Judgement
SUBBA RAO, C.J. :- This is a Civil Miscellaneous Appeal against the Order of the Court of the Subordinate Judge, Rajamundry, allowing the application filed by the respondents to add the legal representatives of the 3rd judgment-debtor in an execution application.
2. The respondents obtained a decree for mesne profits against the appellants and others on 10-9-1947. The 3rd judgment-debtor died on 4-9-1949. On 18-7-1950, the decree-holders filed E. P. No. 105 of 1950 for executing the decree. Presumably because they had no knowledge of the death of the 3rd judgment-debtor, the application was filed against her also. On 5-12-50 the decree-holders filed E. A. No. 26/51 for adding the appellant as the legal representative of the 3rd judgment-debtor and for proceeding with execution. The learned Judge ordered that application. Hence, the appeal.
3. Mr. Ramakrishna, learned counsel for the appellant, contends that the execution petition filed on 18-7-1950 against the 3rd judgment-debtor was not one made in accordance with law, and, therefore, the application filed on 5-12-1950, i.e., more than three years after the date of the decree, is clearly barred by limitation.
4. His argument would be sound if the execution application made on 18-7-1950 was a nullity. Order 21, R. 11, C. P. Code prescribes the particulars to be given in every execution application. Rule 17 enables the decree-holder to rectify or correct mistakes and, if mistakes are not corrected, the application will be dismissed. It follows that if the mistakes are corrected and if the application complies with the provisions of O. 21, R. 11, the application must be demeed to have been filed validly on the date on which it was presented. If that is the correct position, the short question, is, if a decree-holder gives by mistake the name of a deceased judgment-debtor in the original application, whether it can be corrected by impleading his legal representatives under O. 21, R. 17, C. P. C.
One of the particular required under O. 21, R. 11, C. P. C. is the names of the parties. If, for instance the name of the party is wrongly given in the original application or a wrong name is given, it cannot be contended that it cannot be corrected under O. 21, R. 17. If so, by the same reasoning, if by mistake the name of a dead judgment-debtor is given the name can be corrected under O. 21, R. 17, C. P. C. In either case, the basis for the correction is the mistake in the original application. This view has been followed consistently with one doubtful exception, in a long catena of cases starting from Samia Pillai v. Chockalinga Chettiar, ILR 17 Mad 76 (A).
Muthuswamy Ayyar and Best JJ. in that judgment under similar circumstances observed at page 77:
The Subordinate Judge observes that the mention of the deceased , 1st defendants name in Col 9 of the application was probably a mistake made by the Vakils Gumastha. It was no doubt a bona fide mistake. Where there has been in fact an application for execution made by the party entitled to make it, the mere fact of a mistake having been made in giving the particulars required by S. 235 of the Code of Civil Procedure cannot, we think, have the effect of rendering the application a nullity."
5. This view has been followed in Parakkat Devaswom v. Venkatachallam Vadhyar, 50 Mad LJ 153 : (AIR 1926 Mad 321) (B); Jagannatha Rao v. Narayanamurthy, 65 Mad LJ 374 : (AIR 1933 Mad 696 (C); Subramaniya Desika v. Rangaswamy Chettiar, 68 Mad LJ 261 : (AIR 1935 Mad 161) (D) and Chinnan Chettiar v. Manager, Sivaganga Estate, 1948-2 Mad LJ 377 : (AIR 1949 Mad 348) (E). The only exception is that found in the unreported judgment in C. M. A. 185/1902. That judgment has not been placed before us and we cannot therefore ascertain the exact reasoning underlying that judgment. The Madras view was followed by the Calcutta High Court in Bipin Behari Mitter v. Bibi Zohra, ILR 35 Cal 1047 (F) and by the Patna High Court in Sheo Gobindram v. Mt. Kishunbansi Kuer, ILR 11 Pat 546 : (AIR 1932 Pat 222) (G). The Allahabad High Court in Madho Prasad v. Kesho Prasad, ILR 19 All 337 (H) and the Nagpur High Court in Gulabsingh v. Nathu Ramkisansa, ILR (1944) Nag 419 : (AIR 1944 Nag 145) (I) took a different view in that they held that the original application filed against a dead man was not in accordance with law. We are inclined to prefer the Madras view to that of the Allahabad and Nagpur view, particularly because that has been the settled law for over 60 years.
6. No other point arises. The appeal fails and is dismissed with costs.
Appeal dismissed.