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That the execution case be rejected."

4. It has not been disputed before me that the decree‑holder was directed to supply the full particulars of clause (f), namely of item No. 6 of the application for execution filed in Money Execution Case No. 3 of 1957 and from Order No. 5 as stated above it appears that as no step was taken to supply the parti culars as required by clause (f) of sub‑rule (2) of rule 11 of Order XXI, the Execution Case No. 3 of 1957 was rejected. It does not appear from the records that any notice under Order XXI, rule 22 of the Code of Civil Procedure was issued and served on the judgment‑debtor. It has been contended that the failure of the decree‑holder to supply the particulars for which the Money Execution Case No. 3 of 1957 was rejected was in violation of the mandatory provisions of rule 11 of Order XXI of the Code and as such the application that was filed on 2nd of January 1957 was not an application in accordance with law as enjoined by clause (5) of Article 182 of the Limitation Act and that such appli cation not being a step in aid of executing the present execution case is barred by limitation. For this proposition of law reliance has been placed on the case of Bhupendra Naraian v. Janeswar Mander and another (A I R 1926 Pat. 533), the case of Midnapur Zemindary Company, Ltd. v. Dinanath Sahu and others (22 C W N 766) and the case of Rafatulla Farzi v. Kundarmal Agarwala and another (38 C W N 1144).

5. While on the other hand it has been contended by Mr. Bhattacharjee, the learned Advocate for the respondents, that the failure to supply the particulars in the present case was not hit by the mandatory provisions as the same was in respect of same minor particulars and as such the application that was filed in Money Execution Case No. 3 of 1957 was in accordance with the provisions of the Code of Civil Procedure and Article 182 of the Limitation Act. In support of this contention reliance has been placed on the case of Tadinada Abdul Khorim Saheb v. Pula varti Lakshmanaswami (A I R 1928 Mad. 440), the case of (Srimati) Saudaui Ghose v. The Jessore Registered Loan Co. Ltd. (A I R 1926 1146) and the case of Pro sonna Kumar Chakrabutty v. Jotindra Nath Bose (71 I C 1054).

6. In the first case mentioned above and relied on by Mr. Bhattacharyya, the facts were that when an application was presented to the executing Court, the Court acting under order XXI, rule 17, sub‑rule (1) returned the same for amendment as various particulars required by the rule 11 were not furnished. The petition was not returned for amendment within the time given but was presented after the expiry of the time. Wallace, J. held:

" . . It must be held that the defects in this case were not material and therefore do not avail to make the application even its original state one not in accordance with law." Thiruvenkatachariar, J. held: "It seems to me that the object of the Legislature in enacting in sub‑rule (2) of rule 17 an application amended as required by the Court shall be deemed to be one in accordance with law is to preclude any question being raised by the judgment‑debtor as to its validity at a later stage of the execution proceedings in the same case. Except to that extent I do not think sub- rule (2) was intended to or has the effect of altering the law as it stood at the time when it was enacted. In this view when an application for execution of the decree is returned for amendment on the ground that it does not comply with the requirement of rule 11, Order XXI, but the application is not amended and presented to the Court within the time fixed by it, the question whether it was in accordance with law will depend upon whether the defects were material or only trivial and such as could not mislead either the Court or the judgment -debtor. A mere non‑compliance with the order of the Court directing amendment cannot in my opinion have the effect contended for on behalf of the appellant as resulting by impli cation from sub‑rule (2), rule 17, viz., that such application must be deemed to be not in accordance with law." "Apart from a few exceptions, none of which touches the present case an application to take a step‑in‑aid of execution necessarily presupposes a pending application for execution and no application for execution of a decree can be held to be pend ing if the application is not admitted but rejected on the ground of non‑compliance with the requirements of rule 11." In the second case relied on by Mr. Bhattacharyya there was an omission to supply the particulars as provided by sub‑clause (f) of clause (2) of rule 11 of Order XXI of the Code. In those circumstances Cuming, J. held: "I do not think that every omission in an application for execution is necessarily a material irregularity such as would vitiate the execution proceeding. Whether an omission is or is not material will depend on the particular facts of the particular case. The fact that the judgment‑debtor never took this objec tion in the executing Court will go at once to show that the omission was not a material one."

7. In the third case relied on by Mr. Bhattacharyya there were several applications for execution of a decree. In the third application the date of disposal of the first application was stated but not that of the second though the numbers of the execution cases were stated. It was held that the defect was not material so as to vitiate the application for execution, on the view the omission mentioned in the application was not a material defect.

8. In the first case relied on by Mr. Mofakher we find the following passage: "The application, however, was defective in very many ways ; the heading was blank and so was column 8, column 6 was not correctly entered and no list of the properties sought to be sold was given. Sheet No. 2 was blank and there is no copy of the decree attached to the application ; column 10 did not show a clear statement of the petition, the names of the decree- holders were not given. The Munsif passed an order on the 13th November 1923." In those circumstances, Adami, J., held that the application was barred by limitation.

