An amendment to an execution petition to add additional properties to the list of properties to be proceeded against is not barred by limitation under Section 48 of the CPC, provided that the amendment is made within the limitation period for the execution of the decree.

1. Miscellaneous Appeal No. 227 of 1955 is brought on behalf of the judgment debtor appellants against an order of the subordinate Judge of Begusarai dated 13-5-1955, by which he allowed an application for amendment of the execution petition made on behalf of the decree holder respondents. It appears that the decree in this case was granted on 3-10-1939, and it provided for the payment of the decretal amount in certain annual instalments commencing from 30th Baisakh, 1347 Fasli corresponding to 21-5-1940

The present execution petition was filed on 18-12-1948, and the properties mentioned in the execution petition for being proceeded against were certain milkiat interest in village Akaha and Tulsichak, and also an elephant. On 29-3-1955, the decree-holders filed two applications, one for amending the properties which were sought to be proceeded against, and the other for correcting the name and description of the judgment-debtors. Both the applications were allowed by the executing court.

By the first amendment the decree-holders sought to proceed against the Milkiat properties in three more villages, namely, Bahorachak, Bairwa and Shaharpura. By the other amendment, the names of the judgment-debtors were sought to be described with a fuller description. In the present appeal, we are concerned with the application for amendment made with regard to the addition of the milkiat properties. Learned counsel on behalf of the appellants did not contest the order of the learned subordinate judge dated 13-5-1955, allowing the amendment with regard to the names of the judgment-debtors.

With regard to the amendment of the properties to be proceeded against, the learned Government Advocate submitted that the execution petition was barred by limitation under Sec. 48 of the Code of Civil Procedure, and the amendment petition made on 29-3-1955, should be treated as a fresh execution petition within the meaning of Sec. 48 of the Code of Civil Procedure. In support of this proposition, the learned Government Advocate referred to a decision of this High Court in Gajanand Sha V/s. Dayanand Thakur AIR 1943 Pat 127 which is a judgment of Fazl Ali and Chatterji, JJ.

It appears that in that case the decree-holder wished, by means of a subsequent application, to substitute a new property which was quite different from the property against which he wished to proceed in the first instance. It was held by the learned Judges that this application for amendment must be treated as a fresh application for execution, and Rule 17 of Order 21 of the Code of Civil Procedure did not apply in such a case. It was further pointed out in that case that Order 21, Rule 17 was intended to deal only with formal amendments but for which the application for execution or attachment will not be regarded as complete.

For example, under Rule 11 the judgment-debtor is required to state such details as the number of the suit, names of the parties etc. and if on a scrutiny of the application it appears that any of these details is missing in that application, the court may give an opportunity to the decree-holder to remedy the defect. Similarly, what Order 21, Rule 13 contemplates is that the property which is sought to be attached should be described in such a way in the application for attachment as to show that the property is identifiable.

If, therefore, there are found wanting in the description such details as are necessary for the proper identification of the property, the executing court has full power to allow the decree-holder to remove the defect by supplying such details. But Rule 17 was never intended to enable the decree-holder to ask the court to delete from his application a property which is fully described and to substitute in place thereof another property with totally different description. In our opinion, the ratio of this case applies fully to the present case and it must be held that so far as instalments up to May, 1942, are concerned, the executio