Dave J. - (1.) THIS is second appeal by the decree-holder in execution proceedings.
(2.) THE facts giving rise to it are that the appellant got a decree against the respondent on 22nd of March, 1945. He presented an application for execution on 2nd of April, 1947. Notices were issued to the respondent and the case was fixed for 17th of May, 1947. THE respondent was not served and, therefore, direction was given to issued fresh notice to him and the case was adjourned to 26th of June, 1947. On this date the decree-holder failed to put in his appearance and, therefore, the execution application was dismissed for default. THE decree-holder then presented another application on 17th of June, 1950 This time the judgment debtor put in his appearance and contested the execution application on the ground of limitation. It was urged that the decree-holder's first application, dated 2nd of April, 1947 was not in accordance with law and that it could not be treated as a step in aid of execution and, therefore, the application dated 17th of January, 1950 was barred by Art. 182 of the Indian Limitation Act. This objection was allowed by the court and the application was dismissed. THE decree holder went in appeal but the Senior Civil Judge, Sirohi dismissed the same and hence he has come here in second appeal. The respondent's counsel took a preliminary objection that the second appeal did not lie because the suit was of a small cause nature and, therefore, the appeal was barred by sec. 102 of the Civil Procedure Code. In reply, it was pointed out by the decree-holder's learned counsel that in the Civil Procedure Code which was in force in the former Sirohi State, sec. 102 was specifically deleted and since the new Civil Procedure Code came into force on 24th of January 1950, the objection raised by the respondent's counsel was not correct. Learned counsel for the respondent has concerned after looking into the Civil Procedure Code which was applicable in Sirohi State before the 24th of January, 1950, that there was no provision in that Code corresponding to sec. 102 of the Civil Procedure Code. The preliminary objection is,therefore,dismissed as withdrawn. Learned counsel for the appellant has urged that the only defect in the first execution application, dated 2nd of April, 1947, was that the requirement of Order XXI, Rule 11 (2) (j) of the Civil Procedure Code was not fulfilled inasmuch as it was not mentioned as to how the decree was to be executed against the judgment-debtor; but it is urged that since the application was registered by the court without any objection and processes were ordered to be issued against the judgment-debtor, it could not be said that the application was not in accordance with law. It is contended by learned counsel that according to Order XXI, Rule 17, it is the duty of the court to check up the application and find out if it is defective in any manner the decree-holder should be allowed to remedy the defect either then and there or within a time to be fixed by the court. It is urged that since the court did not point out any defect to the decree-holder but registered it and issued process to the judgment-debtor, it should be taken that the application was considered as one in accordance with law and the judgment-debtor's objection was, therefore, incorrect. I have given due consideration to this argument, but in my opinion, it is not sound. It is true that Order XXI Rule 17 requires that on receiving the application for execution, the court must ascertain whether requirements of Order XXI. Rules 11 to 14 have been complied with and if it finds that they have not been complied with, then there are two alternatives open to the court. One alternative is to reject the application and the other course which is more just is to point out the defect to the petitioner and allow him to remove the defect either forthwith or within a time which may be fixed by the court. This does not, however, take away the judgment-debtor's right to point out the defect, if any, left out by the decree-holder even though it may not have been noticed by the court. An application which is not in accordance with law and which is defective on account of the non-compliance of the requirements of the rules pointed out above would not become an application in accordance with law simply because it is registered by the court or notices are issued to the judgment-debtor. Since the judgment-debtor has raised the question that the appellant's application was not in accordance with law, this Court will have to determine that point irrespective of the consideration that the appellant's previous application was registered by the court. In the case of Kalu Ram and Ram Sahai vs. Mst. Gyarsi (1), it was held by a Division Bench of this Court after reviewing several decisions of other High Courts that in order to see whether a particular application for execution is or is not "in accordance with law," what has to be looked into each particular case is whether the executing court would or would not issue execution on the application as preferred to it. The expression in accordance with law should be taken to mean that the application though defective in some particulars is one upon which execution could law-fully be ordered. The same view was reiterated in Buchraj vs. Gumna (2 ). We have, therefore, to see whether