P L D 1967 Dacca 512 (PLP)

S. M. MURSHED, C. J.‑This appeal by the defendant‑judgment- debtor arises out of an execution proceeding, and it is unnecessary for us to set out the details of the decree. The decree‑holder sought to enforce the decree obtained by him in a number of execution proceedings, which were dismissed one after the other. The last but one execution proceeding was marked as Execution Case No. 69 of 1953 and it was dismissed on the 31st of August 1954. Thereafter another execution proceeding, which has led to the present appeal, was started on the 28th of August 1957, being marked as Execution Case No. 38 of 1957. It is important to remember the last two dates. In respect of Execution Case No. 38 of 1957, a number of objections were taken by the judgment‑debtors on the ground, inter alia, that the execution proceedings were barred by the law of limitation inasmuch as the said proceedings were not started three years after the death of the sole judgment‑debtor although they were started within three years of the order that was passed in the previous execution proceeding, namely, the 31st of August 1954, when the aforesaid (previous) proceeding was dismissed, The executing Court, namely, the learned Munsif before whom the present proceedings were pending, held that the applica tion was within time and allowed the prayer in the execution proceedings in which the decree succeeded. On appeal the learned Subordinate Judge, who heard the appeal, allowed the same and reversed the finding and order passed by the learned Munsif. Thereafter the decree‑holder filed an appeal before this Court, which was marked as Second Miscellaneous Appeal No. 50 of 1959. The said appeal was heard and disposed of by Hasan, J., who allowed the same and granted leave to appeal under clause 15 of the Letters Patent. Hence this appeal. In this Court it was contended on behalf of the decree- holder respondents that if the execution proceedings were started at a time when the judgment‑debtor was alive, his subsequent death did not operate as abatement of the proceedings. Reliance was placed on the provisions of Order XXII, rule 12, of the Code of Civil Procedure. On this basis it was further argued that the order passed in execution proceedings, namely, Execution Case No. 69 of 1953, on the 31st of August 1954, was not a nullity and that it was a valid order in the eye of law. It was next argued that in the present case execution proceedings were started within three years from the date of the last order, namely, the 31st of August 1954. In answer to these contentions it was argued on behalf of the appellant (the substituted judgment‑debtor) that since the judgment‑debtor against whom the execution proceedings were sought to be enforced in Execution Case No. 69 of 1953, had died after the institution of the said proceedings, on the 12th of June 1954, the period of limitation would run from that date, namely, the date when the aforesaid judgment‑debtor died and not from the 31st of August 1954, because the order passed on the 31st of August 1954, being a void order would not constitute the starting point from which the period of limitation would run. But, is the order void? In this connection, we may say that there is a vital distinction between an execution proceeding and any other kind of suit or proceeding. Order XXII, rule 12, of the Code of Civil Procedure, specifically lays down that the formalities of sub stitution of a deceased party need not be observed in an execution proceeding. This obviously means that if execution proceedings are started against a judgment‑debtor who is alive, the said proceedings would not abate because of his subsequent death during the pendency of tae said proceedings. This principle seems to be welt‑settled and is supported by authorities referred to in the judgment pronounced by Hasan, J., and various other authorities which we need not discuss here. The next and last point, which is raised in this appeal is, whether an amendment is permissible in an execution proceeding. To us it seems clear that there is no embargo upon granting of an amendment in execution proceedings. This proposition has been fully enunciated and discussed in the case of Nourangilal Marwari v. Sm. Charubala Dasi (36 C W N 618). Sir John Rankin, C. J., in delivering the judgment of the Division Bench of that Court, has referred to such an argument as "a thing, which is almost ludicrous as an argument". In the said judgment he has referred to an oft‑quoted decision of a Full Bench of that Court in the case of Asgar Ali v. Troilokya Nath (I L R 17 Cal. 631). It is obvious that that case has decided a point which has no bearing upon the question which confronts us in the present case. The aforesaid Full Bench decision is no authority for the proposition that an amendment is not permissible in execution proceedings. That decision is only a pronouncement relating to Order XXI, rule 17, of the Code of Civil Procedure, sub- rule (1) of which runs thus "(1) 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 shall allow the defect to be remedied then and there or within a time to be fixed by it. If the defect is not remedied within the time fixed the Court may reject the application." It would be clear that the requirement of Order XXI, rule 17(1), is that a Court is required to examine an application for execution to see whether the requirements of rules 11 to 14 of that Order have been complied with by the applicant. This enquiry must be done prior to the admission or registration of the application under Order XXI, rule 17(1). The Court may allow the applicant time to remedy the defect, if any, noticed by it in the application. This means that the Court is at liberty to allow an amendment with regard to defects in observance of rules 11 to 14 and such amendment may be allowed prior to the registration of the application because it is the duty of the Court to reject an application where the formalities required by rules 11 to 14 are not complied with. The essence of the Full Bench decision seems to be that once an application is registered and the execution case proceeds, then no amendment under Order XXI, rule 17(1) can be made because the applicant has, to quote a popular phrase, missed the bus. This seems to be the distinctive feature of the aforesaid Full Bench decision. Sir John Rankin, C. J. in Nourangilal Marwari's case is also of the same opinion. But this is far from saying that no amend ment is permissible in respect of an execution application. Only amendments with a view to comply with Order XXI, rule 17(1) must be made before the application is registered, because non‑compliance with the terms of Order XXI, rule 17(1) must lead otherwise to the rejection of the application. Hasan, J., in deciding the Second Miscellaneous Appeal in this Court has also taken the same view. We are in agree ment with the view expressed by Hasan, J., for reasons indicated above. To sum up, we may observe that the execution case having been filed within three years from the date when the last execution proceeding was dismissed, was within time because the judgment‑debtor died after the institution of the execution proceedings which were dismissed on the last occasion. Order XXII, rule 12 (sic) of the Code of Civil Procedure, does not apply to execution proceedings. It cannot be contended that in no case there can be an amendment of an application for execution after it has been registered. This disposes of the two points which were argued and pressed in this appeal, which fails on both the aforesaid grounds. For reasons stated above, we dismiss the appeal and affirm the judgment pronounced by Hasan, J. The execution case will proceed in accordance with law. Having regard to the facts and circumstances of the case, we make no order as to costs of this appeal. M. R. KHAN, J.‑I agree. K. B. A. Appeal dismissed.