H. Deka, J. - (1.) THESE are two connected appeals arising from the same set of facts and involving the same point of law. The judgment -debtor is the appellant and the orders dated 7th and 9th March 1955 passed by the learned Subordinate Judge at Silchar have been appealed against. It appears from the record that the decree -holder Srimati Subhashini Deb obtained a decree against the defendants in original Title Suit No. 18 of 1939 and the decree was dated 1 -9 -41. Several execution cases were filed previously without much success. The last execution proceedings were started in the year 1952, and they were separately numbered as separate reliefs were sought in three different cases, but by an order of 24 -3 -54 they were directed to be amalgamated, which order however, was revised by the learned Subordinate Judge on 24 -7 -1954. That by itself is not of much importance. What has really been challenged in this case is whether the execution is competent or it is hit by Section 48 of the Civil Procedure - -which provides inter alia that no order for the execution of the same decree shall be made upon any fresh application presented after expiration of twelve years from the date of the decree. The original application for execution was defective in the sense that the particulars of immovable properties sought to be attached in execution of the decree were not furnished, as was required under Rule 13, Order 21, Civil Procedure Code. The requirement of Rule 11 of Order 21, Civil Procedure Code as pointed out by Mr. Deb for the appellant is that it should be indicated in the application for execution as to what is the mode in which the assistance of the court is required and one of the items thereof is by the attachment and sale of any property. Here the application for execution was by sale of property, but the description of the property was not given nor any immovable property mentioned as such as was required under Rule 13. This defect however, was detected on 11 -9 -54 when objection was taken as to the competence of the execution proceedings. The learned Subordinate Judge directed by his order of that date that the decree -holders were to take steps for supplying a list of properties which they wanted to proceed against by 25 -9 -54 and as the list was not supplied on 25 -9 -54 the learned Subordinate Judge directed that no attachment could be issued till the defect in the execution petitions were remedied and the decree -holders were directed to act accordingly and time was extended upto 29 -10 -54 till the reopening of the court. On 29 -10 -54 a verified petition was filed by the decree -holders furnishing the details of the immovable properties sought to be attached and the learned Subordinate Judge directed that this petition should be treated as part of the original application for execution and he ordered attachment of the properties as set forth therein fixing 27 -11 -54. Subsequently on the sale proclamation being published and served a court sale was ordered for to which the judgment -debtors objected. On 7 -3 -55 the learned pleader for the judgment -debtors again argued that the application was barred under Section 48, Civil Procedure Code as the applications for amendments were made or the lists of immovable properties were supplied after lapse of 12 years from the date of the decree. The learned Subordinate Judge reviewed the position under which the order dated 29 -10 -54 was passed and he overruled the objections on behalf of the judgment -debtors. The sale was concluded on 9 -3 -55 whereby the properties described in the application for execution were sold to the highest bidder. Against this final order one of the judgment -debtors Subhas Chandra Deb has come up in appeal. His case has been as already mentioned, that the application for execution was not made in time and the order permitting amendment of the original application for execution by an application of a later date, could not have saved limitation, the application for amendment being made beyond twelve years of the date of the decree. His contention was that the original application for execution being defective for not providing the particulars of the properties, as required under Order 21, Rule 13, Civil Procedure Code, should have been treated as no application in spite of submitting a list later on.
(2.) MR . Goswami for the respondent -decree -holders objected to the maintainability of the appeals on the ground that the material order that was passed in this case was on 29 -10 -54 whereby the application with the list of properties was accepted. This order being passed in the presence of the judgment -debtors, Mr. Goswami urged, it should be treated as binding and conclusive between the parties and that the judgment debtor has no right to file the present appeal long after the material order was passed. We for ourselves do not think that there is much substance in this contention since the final order was passed at a later date when the property was sold whereby the interest of the judgment debtor was materially affected. Mr. Goswami on the other hand defended the action taken by the executing court and submitted that it was the duty of the court to grant leave to amend a defective application when the defect is detected and this was what was done in the present case. He argued that owing to this amendment limitation was saved by virtue of Order 21, Rule 17 (2), Civil Procedure Code. I quote below the relevant portion of the rule : "17. (1) On receiving an application for the execution of a decree as provided by Rule 11, Sub -rule (2), the Court shall ascertain whether such of the requirements of Rules 11 to 14 as may be applicable to the case have been complied with; and, if they have not been complied with, the Court may reject the application, or may allow the defect to be remedied then and there or within a time to be fixed by it. 2. Where an application is amended under the provisions of Sub -rule (1), it shall be deemed to have been an application in accordance with law and presented on the date when it was first presented."
(3.) IN case the amendment was allowable or permissible, then of course by virtue of this provision in Sub -rule (2) of Rule 17 the limitation will be saved. Therefore the only question we have to examine is whether the court was acting within its jurisdiction when it allowed the amendment of the original execution petition by filing of an application which gave the list of properties belonging to the judgment -debtors against which the decree -holders wanted to proceed. This application for amendment was of course made after twelve years of the passing of the decree.;