DAVE, J. - (1.) THIS is the second appeal by the judgment-debtor in execution proceedings. The main question raised by the appellant is one of limitation. In order to appreciate the point involved, it will be proper to set out briefly the facts which have given rise to this appeal.
(2.) THE respondent obtained a decree on 22. 3. 50 and presented an application for execution on 6th April, 1951. This was the first application for execution and it was dismissed on 31-12-52, on account of the decree-holder's failure to deposit expenses for notice to the judgment-debtor. He presented another application on 4. 5. 55 but it was also dismissed in default on 18. 1. 56. THEreafter, he presented a third and the last application on 19. 3. 56. When the judgment-debtor appeared in response to the notice issued to him, he raised an objection that this (last) application was barred by limitation. This objection was, however, dismissed by the court. He went in appeal and the learned District Judge, Ajmer, dismissed the appeal on 13. 3. 57, and so, he has approached this Court. Learned counsel for the appellant has urged that the second application presented by the respondents on 4. 5. 55 was not in accordance with law, since the respondent had left column No. 10 thereof totally blank and no mention was made about the mode in which the execution of the decree was sought. It is urged that the second application could not therefore be taken as a legal step in aid of execution and that the third application was time-barred from the date of the first application. It is also pointed out that this point was completely covered by a decision of this Court in Roop Chand Vs. Loob Chand (1), and that although this decision was not brought to the notice of the two courts below, their decision is incorrect in so far as it goes against the decision of this Court. Learned counsel for the respondent has very candidly conceded that the view taken by this Court in Roop Chand's case (1) goes against his client but it is submitted by him that it needs to be revised. It is contended by him that although according to O. 21, R. 11 CPC, it is necessary for the decree-holder to mention in his tabular application one or more of the modes in which the assistance of the court is required under sib-rule 2 (j ), this defect is only formal and technical and, therefore, even in its absence, the application should be taken as a proper step in aid of execution. In support of his argument, learned counsel has referred to Jugalkishore Saraf Vs. M/s. Raw Cotton Co. , Ltd. (2 ). Before examining the authority on which reliance is placed by learned counsel for the respondent, it would be proper to point out that in Kalu Ram & Ram Sahai Vs. Mst. Gyarsi (3) it was held that "the words in accordance with law" (appearing in Art. 182 (5) of the Limitation Act) apply as much to an application for taking a step in aid of execution as to an application for execution itself. " In that case, an application for execution was made against the judgment-debtor who was dead before the application for execution was presented and it was held that it was not an application in accordance with law and it could also be treated as a valid step in aid of execution for computing the period of limitation. It was further held following Ram Gopal Sri Ram Vs. Ram Gopal Bhutada (AIR 1934 Bom. 307) that "in order to see whether a particular application for execution is or is not in accordance with law, what has to be looked to in each particular case is whether the executing court would or would no: issue execution on the application for execution as preferred to it. " This view was followed in Buch Raj Vs. Gumna (4 ). It was in consonance with the views expressed in these two cases that it was observed in Roop Chand's case (1) that where a decree-holder totally fails to mention in his application the mode in which the assistance of the court is required, the executing court will not be able to execute the decree. I have given my earnest consideration to the arguments raised by learned counsel for the respondent and, even now, I think that the executing court will not be able to proceed with the execution of the decree unless the decree-holder mentions in his application the mode in which the assistance of the court is required under O. 21, R. 11 (2) (j ). This Cl. (j) lays down the various modes in which the assistance of the Court may be required and therefore the decree-holder should specify whether he wants the satisfaction of the decree (1) by the delivery of any property specifically decreed; (2) by the attachment and sale, or by the sale without attachment of any property; (3) by the arrest and detention in prison of any person; (4) by the appointment of a receiver; or (5) otherwise, as the nature of the relief granted may require. Now, unless the decree-holder discloses his mind and requests the court that it should proceed in one or more of the modes pointed out above, it is not possible for the court suo motu to execute the decree according to its own choice. It is contended by learned counsel for the respondent that there are certain particulars which are material and others which are not material and so long as the defect in the application is not of a material nature, the court should take the application as one in accordance with law. I agree with the learned counsel that the procedure is a handmaid to justice and the litigants