Dave, J. - (1.) THIS is a second appeal by the decree-holder in execution proceedings. The amount of the decree is very small but in view of an important point of law which is involved in the case the decree-holders have approached this court and since there are conflicting views of the different High Courts it has been placed before a Division Bench. The point for determination is whether an application for execution against a judgment-debtor, who was dead at the time it was made, can be considered to be one in accordance with law within the provisions of Article 182 (5) of the Indian Limitation Act.
(2.) THE decree, which the appellants seek to execute, is dated the 15th November, 1943. THEy presented their first application for execution on the 28th March 1944. It was dismissed on 18th June 1944. THEy presented another application on 29th January 1946 but it was also dismissed on 8th March of the same year. THEn they filed another application on 30th March 1948 and the present appeal arises out of the same. The first two applications were made against the judgment-debtor Pura. In the last application, his widow Mt. Gyarsi was substituted in his place and she raised an objection that her husband had died on Bhadon Badi 8, Smt. 2001 corresponding to nth August 1944, that more than three years had elapsed since the dismissal of the first application and the second application being made when her husband was already dead, it was of no avail to the decree-holders for extending the period of limitation. The Munsif, Sawai Jaipur, allowed her contention and dismissed the decree-holders' application on the ground of limitation. On appeal by the decree-holders, the District Judge affirmed the same view and hence this second appeal. The appellants' advocate contends that the presentation of the application on the 29th January 1946 by his clients was made under a bona-fide though mistaken belief that Pura was alive on that day, and that the application should therefore be considered as a proper step-in-aid of execution of the decree. In support of his contention he has referred to I. L. R. 17 Mad. 76, A. I. R. 1949 Mad. 348, 1933 Cal. 684, 1934 Lah. 55, and 1932 Pat. 222. The respondent's advocate on the other hand argued that both the parties are residents of a small village, that it is impossible to believe that decree-holders were unaware of Pura's death on the 29th January 1946, that the mistake committed by him was not bonafide but was due to his gross negligence or carelessness, that an application against a dead person being a nullity it could not be treated as a legal step-in-aid of execution and his last application was therefore rightly dismissed by the courts below. He relies on A. I. R. 1943 All. 463 and 1944 Nag. 145. It is apparent from a perusal of these cases that there is a strong difference of views between different High Courts referred to above. I. L. R. 17 Mad. 76 was pointedly referred to in A. I. R. 1934 All. 463 and 1944 Nag. 145, but it was not followed. Similarly, A. I. R. 1944 Nag. 145 was referred to in A. I. R. 1949 Mad. 348 but the learned Judges of that High Court considered it proper to stick to the view of their own High Court expressed in I. L. R. 17 Mad. 76. In I. L. R. 17 Mad. 76 it was observed by the learned Judges that "where there has been in fact an application for execution made by the party entitled to make it, the mere fact of a mistake having been made in giving the particulars required by sec. 235 of the Civil Procedure Code cannot, we think, have the effect of rendering the application, a nullity. " In A. I. R. 1949 Mad. 348 it was further observed by their Lordships that "a mistake due to negligence but honestly made is a bona fide mistake. " Thus in the view of the learned Judges of the Madras High Court, the bar of limitation saved, because the mistake on the part of the applicants was honest and bona fide. To my mind the question of bona fide mistake cannot arise in this connection, unless the courts are authorised to extend the period of limitation on that ground. For instance, sec. 5 of the Indian Limitation Act empowers a court to admit, even after the expiry of the period of limitation, appeals and certain applications if the party representing them satisfies the court that he had sufficient cause for not presenting them within the prescribed period. This section has not been made applicable to petitions covered by Article 182 of the Indian Limitation Act and, therefore, the court need not embark upon an enquiry whether the period has expired because of a bona fide mistake of a party or for some other reason. According to sec. 3 of the Limitation Act the courts have no option but to dismiss an application if it is presented after the period of limitation prescribed therefor. According to Article 182 (5) which is applicable to the present case the period of three years' limitation should be computed from " (where the, application next hereinafter mentioned has been made) the date of the final order passed on an application made in accordance with law to the proper court for execution or to take some step-in-aid of execution of the decree or order. " The only question for the court's determination should be whether the previous application for execution or for taking some step-in-aid of execution was made in accordance with law. If the court comes to the conclusion that it was not in accordance with law, then, in my opinion, it has no authority to extend the period of limitation in spite of the mistake being bona fide. For bona fide mistakes the law has already provided a remedy in Order 21 Rule 17 of the Civil Procedure Code which empowers the court to allow the defect to be remedied. It further provides that "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. " If a person does not avail of this provision and allows his application to be dismissed and the period of limitation to expire, then the court cannot help him according to the law as it stands. Coming to the view of the Calcutta High Court,it was observed in I. L. R. 35 Cal. 1047, that " where an application for execution has been made under the influence of a bonafide mistake against a wrong person, though that application could not be acted on, still it was an application in aid of execution ". So far as the question of bona fide mistake is concerned, the above argument need not be repeated again. In my view, the words " in accordance with law" apply as much to an application for taking a step-in-aid of execution as to To application for execution itself, na say, therefore, that an application not in accordance with law is still a good application as a step-in-aid of execution is an argument which does not appeal. In A. I. R. 1933 Cal. 684, which is the next case referred to by the applicants' advocate it was observed that'" the rule, that when a suit is filed against a dead person it is a nullity, does not apply to execution proceedings and therefore an application for execution presented against a judgment-debtor, dead at the time, in ignorance of his death is not bad. " In that case the execution application was amended in time according to law, and hence that decision cannot help the decree-holder. In A. I. R. 1924 Pat. 333 the decision was based on I. L. R. 17 Mad. 76 and I. L. R. 35 Cal. 1047 and since no other argument was advanced it need not be discussed again. A. I. R. 1932 Pat. 222 has no bearing on the present case, because the application therein was amended according to Order 21 Rule 17 of the Civil Procedure Code. In A. I. R. 1934 Lah. 55 also reliance was placed on I. L. R. 35 Cal. 1947 and the learned Judge concerned himself by adding that he had no reason to differ from that view. This case also therefore does not supply any further argument in support of the appellants. The decision of the Allahabad High Court in the case reported in I. L. R. 19 All. 337 and followed in A. I. R. 1934 All. 463 and in 1944 Nag. 145 lays down to my mind a sounder though a stricter view of law in this respect. A question no doubt arises here whether every mistake committed by a decree-holder in supplying the particulars required by Order 21 Rule 11 C. P. C. would make the application not in accordance with law. In A. I. R. 1934 Bom. 307 it was observed 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 execution court would or would not issue execution on the application for execution as preferred to it. The expression "in accordance with law" in Article 182 (5) should be taken to mean that the application though defective in some particulars was one upon which execution could lawfully be ordered. In my view, this supplies a correct test for the court to determine whether the application is or is not in accordance with law. In an application made against a dead judgment-debtor, it is obvious that the court cannot proceed to execute the decree unless the application is amended and the legal representatives are brought on record. An application for execution against a dead judgment-debtor cannot be considered to be in accordance with law so long as it is not amended. Since in the present case it was dismissed without any such amendment, it cannot help the applicants in extending the period of limitation and although the courts below have not referred to any authority, their order of dismissal of the petitioner's application is correct. The appeal is, therefore, dismissed with costs. . ;