(1.) This is an appeal by the decree-holder from the order of the Subordinate Judge of Purnea dated 19 November 1941. The decree which the decree-holder is seeking to execute was passed on 27 September 1928. After the decree several applications were made by the decree-holder for executing it, but these applications proved abortive. The last application was made by him on 27th September 1940 and in this application he asked the Court to proceed against seven lots of properties. The sixth property was described as follows: Tauzi No.--861; Area--263.7; revenue payable to the Collector Rs. 77- 13-3; Village Fulbari; Thana 168; Pargana Sultanpur; Police station Araria.
(2.) On 20 March 1941 the decree-holder filed an application stating that the sixth property had been wrongly described in the execution petition and he prayed for the amendment of the petition by inserting a new description. The new description was as follows:
(3.) The amendment was allowed ex parte, but on 6 May 1941 the judgment- debtor appeared in Court and presented an application asking the Subordinate Judge to recall his ex parte order directing the amendment of the execution petition by including in it the property already referred to. The learned Subordinate Judge granted the prayer of the judgment-debtor and hence the present appeal. The learned Subordinate Judge has stated in his order that the amendment was allowed by him ex parte as it was not brought to his notice that at the time when the application for the amendment was made by the decree- holder his decree had already become time-barred under Section 48, Civil P.C. The view taken by him was that the order allowing the amendment was ultra vires and therefore it was fit to be cancelled. The learned Subordinate Judge also expressed the opinion that the execution cannot proceed against property No. 6.