GHULAM HASAN, J. - (1.) THIS execution of decree appeal has been referred to the Full Bench by Hon. M.H. Kidwai, J., on the ground that there was a conflict of authority in the various High Courts in India upon the question of law arising in the case.
(2.) THE facts are few and simple. Janki Sahu Trust obtained a simple money decree from the Civil Judge of Sultanpur exercising jurisdiction as a Small Cause Court against Sheo Ghulam deceased for Rs. 300 on 31st May 1930. The decree was transferred to the Munsif not vested with Small Cause Court powers for execution. Three unsuccessful applications for execution were made and we are concerned with the fourth application, which was the last, made on 5th March 1942. It is not denied that the limitation for execution of the decree expired on 31st May 1942. In the application above referred to four plots Nos. 248, 913, 919 and 964 described as groves were sought to be attached and sold in addition to certain houses belonging to the judgment -debtor, Sheo Ghulam died and is represented by his heir and legal representative, Ram Palat. It appears from the record that objections were filed by several persons to execution on the ground that the groves sought to be sold did not belong to the judgment -debtor but to the objectors. It would be unnecessary to refer to the matter in detail beyond saying that grove No. 919 was released from attachment, 3/4th share in groves Nos. 248 and 913 and half share in grove No. 964 were also released in addition to some houses and the rest of the property was ordered to be sold. The decree was transferred to the Collector for sale of the property. Before the Collector certain defects in the application were pointed out to the decree -holder and he was given an opportunity to remove them. The proceedings before the Collector went on for some time without leading to any fruitful result. Ultimately the decree -holder on 14th March 1944, nearly two years after limitation had expired, filed an application purporting to be under Ss. 151 and 153, Civil P.C., stating that he had put the groves to sale in execution of his decree but it transpired from the statement of the patwari that the grove numbers against which execution was taken out did not contain any trees and the entries in the papers were wrong. He accordingly prayed that his application for execution be amended and gave the following grove numbers in place of the old. These are : No. 918 5 mango trees No. 920 7 mango trees No. 329 6 mango trees No. 983 18 mango trees No. 1185 judgment -debtors grove No. 248 judgment -debtors grove It appears from this that Nos. 913 and 964 were excluded but old No. 248 was retained and fresh numbers were added. The sale officer returned this application to the Munsif on the same day. A notice was ordered to issue on 18th March to the judgment -debtor and the case was fixed for 14th April. The decree -holder gave the duplicate of the application to the judgment -debtor under the orders of the Court and the case was ordered to come up for disposal on 6th May. The order -sheet does not show that any proceedings took place on this date, but on 10th May the Court allowed the amendment in the absence of both the parties. Against this order the judgment -debtor filed an appeal on 5th July. He also filed an objection on 6th July before the Munsif, which was fixed for 26th August. Nothing further was done in the Court of the Munsif as the matter was pending in appeal. The Munsif observed in his order allowing amendment as follows : "The parties were labouring under a common mistake as to the property in dispute. The mistake was discovered for the first time in the execution Court and hence this application for amendment of the property in dispute by substitution of other plots. I think that the amendment can be allowed under S. 153, Civil P.C." It is agreed that S. 153 is a mistake for S. 151. The lower appellate Court in appeal held that the application for amendment of the execution application was a fresh application seeking to proceed against properties of the judgment -debtor other than those mentioned in the original application and could not be treated as one to remedy any defect under O. 21, R. 17 nor did the decree -holder invoke the aid of those provisions. In the opinion of the lower appellate Court as the application had been after the expiry of 12 years, the inherent powers of the Court could not be exercised in violation of the statutory provisions and the application for amendment was wrongly allowed. The lower appellate Court relied on certain decisions in support of its conclusion.
(3.) WHEN the matter came up before our learned brother, judicial decisions for and against the view taken by the lower appellate Court were cited, whereupon the whole appeal was referred to the Full Bench.;