deceased judgment-debtor saved limitation as against the other legal representatives of the said deceased judgment debtor.

    16. My conclusion, therefore, is that the present application for execution is not barred by limitation.

    17. The result, therefore, is that this appeal is allowed. The judgment of this Court as also of the first appellate Court are set aside and that of the trial Court is restored. The appellant is entitled to her costs in all Courts. The hearing fee before us is assessed at three gold mohurs.

    18. GUHA, J. :- I agree.

    Appeal allowed.v

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    Sm. Akshoy Kumari Debi v. Nalini Ranjan Mukherjee And Ors.
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