the executing court could or could not issue execution on the application which was presented to it on the 2nd of April, 1947. ft may be pointed out that O. XXI, Rule 11 (2) (j) provides that an application for execution must contain the mode in which assistance of the court is required. It further lays down five modes and, therefore, it is incumbent upon the petitioner to make it clear in which manner he requests the court to execute the decree, that is, whether by means of delivery of property or by its attachment and sale, or by arrest and detention of the judgment-debtor, or by the appointment of a receiver or otherwise as the nature of the relief granted may require. Unless the petitioner specifies someone of the modes pointed out above, it may not be possible for the executing court to execute the decree. If the decree-holder fails to comply with the provisions of this clause, then it cannot be said that his application was in accordance with law. Learned counsel for the appellant has referred to Sundar Singh Hira Nand vs. Khilanda Ram (3), but in that case, the defect in the petition was that of the absence of the signature and verification by the decree-holder. He has next referred to Pulin Behari Das vs. Syed Reasat Ali (4 ). In that case also, the defects lay in not mentioning the correct number of the suit and in giving incorrect amount for which the decree was passed. It was held that the defects were not material. In that case, it was further found that the judgment-debtor had taken no steps to have the order for registration set aside. It is obvious that the case is easily distinguishable because the defects pointed out were formal. The execution of the decree could be made and further the judgment-debtor was also not vigilant. The next case relied upon is Gendmal Amolak chand Marwari vs. Laxman Tanba Krushna-pakshi (5 ). This case is also distinguishable because the decree-holder had by mistake asked for a relief for possession although it was a decree for partition. It was not a case of total absence of the relief which can be asked for by the decree-holder. Learned counsel has not been able to cite a single case in which the decree-holder may not have asked for any relief in his execution application as was done in this case. Learned counsel has next urged that even if the appellant's application be not held in accordance with law, it should still be taken as a step in aid of execution of the decree. In support of his contention, he has referred to Odhavji Anandji vs. Haridas Ran-chhor Das (6) In that case, the decree-holder had written in the column about the mode of execution, the following words: "by issuing a notice under Order XXI, Rule 22 of the Civil Procedure Code". It was held that the application containing the said words was not irregular and that it should be considered as a proper application as required under Order XXI, Rule 11. It may be pointed that this view was changed by the same learned Judge in a subsequent case, Vallabhdas Narandas vs. Kantilal G. Parekh (7) with the following observation : - "in my opinion therefore, the practice hitherto followed in the Prothonotary's office of permitting the statement *'by the issue of a notice under O. 21, R. 22" in col. (j) of O. 21, R. 11 (2), is not supported by authority and is wrong. The words of O. 21, assume the existence of an application for execution, which is assumed again to be in accordance with O. 21, R. 11, read if necessary with O. 21, R. 17. When such an application for execution is made, the Court has to scrutinise whether it is made within a year of the previous application. If it finds the same to be beyond that period the Court directs a notice to issue. That notice the Court may make absolute, after hearing the parties. Although the application for execution is on file the decree-holder does not get the relief through the assistance of the Court. The Court directs the issue of a notice. In my opinion, therefore, the issue of a notice under Order 21, Rule 22, is not a mode of execution and is not a relief which a party asks as awarded by the decree. He has to wait because he has come to Court one year after the previous order or execution. This is made clear again by the words of R. 22. On proper grounds being shown the Court can dispense with the issue of that notice. This clearly indicates that it is not a mode of execution or enforcement of the decree. It is a hurdle which the decree-holder has to cross or which obstruction is removed by the special order of the Court, before he obtains the relief awarded to him by the decree. The judgment in 45 3om. L. R. 400 to the execution which contains in col. (j) the words "by the issue of a notice under O. 21,r. 22" is a proper application as prescribed by O. 21, R. 11, is erroneous. On the other hand, the learned Judges of the Bombay High Court had in an earlier case Sha Karamchand Gokaldas vs. Chelabhai Chakaldas gone so far to say that an application in which the decree - holder had prayed that the defendants be ordered to act as directed by the decree was not in accordance with law as it did not specify the mode in which the assistance of the court was sought Thus, there is no authority in favour of the appellant and I do not think that the courts below have taken a mistaken view of law. The appeal is, therefore, dismissed with costs. . ;