P L D 1963 Dacca 762 (PLP)

3. Mr. Roy, the learned Advocate for the appellants, has contended that as the Execution Case No. 69 of 1953 was started against an alive person the subsequent death of Asfa Khatun on 12th of June 1954, could not invalidate the whole proceedings and as such the limitation ran from 31st August 1954, and not from 12th of June 1954, when Asfa Khatun mutwalli died. In support of this contention it has been argued that in view of the provision of Order XXII, rule 12, the provisions of the Code as to substitu tion in place of a deceased judgment‑debtor do not apply. It will suffice if the subsequent application for execution against the heirs of the deceased judgment‑debtor is filed within 3 years from the final order passed on the last execution case, namely, from 31st of August 1954. It has been further argued that in several cases it has been held that when an application for execution is filed against a dead person bona fide as not knowing that the judgment‑debtor was dead in that case it is a step in aid of execution. For this proposition of law Mr. Roy has relied on the cases of Bipin Behari Mitter v. Bibi Zohora (I L R 35 Cal. 1047), Balkishan Das and others v. Bedmati Koer and another (I L R 20 Cal. 388), Sawia Pillai v. Chockalinga Chettiar and others (I L R 17 Mad. 76) Arjun Das v. Gunendra Nath Basu Mullik (20 C L J 341) and Maula Baksh v. Muhammad Aram (A I R 1934 Lah, 5). In some of the aforesaid cases it was held that when an execution case is filed either against a dead person or against a wrong person bona fide, then in that case the filing of an application will be taken as a step in aid of execution and in some other that provision for substitution of the heirs does not apply to execution case. I need not express my views on the aforesaid decisions in view of my decision on a point as follows. It is apparent from the) facts stated above that the Execution Case No. 69 of 1953 was started against a person who was alive at that time. So, there cannot be any question that the proceedings in that execution) case at least up to the death of Asfa Khatun on 12th of June 1954, were in accordance with law. Now the question arises whether A the final order dated 31st of August 1954, is a valid order. In my opinion, it cannot but be a valid order. When there is a proceeding started in accordance with law and there is death, in that case also an order is required to be passed by the Court. It does not appear that any other order was passed by the executing Court on this application. Hence I find that the order that was passed on the 31st of August 1954, in execution Case No. 69 of 1953 was not a nullity but a valid order and as such the limita tion ran from that date.

4. Now the question is whether the present mutwalli was substituted within time and whether the proceeding was against the wakf property. The relevant portion of the statements made in the application for execution has been quoted before. From the aforesaid quotation it appears that the applicants were not certain which of the heirs of late mutwalli Asfa Khatun was the mutwalli. The aforesaid quotation has been construed by the executing Court that the decree‑holder wanted to make all the heirs of the late mutwalli as mutwallis of the estate. So, merely because an application was filed on getting an information from the judgment debtors who was the mutwalli that did not make a new case but only a correction of the names already on the record. This inter pretation of the aforesaid statements was not accepted by the appellate Court. In its opinion the Wakf Estate was not at all represented before 15th of February 1958, and that being beyond three years from the 31st of August 1954, the last order passed on the Execution Case No. 69 of 1953, the application for execution was barred by limitation. Mr. Roy, the learned Advocate for the appellants, has contended that when there is a confusion in the statements and which can also be construed in either way‑one for the benefit of the applicant and another against him, in such circumstances the Privy Council held that amendment in such case was desirable. For this he has relied on the case of Charan Das and others v. Amir Khan and others (47 I A 255=25 G W N 289 295), the relevant portion of which runs as follow: --‑ "In a case such as the present, where the right sought is one involving the dispossession of a perfectly lawful purchaser of property, it is not, in their Lordships opinion, quite accurate to say that a plea that such a suit has not been brought within the period of time limited by the Act is a technical plea, if by a technical plea is meant a plea which asserts rights which have no merits for their support. But their Lordships are in full agreement with the statement made by the Judicial Commissioner that, "however defective the frame of the suit may be, the plaintiffs object was to pre‑empt the land; their cause of action was one and the same whether they sued for possession or not." If this be so, all that happened was that the plaintiffs, through some clumsy blundering, attempted to assert rights that they undoubtedly possessed under the statute in a form which the statute did not permit. But if once it be accepted that they were attempting to establish those rights, there is no sufficient reason shown for disturbing the judgment of the Judicial Com missioner, who thinks they should be at liberty to express their intention in a plainer and less ambiguous manner. It may be noticed that in the claim the relief sought is so awkwardly set out that it would be quite open to the interpretation that they had in fact claimed pre‑emption and not a declaration of the right, were it not for the fact that the plaintiffs themselves appear for foolish reasons stoutly to have maintained that that was not their object. That there was full power to make the amendment cannot be disputed, and though such a power should not as a rule be exercised where its effect is to take away from a defendant a legal right which has accrued to him by lapse of time, yet there are cases (see for example, Mohammed Zahoor Ali Khan v. Mst. Thakooranee Rutta Koer) where such considerations are outweighed by special circumstances of the case, and their Lordships are not prepared to differ from the Judicial Commissioner in thinking that the present case is one." In my opinion, the statement that was made in the petition for execution was a clumsy one but are in effect to proceed against the mutwalli whoever he might be and when they came to know who was the then mutwalli they filed an application for amendment. Furthermore, the Wakf Commissioner was made a party in that application. So, in such circumstances, it cannot be held that the amendment that was allowed on the 15th of February 1958, was an amendment not for bringing a new party on the record but was to clarify a party's capacity who was already on record. Hence, I find that the application for execution is not barred by limitation.

