The main legal point established in the judgment is that when a certain prayer is specifically made under a rule which permits the making of that prayer and when the Court grants the prayer overlooking any informality, the order of the Court is legal.

Devadoss, J.

1. The plaintiffs suit is for the recovery of a sum of money said to have been paid by the District Munsifs Court to the defendant who was not entitled to receive the same. The defendant got a decree in O.S. No. 99 of 22 against certain persons in July or August 1922. Before the decree he had attached certain moveables belonging to the defendants and proceeds of their sale were paid into Court. He applied for a cheque for the amounts due to him on 11th September 1922. The plaintiff who had filed O.S. 103 of 22 against the same defendants obtained a decree on 21st June 1922 and applied for attachment of the amount in Court on 80th June 1922 and the attachment was effected on 11th August 1922. Both the lower Courts have held that the plaintiff failed to file a proper execution application before 11th September 1922 and therefore he did not coma within the provisions of Section 73, Civil P.C., so as to be entitled to rateable distribution of the assets in Court. The plaintiff has preferred this second appeal.

2. The only point for consideration is whether Ex C is an execution application within the meaning of Section 73, Civil P.C., Ex- C is headed petition filed by the plaintiff under Order 21 Rule 11, Civil P C.and the prayer is that the amount belonging to the defendants and now in deposit in this Court in O.S. 99 of 22 may be attached immediately on condition of producing the decree copy later on.

3. The Subordinate Judge who is inclined to hold that this is an execution application is of opinion that he should have filed another application for a transfer of the money standing to the credit of suit No. 99 of 22 to the credit of his own suit No. 103 of 22. If Ex. C is an execution application, no second application would be necessary in order to enable the plaintiff to get the benefit of Section 73. The contention for the respondent is that this is only an interlocutory application, and therefore, it cannot be treated as an execution application. In considering whether the application is an execution application or not we have to look at the sub stance and the form of the application. No doubt, Ex. C is not in the form prescribed by the Civil Rules of Practice, but it is filed under Order 21, Rule 11 which lays down what particulars should an execution application contain. Ex. C complies with the main particulars required by Rule 11, the names of the parties, the order under which it is filed and the relief claimed The condition mentioned in Ex. C of producing the copy of the decree shows that it was in pursuance of the decree that the relief mentioned in it was claimed. The Court acted upon it and ordered an attachment of the fund in Court and the attachment was made on 11th May 1922. In these circumstances can it be said that Ex. C is not an execution application? It was the duty of the Court to have returned the application when it was not in proper form but when the Court overlooked the want of form or the absence of certain particulars required under the rules and passed an order granting the relief prayed for it would be pedantry to say that the petition on which the relief claimed was granted was not a proper petition. Forms and rules are prescribed for the guidance of the Courts and the litigants, Where a Court overlooks certain small informalities and grants the relief asked for it is not open to the party against whom the relief is granted to question the correctness or the legality of the Courts order on the ground that the application on which the relief is granted is not in the proper form. Where one relief is claimed and another is granted the Court may be said to act illegally or with material irregularity, but when a certain prayer is specifically made under a rule which permits the making of that prayer and when the Court grants the prayer overlooking the informality if any, the order of the Court is legal. I, therefore, hold that Ex. C is an execution application.

4. If Ex. C is an executio