An application for execution of a decree that seeks to attach and sell a new property that was not included in the original application is a fresh application for execution and is barred by limitation if it is filed after the expiry of the limitation period.

Kapur, J.

1. This is a decree-holders appeal against a judgment of Khosla, J., dated 7-8-1953, reversing the order passed by the executing Court and thus dismissing the application for execution filed by the decree-holder.

2. Ujagar Singh obtained a decree against Kahan Singh and others for a sum of Rs. 5,250/-on 15-2-1935. In execution of the decree the decree-holder obtained mustardi of all the lands belonging to the judgment-debtors to begin from 18-6-1938 for a sum of Rs. 1,440/-.

3. Several applications were made in the intermediate period but nothing more seems to have been realized. On 11-2-1947 the decree-holder made an application for execution in accordance with Order 21, Rule 11, Civil P. C. In giving the mode of execution the decree-holder in column No. 10 of the application stated "by means of attachment and sale of movable and immovable property". Attached to this application is a list of movable property which the decree-holder wanted to proceed against and this included 200 sheep, 60 goats, 1 jhoti and a camel. The execution proceedings went on but nothing could be realized and the executing Court then dismissed the application but on appeal coming to this Court the termination of the proceedings by the executing Court was set aside and the executing Court was directed to proceed in accordance with law.

4. On 17-2-1951 the Court asked a statement of accounts to be put in and the property from which the decree-holder wanted the decretal amount to be realized also to be indicated. On 3-3-1951 is another order of the executing Court in which the decree-holder was directed to file a goshwara. On J5-3-1951 the decree-holder made another application in which he gave the account according to which Rs. 4,328/2/- was due to the decree-holder from the judgment-debtor. He also stated that he wanted the execution to proceed against 200 sheep and goats and in para B he stated as under:

"Land measuring 20 bighas kham has been, inherited by the judgment-debtors. On the death of....... The Judgment-debtors have now got the said property by inheritance." and he then prayed that execution be proceeded against this property.

5. The question which was raised before Khosla, J., was whether this application amounted to a fresh application or was a continuation of the previous application and, therefore whether it was barred by Section 48(2) or not. The facts which I have given above show that on the date when the last application, which was within time, was made, that is, on 11-2-1947, it was a general application that execution be levied against movable and immovable property but in the list given movable property was indicated. The application of 8-3-1951 shows that it was round about that time that the judgment-debtors inherited the property and, therefore, it was on the 8th of March that the decree-holder indicated that he wanted to proceed against that property also. Khosla, J., has held that this application is a new application and is, therefore, barred by Section 48 (2), Civil P. C.

6. The decree-holder submits that the application is not a new application but is a mere amplification or at the most an amendment of the application which was made on 11-2-1947.

7. In order to determine this it is necessary to refer to the relevant provisions of the Code of Civil Procedure. Order 21, Rule 11, deals with application which have to be made for the purpose of execution. In Sub-rule (ii) of Clause (j) of Rule 11 the mode in which the assistance of the Court is required is laid down and Sub-rule (ii) is as under:

"By the attachment and sale, or by the sale without attachment, of any property".

Rule 13 requires that in the application the decree-holder must give the description of the property sufficient to identify the same including boundaries or numbers, as the case may be. Rule 17 (1) is strongly relied upon by counsel for the appellant and that rule as applicable to this High Court is at of Mullas Civil Procedure Code, Vol