5. Mr. Mofakher, the learned Advocate foe respondents, has contended that once an execution petition is registered, there cannot be any amendment of the petition, and for this proposition of law he has relied on the case of Asghar Ale (Judgment‑Debtor) v. Troilokya Nath Ghose (Decree‑Holder) (1). After going through the aforesaid case, I find that it was held in that case that once an execution petition was registered no amendment could be allowed under Order XXI, rule 17 of the Code of Civil Procedure. That case also came up for consideration before a Division Bench of that Court in the case of Nourangilal Marwari v. Sm. Charubala Das and others (2). Order XXI, rule 17 provides:- "(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 been complied with, the Court may reject the application, or may allow the defect to be remedied then and there or within a time to be fixed by it. (2) Whether an application is amended under the provisions of sub‑rule (1), it shall be deemed to have been an application in accordance with law and presented on the date when it was first presented." From the sub‑rules it appears that it is the duty of the executing Court to ascertain whether the requirements of the rules 11 to 14 were fulfilled. If they were not fulfilled, it is then the Court's discretion to reject the application or to allow the defect to be remedied then and there or within a time to be fixed by it. So the provision of sub‑rule (I L R 17 Ca1. 631) of rule 17 is nothing but a permissive one but not a prohibitive one as the discretion, a judicial discretion, of the Court is whether to reject the application or to allow time for removal of the defect. It further appears that the removal of the defect may be beyond the time of limitation and once the defect is removed the application shall be deemed to have been an application in accordance with law and presented on the date when it was first presented: Vide sub‑rule (36 C W N 618) of rule

17. Furthermore, in view of the provisions of section 151 of the Code of Civil Procedure the Court has inherent power to allow amendment when it is necessary. So, I regret to disagree with the view with the greatest respect to the learned Judges of the Full Bench, that once the application was registered no further amendment could be allowed. Furthermore, I have already pointed out that the amendment that was sought to be made was not such an amendment by which it could be said that the whole nature of the application was amended and a new case was made out. In the present case what was done is that only a party who was there was described as mutwalli on the claim being made by that party and as such I hold that this amendment is not hit by the provisions of rule 17 of Order XXI, of the Code of Civil Procedure.

6. The next contention of the learned Advocate for the respondents is that the order dated 31st August 1954, is not a valid order as contemplated by Article 182, clause 5 of the Limita tion Act. I have already held that the order that was passed on the 31st of August 1954, is a valid order as contemplated by the. provisions of Article 182, clause 5 of the Limitation Act.

7. The appeal is accordingly allowed. The judgment and order of the lower appellate Court are set aside and those of the executing Court are restored. Let the execution case be proceeded with in accordance with law. In the circumstances of the case, I make no order as to costs. Leave to appeal under Clause 15 of the Letters Patent, as prayed for, is granted. S. B./A. H. Appeal allowed.