should not be allowed to suffer on account of technical defects. But at the same time, it would not be proper to completely ignore the essentials of the procedural law otherwise it would be honoured only in its breach and would become a dead letter. In my view there are some particulars which are most essential and which must appear in the application. Some of the essentials of the execution application, besides the signature of the applicant are : - (1) the names of the parties, (2) the date and substance of the decree and (3) the node in which the assistance of the court is required for the satisfaction of the decree. I find it difficult to agree with learned counsel that the requirements of cl. (j) are not material in order to determine whether the application is in accordance with law. Learned counsel has referred to Jugal Kishore Saraf's case (2) in support of his contention, but a close examination of the judgment delivered an that case would show that it does not in my opinion support it to the extent pointed out by learned counsel. In that case, the decree-holder had obtained a decree on 15-12-49. The assignees of the decree-holder presented an application for execution on 25. 4. 51 and in its last column it was simply mentioned that the Court "be pleased to declare the applicants the assignees of the decree as the decretal debt along with other debts had been transferred by the plaintiffs to the applicants by a deed of assignment dated 7. 2. 1949 which was confirmed by the Custodian of Evacuee Property, Bombay, and order them to be substituted for the plaintiffs. " The applicants failed to mention the mode in which the assistance of the Court was required for execution of the decree, but the main point which was raised in that case was whether the respondents (assignees) were the transferees of the decree within the meaning of O. 21, R. 15, and it is this question which has been mainly dealt with in the judgment. It appears that it was only in the end that it was also urged by the appellants before their Lordships that the application for execution was defective inasmuch as it did not comply with the requirements of O. 21, R. 11 and did not specify anyone of the several modes in which the assistance of the court was required. Adverting to this argument, it was observed by his lordship S. R. Das J. that "the application was undoubtedly defective as the decision in the case of 'radha Nath Das Vs. Produmna Kumar Sarkar', ILR (1939) 2 Cal. 325 (26) and" Krishna Govind Vs. Moolchand Keshavchand', AIR 1941 Bom. 302 (FB) (27) will show but this objection was not taken before the execution court which could then have returned the application, nor was any objection taken by the appellant at any later stage of the proceedings. Further, it appears that the respondent company actually presented another tabular statement for execution specifying the mode in which the assistance of the Court was required. In these circumstances, it is not open to the appellant to contend that the application is not maintainable". It may be pointed out that it was held by his Lordship in clear terms that the application was "undoubtedly defective" on account of the noncompliance of the rule inasmuch as it was not expressed by the decree-holder in what manner the assistance of the court was required. His lordship dismissed this objection against the assignees of the decree-holder, because they had presented another application which was in accordance with law before the first application was dismissed and therefore the defect. was removed by the second application. Moreover, the second application which was presented on 27. 3. 52 was also within time. It cannot be predicted from this judgment as to what would have been the view of their Lordships if the first application for execution were dismissed and the second application were presented 3 years after the date of the first application for execution. Another argument raised by learned counsel for the respondent is that after his client presented the execution application on 5. 5. 55, he was given time by the executing court on 22-12-55 to file a copy of the decree and therefore the period of limitation should be computed from that date. It is contended that his clients' oral application for allowing him to file a copy of the decree was a step in aid of execution. In support of his argument, learned counsel has referred to Haridas Nanabhai Gujrati Vs. Vithaldas Kishandas Gujrati (5 ). In that case, it was held by the learned Judges that an application for time made by the decree-holder for obtaining a copy of the decree was a step-in-aid of execution, but even this case is not helpful to the learned counsel inasmuch as his client's original application for execution was not in accordance with law. If the application for execution presented by the decree-holder is in accordance with law and if during the pendency of that application, a further step in aid of the execution is taken by the decree-holder, as was done in the case (5) cited above, it is a different matter, but in the present case the original application for execution was itself not in accordance with law and therefore the decree-holder's request for time to file a copy of the decree could not further his cause. Moreover he failed to file the requisite copies of his application was dismissed with all its defects uncured. Thus there was no step in aid of execution in accordance