9. In the second case relied on by Mr. Mofakher, a rent decree was obtained on the 4th June 1911 and an application for execution was filed on the 6th March 1914 and the sale took place on the 25th April 1914. On the application of the judgment debtor, the sale was set aside on the 16th September 1914 and on the 28th September, the execution case was dismissed. There after on the 16th February 1916 the decree‑holder filed a fresh application for execution. In those circumstances it was held that the application for execution made on the 16th February 1916 was time‑barred under clause (6) of Schedule III of the Bengal Tenancy Act ; that the previous application ended with the order of the 28th September 1914 and there was no continuity between that application and the application made on the 16th February 1916.

10. In the third case relied on by Mr. Mofakher, an applica tion for execution was prima facie beyond time by 13 days. On receipt of that application, the Court directed the decree‑holders to show cause why the application should not be held time‑barred. One of the decree‑holders was examined and the Court passed the following order, ex parte, that the "Limitation had been prima facie proved" and issued notice to the judgment‑debtor to show cause why the execution should not be proceeded with against him. On the date fixed neither the judgment‑debtor nor any of the decree‑holders, appeared on the execution case was dismissed. In a subsequent application for execution of the decree, objection was taken that the application for execution was time‑barred. In those circumstances it was held that it was open to the judgment debtor to raise such a plea.

11. From the above decision relied on by Mr. Bhattacharyya, it does not appear that the provisions of sub‑rule (2) of rule 11 read with rule 17 of Order XXI of the Code of Civil Procedure are not mandatory but in certain circumstances, when omission to supply certain particulars is not material, in that case, the appli cation filed for execution of the decree will be in accordance with the provisions as prescribed by Article 182 of the Limitation Act.

12. Now coming to the provision of sub‑rule (2) of rule 11, we find the word "shall" but in sub‑rule (3), we find the word "may". So there has been a distinction maintained by Legislature between the words "shall" and "may". Furthermore, it appears from the clauses under sub‑rule (2) that there are many particulars in the absence of which it is not possible to proceed with the execution case. From sub‑rule (1), rule 17 of Order XXI of the Code, we find the following provision: "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 applica tion, or may allow the defect to be remedied then and there or within a time to be fixed by it." Sub‑rule (4) of rule 17 is that after the preliminaries when an appli cation is admitted, the Court shall enter in the provided register a note of the application and the date on which it was made, and shall subject to the condition order execution of the decree accord ing to the nature of the application : So after going through the aforesaid provisions in rules 11 and 17, I am of opinion that the provisions of sub‑rule (2) in respect of the particulars to be entered into an application for execution are mandatory.

13. In the case of Govind Prasad and another v. Pawan kumar (47 C W N 715 (P C)), it was observed by their Lordships of the Judicial Com mittee in connection with rule 14 that the provisions in that rule not mandatory but the provisions in rule 13 are mandatory inas much as under rule 14 of the Court may require the applicant to produce a certificate etc., but rule 13 provides that the application for attachment of an immovable property belonging to the judg ment‑debtor shall contain at the foot a description of such property sufficient to identify the same.

14. Now the question is whether the particulars not given in column 6 of the application made, or in other words as provided by clause (f ) of sub‑rule (2) of rule 11 are material or not. In the cases relied on by Mr. Bhattacharyya, the learned Advocate for the respondent, it was laid down that the question whether the application was in accordance with law depended upon whether the defects were material or only trivial and such as could mis lead either the Court or the judgment debtor. Here in the present case apparently the application filed in Execution Case No. 3 of 1957 was beyond more than three years from the Execution Case No. 149 of 1953. The decree‑holders did not supply the full particulars as enjoined under clause (f) of sub‑rule (2) of rule

11. The decree‑holders were asked to supply the particulars but they did not and as such the application was rejected. In my opinion the application in Execution Case No. 3 of 1957 apparently being beyond three years from the Execution Case No. 149 of 1953, it required investigation whether that application filed in Execution Case No. 3 of 1957 was within time or not. Hence the particulars, in my opinion, were material and as the mandatory provision of sub‑rule (2) of rule 11 of Order XXI was not complied with, the application that was filed in Execution Case No. 3 of 1957 was not in accordance with law as provided by clause (5) of Article 182 of the Limitation Act. Hence the present application is barred by limitation.

15. The learned Additional Subordinate Judge was of opinion that the question whether the present application is barred by limitation or not could not be agitated. He relied on the decision in the case of Gulappa bin Rudrappa Ershetti v. Erava kom Basan gouda Patil and others (I L R 46 Bom. 269). I cannot accept the view taken by the learned Additional Subordinate Judge inasmuch as it does not appear that any notice under Order XXI, rule 22 of the Code of Civil Procedure was issued on the judgment‑debtor when the application in Money Execution Case No. 3 of 1957 was filed or in a later case before the present case under investigation. The question whether the application that was filed in Money Execu tion Case No. 3 of 1957 was in accordance with law as provided by clause (5) of Article 182 of the Limitation Act and a step‑in‑aid of execution can be investigated in the present case in the circum stances as stated above.

16. The appeal is accordingly allowed, the judgments and orders passed by the Courts below are set aside and the objection under section 47 of the Code of Civil Procedure is allowed and the execution case is rejected. In the circumstances of the case, I make no order as to costs. S. B./K. B. A. Appeal allowed.