NASIRULLAH BEG, J.

( 1 ) THIS is a decree-holders appeal. It arises out of execution proceedings. An application for execution was given by the decree-holder on 24-11-1951. This was the fourth application for execution. An objection to the execution was taken by the judgment-debtors on the ground that this application was barred by limitation as a previous application dated the 20th November, 1945 for execution of the same decree was not an application in accordance with law. If the application dated 20-11-1945, is considered to be an application not in accordance with law, then it is conceded on behalf of the appellant that the present application would be barred by limitation. The contention of the decree-holder-appellant, however, is that the execution application of 20-11-1945, was an application in accordance with law. There is no doubt that the decree-holder did give an application for execution. This application for execution was good in every respect except that there was a trivial mistake in the calculation of the interest. Learned counsel for the appellant states that the interest mentioned in this application was, in fact, less than that awarded to him under the decree. This wrong amount was mentioned in column 7 of the application which requires that the amount of interest due under the decree should be mentioned therein. There are a large number of cases in support of the proposition that a mere mistake of this kind should not be considered to be a material mistake.

( 2 ) IN Jamilunnisa Bibi v. Mathura Prasad, AIR 1921 All 208 (2), it was held that

"a mere mistake in calculating interest or even deliberately calculating more interest than was due, does not make an application for execution one not in accordance with law. If more interest than was due is charged it may be considered as a mere surplusage and be struck out. "

To the same effect is the law laid down in Kishun Dutt v. Cheddi, AIR 1931 Oudh 312.

( 3 ) IN Pitambar Jana v. Damodar Gachait, AIR 1926 Cal 1077, a Bench of the Calcutta High court held that only such defects in the execution application should be held to make the application one not in accordance with law as make it impossible for the court to proceed with the execution. It cannot be said that a mere miscalculation of interest in column 7 of the application in question would be an illegality of this type. For the above reasons, I have no doubt in my mind that the defect in the application of 20-11-1945 was merely of a formal nature. In other words, it was merely an irregularity and not an illegality.

( 4 ) BOTH the lower courts have, however, allowed the objections of the judgment-debtors, as they felt themselves bound by the law laid down in Sudeshwari Prasad Narain Singh v. Paljhan Dube, air 1931 All 722. I have gone through this case, and, on a careful perusal of it, I am of opinion that the facts of that case were distinguishable from the facts of the present case. A perusal of the judgment of that case indicates that the defects which were found in the execution application in that case related to columns Nos. 2, 6 and 8. Column 2 relates to the name of the parties, column 6 relates to the reference of the previous execution application made for the execution of the decree, the dates of such applications and their results and column 8 relates to the amount of costs awarded. It appears to me that the items relating to the name of the parties and that relating to the dates of the previous, applications with the results might be treated as material defects that might vitiate the application. It could very well be argued that the defects in these particulars go to the root of the matter, and might be considered to have the effect of making the application one not in accordance with law. In the present case, however, the defect is of a different nature. It relates only to column 7. Column 7 requires the mention of the amount of interest due under the decree. The mention of interest was made in t

Click Here to Read the rest of this document