- (1.) THIS is a second appeal by the judgment-debtor in execution proceedings.
(2.) THE respondent Gumna and three others obtained a decree against the appellant Buchraj on 31st of March, 1936. THE appellant was then a minor and was represented by a guardian named Devichand. On 12th of January, 1942, that decree was put in execution against Buchraj but his guardianship was mentioned to be of his mother and not of Devi-chand. THE execution proceedings did not fructify as on the 8th of April 1942, the decree-holder made a statement that he could not lay his hands on any property of the judgment-debtor. On 5th of April, 1948, an application for execution of the decree was filed in which this appeal has arisen. By this time Buchraj had become major and an execution was sought against him. Buchraj made an objection on 4th August, 1948, that the previous application dated 12th January, 1942, being not in accordance with law, the present petition filed on the 5th of April, 1948, should be held to have become barred by time. THE objection was upheld by the Munsiff of Sanchore but on appeal the learned Civil Judge of Balotra set aside that order and held the execution application to be within time. Hence this second appeal. It is contended by learned counsel for the appellant that a guardian ad litem appointed in the suit continues to represent the minor till the execution of the decree as is specifically provided in O. XXXII, R. 3 (5) C. P. C. The guardian who had been appointed by the court was Devichand in the course of the suit and, therefore, the application for execution of the decree filed on 12th of January, 1942. in which the guardianship of the minor was not shown to be of Devichand but of his mother was incompetent. Learned counsel relied on Sami Chattiar vs. Sesha Iyer & Co. (1) (1928 Madras 1057.) where it had been observed that "when minors are before the Court, the Court is bound to see that the minors are represented by a guardian ad litem and when there is a guardian ad litem the court is not entitled to treat some other person as the guardian of the minors and to pass any order for or against the minors. It is not merely a question of form; it is a question of substance. " A few lines later it was further observed that "where a guardian is appointed by the court itself, the court is not justified in treating somebody else as guardian and proceed either with the suit or with the proceeding after it. " These observations are not relevant in this case, as any proceedings that may have taken place against the minor when his mother was mentioned as guardian instead of Devichand are not being questioned. It may be that the minor may be in a position to contest the validity of proceedings that may have taken place affecting his interests while he was not represented by Devichand who had been appointed guardian by the court. The point in this case is a very simple one and it is this: whether the application dated 12th of January, 1942, was in accordance with law as found by the lower court. The decree as prepared by the court mentioned the guardian of the minor Buchraj to be his mother, and according to the decree-holders, this fact led to their making the execution application against the minor with his mother as his guardian. The application being in accordance with the decree, it could not be said to have been not in accordance with law. Learned counsel for the respondent cited Jaganatha Rao vs. Narayanmurthy (2) (A. I. R. 1933 Mad 696.), Pralhad Pundalik vs. Mohanlal Bhawanilal (3) (A. I. R. 1936 Nag. 77.) and Puran Mali vs. Mt. Dilwa (4) (A. I. R. 1924 Pat. 333.) wherein it has been held that even if an execution petition be filed against a minor mentioning his guardian a person who had died in the meanwhile, the application will be in accordance with law. But those authorities are based on the view that an execution petition filed against a dead person, if bonafide, would be in accordance with law. Reliance was placed on Samia Pillai vs. Chocka-linga Chettiar (5) (I. L. R. XVII Mad. 76. ). That view has, however, been dissented from in a decision of this court, Kaluram vs. Mst. Gyarsi (6) (1951 R. L. W. 265. ). In Kaluram's case, there is a reference to the observations made in Ramgopal Shriram vs. Ramgopal Bhutada (1) (A. I. R. 1934 Bombay 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 execution court would or would not issue execution on the application for execution as preferred to it. The expression "in accordance with law" in Art. 182 (5) should be taken to mean that the application though defective in some particulars was one upon which execution could lawfully be ordered. " With great respect I agree with those observations. In the present case, therefore, what we have to see is whether execution could issue on the petition as presented on 12th of January, 1942. That petition being in accordance with the decree as passed there is no doubt that the court could issue process for execution, and as a matter of fact, a notice under O. XXI, R. 22 was issued by the court. The lower court has also relied upon Debi Baksh vs. Shambhu Dial (2) (A. I. R. 1926 Allahabad 384.) in holding the application in accordance with law. In that case also by some mistake, the judgment-debtor's name was mentioned to be some person other than against whom the decree was intended to be passed. The application for execution filed against the wrong person was held to be in accordance with law while considering its effect on a subsequent application filed against the right judgment-debtor. It seems to me that the application of 12th January, 1942, having been presented according to the terms of the decree as made out must be held to be in accordance with law. On that view the subsequent application dated 5th April, 1948, which has given rise to this appeal, is within time. Learned counsel for the appellant tried to argue that as the list of property intended to be attached was not filed along with the application of 12th of January, 1942, execution proceedings could not have been started and, therefore, the application was not in accordance with law on that score also. The provisions of the Civil Procedure Code, however, as to the form of application, are mentioned under O. XXI, R. 11, and do not make it necessary that a list of the property should be filed. What is required is that the decree-holder should intimate to the court in what manner assistance was required for execution of the decree. This requiremet was fulfilled in the present case; however crude may have been the request. On this point also, the application dated 12th of January, 1942, cannot be said to be not in accordance with law. As a result, this appeal fails and is dismissed with costs. .;