with law. It now remains to examine a few more cases which have been referred to by learned counsel for the respondent. The first amongst such cases is Rama Vs. Varada (6 ). In that case, the decree-holder made an application for execution but he omitted to state the earlier of two previous applications that had been made and its result. It was therefore returned to him for amendment. When he presented another application it was urged that the previous application was defective and the second application was barred by limitation. It was observed by the learned Judges that they were unable to hold if the application was not an application made in accordance with law. It would suffice to observe with regard to this case (6) that the learned Judges did not examine the question at length and were content with referring to a: previous decision of that court. It appears that the learned Judges took this view on the ground that the defect in the previous application was only formal and not material and therefore it substantially complied with the law. It need hardly be repeated that in the present case the previous application of the respondent suffered from a material defect which has already been pointed out above and therefore this case is not helpful to the respondent. Learned counsel for the respondent has next referred to Ram Lal Vs. Udit Narain Singh (7 ). In that case, an oral application made by the decree-holder for issuing a warrant of attachment against the property of the Judgment-debtor was held as a proper step in aid of execution, but it may be observed that this remark has also to be understood in the context of the facts of that case (7 ). It appears from the perusal of the judgment that the main application for execution which was presented before the court was in accordance with law and it was during the pendency of that application that a further oral request was made by the decree-holder. In the present case, the decree-holder's application was from the very beginning not in accordance with law and therefore a mere request on his part to allow him time for filing a copy of the decree could not be taken as a step in aid of execution, because even if he had filed such a copy within the time allowed to him although he did not care to comply even with that order - his original application could not be said to have been made in accordance with law.
(3.) THE last lease relied upon by learned counsel for the respondent is Balaji Vs. Gopal (8 ). In that case, the decree-holder had simply made an application for rateable distribution of the sale proceeds of the debtor's property which was attached in execution of another decree. A question was referred to the Full Bench whether such an application could be taken as valid application for execution within the meaning of O. 21, R. 11 C. P. C. and whether the view expressed in Dwarkadas Vs. Ghasiram (A. I. R. 1921 Nag. 5) was too narrow. THEir lordships answered the reference in the negative and it was held that the view taken in Dwarkadas' case was correct. In other words, it was held by the learned Judges that a mere application for rateable distribution could not be taken as a valid application for execution within the meaning of O. 21, R. 11 C. P. C. Learned counsel wants to take the advantage of a passing remark which was made by the learned Judges in Balaji's case (8) to the effect that an application for rateable distribution may be considered as a step in aid of execution so as to save limitation. I have carefully gone through Balaji's case (8) and in my opinion this remark was made by the learned Judges simply because learned counsel who was arguing the case wanted to take analogy from Art. 182 of the Limitation Act. THE learned Judges while considering that argument observed that the point seemed to be one of difficulty, but it was not helpful to the decree-holder in establishing that an application for rateable distribution would be taken as a proper application for execution of the decree. It was in that connection that the learned Judges made a reference in passing that even though it may be considered a step in aid of execution so as to save limitation, it could not be considered as an application for execution made in accordance with law. THE learned Judges did nor examine the question from the point of view of limitation at length. Moreover, the observation of the learned Judges was obiter inasmuch as the question of limitation did not directly arise in that case. THErefore, Balaji's case (8) is also not helpful to the respondant. I, therefore, see no reason to change the view which was taken by this Court in Roop Chand's case (1 ). The decision of the courts below cannot stand in the face of the said decision. The appeal is, therefore, allowed. The decree of the learned District Judge, Ajmer, dated 13. 3. 57 and that of the 2nd Additional Sub Judge, Ajmer, dated 10. 7. 56 are hereby set aside and the execution application of the respondent is dismissed as being barred by limitation. In view of the fact, however, that Roop Chand's case (1) was not cited before the courts below, the parties are left to bear their own costs throughout. Learned counsel for the respondent wants leave for appeal to a division bench, but since this case does not decide a new question of law and the matter was already concluded by the decision of this Court in Roop Chand's case (1) leave sought for is refused. . ;