P L D 1952 Dacca 459 (PLP)

Syed Modaris Ali for Respondent. IBRAHIM, J.‑

This miscellaneous appeal is directed against the appellate judgment and order of the learned Subordinate judge of Rangpur. The respondent obtained a final decree against the appellant in a suit for foreclosure on the 15th November, 1938, an put the decree into execution on the 8th January, 1945, praying for sale of the properties, as if it were a decree for sale. A sale was held on the 20th July,1945. On the 4th February 1946, the sale was set aside without contest on the application of the appellant. On the 11th March 1946, the responder applied for amendment of the execution petition by altering the prayer for sale to one for delivery of possession to which he was entitled under the terms of the decree. The learned Munsif disallowed the amendment on the ground that the original application for execution was filed beyond time. On appeal the learned Subordinate judge found that the application for execution though filed beyond three years from the date of the decree, was within time inasmuch as the respondent was entitled to extension of limitation under section 52 of the Bengal Agricultural Debtors Act by reason of certain proceedings instituted by the appellant under that Act, and he allowed the amendment. Hence this appeal. The contention of Mr. Syed Amjad Hussain for the appellant in this appeal is twofold :‑(1) that the application for execu tion was time‑barred, and (2) that the amendment cannot be allowed as it would change the character of the application. It is admitted that the appellant applied for settlement of the debt under section 8 of the Bengal Agricultural Debtors Act on the 24th March 1938, and that this proceeding was pending up to the 15th June 1941. It is further admitted that he again applied on the 16th June, 1943, for relief under section 37A of the said Act and the proceeding started by this application was pending till the 6th January 1945. There is no dispute that if these two periods are excluded, the bar of limitation will not apply. As to the period covered by the application under section 8 of the Bengal Agricultural Debtors Act, Mr. Amjad Hussain's contention is that the respondent is not entitled to the benefit of section 52 of the act as the Board did not come to a finding that it was a debt. His view is that unless the Board comes to a finding that the claim in respect of which the application is made is a debt, the period occupied by the proceeding cannot be excluded under this section. I am un able to accept this view. It seems to me that if in respect of a debt which comes up before the Civil Court, that Court finds that there was an application under the Bengal agricultural Debtors Act, it has to exclude the period covered by the pro ceeding in calculating limitation, even though the Board came to the conclusion that it was not a debt or it had ceased to be a debt. As to the second period, Mr. Amjad Hossain's contention is that that section applies only after a sale has been held and consequently in his view, the application was not maintain able, and that being so, it was not a proceeding within the contemplation of section 52 of the Bengal Agricultural Debtors Act. I am again unable to accept this view. If there, is a bona fide contest before the Debt Settlement Board, in the parties are entitled to the benefit of section 52, even) though the Board comes to the conclusion that the applica tion is not maintainable. The benefit of section 52 cannot be denied to a party on the ground that it was ultimately found by the Court that the application was not maintainable. It must be remembered that a decree‑holder cannot execute the decree of the Debt Settlement Board passes an Award in respect of it. He can execute the decree only in case of dismissal of the application by the Board. If the view propounded were accepted, it would be difficult for the decree‑holder to avail himself of the benefit of section

52. A decree‑holder cannot decide beforehand whether the Board would dismiss the application. If the view of Mr. Amjad Hossain is acted upon, the decree‑holder would have to apply for execution even during the pendency of the case before the Debt Settlement Board for, if he does not do so on the surmise that the Board would pass an Award he may find him self in the unhappy position that the execution is barred 65 limitation. In these circumstances. I am not prepared to disturb the decision of the learned Subordinate Judge. As to the amendment Mr. Amjad Hossain's argument is that such an amendment is not contemplated by Rule 17 of O. XXI of the Code of Civil Procedure. That is correct. But Rule 17 is not prohibitory but permissive. Rules 11 to 14 required that certain particulars should be stated in the petition for execution to enable the Court to execute the decree. Rule 17 permits the Court to allow amendment of the petition if any of those particulars is omitted. This does not mean that the Court cannot allow any other amendment. In this connection Mr. Syed Modaris Ali appearing for the respondent, has placed before me the decision in Naurangilal Marwari v. Charubala Dasee I L R 59 Cal. 1266, where the interpretation of Rule 17 of O. XXI of the Code came up for consideration and I agree with it as to the scope and meaning of Rule

17. There cannot be the least doubt that it was a bona fide mistake made in the prayer in the execution petition, and I do not think that the law prevents the Court from permitting the amendment of petition to remove such mistakes, the amendment does not change the character of the applica tion; it remains a petition for execution all the same. In my opinion, the ground taken by Mr. Amjad Hossain has no substance. The result, therefore, is that this appeal is dismissed ; but considering the circumstances of the case, I do not make any order as to costs. A. H. Appeal dismissed.