Kulwant Sahay, J.:— The respondent obtained a decree against one Musammat Jadui on the 21st of June, 1923. This decree was affirmed on appeal on the 31st July, 1924, and on second appeal by the High Court on the 22nd July, 1927. On the 15th of July, 1930, an application for execution of this decree was filed by the respondent against Musammat Jadui. The application was ordered to be registered 1 and notice under Order XXI, rule 22, of the Civil Procedure Code was ordered to be issued on the 15th of July, 1930, fixing 22nd July, 1930, for return. This notice was received unserved with the report that the judgment-debtor was dead. On the 22nd of July, 1930, the court directed the decree-holder to take proper steps and fixed the time for doing so up to the 29th of July, 1930. On the 28th of July, 1930, the decree-holder filed, an application stating that the original judgment-debtor Musammat Jadui was dead and praying to substitute Sheogobind Kahar, her grandson, in her place. This application was taken up by the Munsif on the 29th of July, 1930, on which date he ordered that Sheogobind Kahar be substituted as prayed for. Notice of the application was then served on Sheogobind Kahar, and on receipt of this notice, he filed an objection to the execution on the ground that the application for execution was barred by limitation. His point was that the original judgment-debtor had died some time in February, 1930, and the application made on the 28th of July, 1930, was barred by limitation. The learned Munsif upheld, this objection and found that the application was barred, on the footing that application was an application for substitution and was consequently barred under Article 177 of the Limitation Act as it was presented more than ninety days after the death. The decree-holder thereupon went in appeal before the District Judge and the District Judge has pointed out that the provisions as regards substitution do not apply to execution proceedings and that the application of 28th of July, 1930, could not be held to be barred by limitation on this ground. In this view the learned District Judge was certainly right, and his decision is not challenged in this appeal by the learned Advocate for the appellant, as indeed it could not be challenged having regard to the decision of the Full Bench of this Court in Hakeem Syeed Mohammad Taki v. Rai Fateh Bahadur Singh. It was, however, contended before the learned District Judge that in so far as Sheogobind Kahar was concerned the application for execution must be taken to have been filed on the 28th of July, 1930, and was, therefore, barred by limitation as it was more than three years from the date of the final decree. The learned. District Judge has held that the fact that the original application filed on the 15th of July, 1930, was amended, brought the case under the provisions of Order XXI, rule 17, sub-rule (2), of the Civil Procedure Code and the effect was that as against Sheogobind Kahar the amended application should be deemed to have been an application in accordance with law and presented on the date when it was originally presented on the 15th of July, 1930. He has further held that the order for issue of a notice under Order XXI, rule 22, saved the bar of limitation, and further that the application of the 15th of July, 1930, although it was directed against the dead judgment-debtor, must be taken as a step-in-aid of the execution which saved the present application made on the 28th of July, 1930, from the bar of limitation. The learned Advocate for the appellant has contested the correctness of each one of these findings. In my opinion the view taken by the learned District Judge was correct on all the points.
Under Order XXI, rule 17, when an application is presented for execution, it is the duty of the court to ascertain whether it complies with the requirements of rules 11 to 14, and if it did not comply with the requirements of those rules, it was the duty of the court either to reject the application or to allow the defects to be removed then and there or to order them to be removed within a time to be fixed by it. The application presented on the 15th of July, 1930, did not comply with the requirements of Order XXI, rule 11 inasmuch as the name of the person against whom execution of the decree was sought was incorrectly stated. It was, however, open to the court either to reject the application or to allow it to be amended then and there, or to order the amendment to be made within a time to be fixed by it. The defect was not brought to the notice of the court at the time the application was presented, and therefore, it could not be removed then and there. The defect was brought to the notice of the court on the 22nd of July, 1930, and, as soon as the fact was brought to the notice of the court, it fixed a time, namely, up to the 29th of July, 1930, to correct the mistake. The provisions of Order XXI, rule 17, were therefore substantially complied with, and when in compliance with the order of the court the decree-holder filed his application on the 28th of July, 1930, that application must be taken as an application for amendment of the original application filed on the 15th of July for substitution of the name of Sheogobind Kahar in place of the deceased judgment-debtor as the person against whom the execution of the decree was sought. If that is so, then the fact of that amendment would be to treat the application for execution as validly presented on the 15th of July, 1930.
It is contended on behalf of the appellant that the order for amendment could only be made by the court at the time the application for execution was presented and could not be made on a subsequent date. It was, however, held in Gnanendra Kumar Roy Chowdhry v. Rishendra Kumar Roy that an order for amendment, when a defect is brought to the notice of the court, is an order under Order XXI, rule 17, and has the effect that the amendment relates back to the date of the original application. I am, therefore, of opinion that when the application was amended by the order of the 29th of July, 1930, the application of the 15th July became effective and must be treated as having been filed on that date for the purpose of limitation.
It is further contended that under the provisions of Order XXI, rule 17(3), the amendment made under this rule should be signed or initialled by the Judge, and in the present case the application itself does not appear to have been signed or initialled by the Judge. On a reference to the application filed on the 15th of July, 1930, we find that there is a correction made to the effect that under order dated 29th of July, 1930, Sheogobind Kahar was brought on the record in place of the judgment-debtor named who was dead, and there appears to be the initial of some officer below the endorsement. We are not in a position, to say whether these initials are of the Munsif or of any clerk in the office. We have, however, got an order in the order-sheet in the writing of the Munsif himself directing the substitution to be made and signed by him. This order with the signature of the Munsif sufficiently complies with the provisions of Order XXI, rule 17(3). The learned District Judge was also right in treating the application of the 15th of July, 1930, as a step-in-aid of execution although it was made against the dead judgment-debtor. This view is supported by the decision of this Court in Puran Mall v. Musammat Dihva. It is true that a fresh application in the tabular form was not presented on the 28th July, but this does not in any way affect the merits of the case. If the application of the 15th of July, although against the dead judgment-debtor, be treated as one in aid of execution then it will have the effect of saving the application filed on the 28th of July, 1930, from the bar of limitation. Moreover, the issue of the notice under Order XXI, rule 22, has the effect of giving a fresh start to the period of limitation as held by the District Judge. The decision of the District Judge must be upheld and this appeal dismissed with costs.
James, J.:— I agree.
Appeal dismissed.