JUDGMENT
Das, J.
1. In spite of the strenuous effort made by Mr. Manuk on behalf of the judgment-debtor who is the respondent before us, I have some to the conclusion that the judgment of the learned Subordinate Judge in the Court below dismissing the execution is wrong and ought to be set aside. The fasts are these:
2. On the 3rd of February 1908 a joint decree was obtained by Musammat Golab Kuer and certain other persons, including one Kali Charan Lal. On the 7th of November 1918 the present execution proceedings were commenced in that Court by the decree-holder. It appears that during the pendency of this execution case Kali Charan assigned his share in the decree to his son Kamla Nand. On the 24th January 1920 Kamla Nand applied for substitution of his name in the place of his father, Kali Charan Lal. On the 10th April 1920 an order was made in favour of Kamla Nand. The Subordinate Judge then dealt with the objections to the execution preferred by the judgment-debtor and dismissed the execution case on the ground that it was barred by limitation.
3. There can be no doubt that on the 7th November 1918 when the execution proceedings were commenced in the Court of the learned Subordinate Judge, the decree-holders were well within time. The learned Subordinate Judge, however, took the view that as an order for substitution was made beyond the period of 12 years from the 3rd of February 1908, the application for execution was bound to fail as barred by limitation under the provisions of Section 48 of the Civil Procedure Code. He thought that Section 22 of the Limitation Act applied and that accordingly the execution proceedings as regards the added decree-holder must be deemed to have been commenced when he was made a party, that is to say on the 10th of April 1920, and as the decree was a joint decree, the whole decree must be held to have been barred on that date.
4. Now in my view the decision of the learned Subordinate Judge cannot be supported. There is high authority for the view that Section 22 of the Limitation Act does not apply to proceedings in execution. Mr. Manuk, appearing on behalf of the judgment-debtor, did not seriously contest this position, but he maintained, and strenuously maintained, that the application on behalf of Kamla Nand must be regarded as an application for execution of the decree and that as such an application was made beyond 12 years from the 3rd of February 1908, the Subordinate Judge had no option but to dismiss that application.
5. Mr. Kulwant Sahai’s argument is that Order XXII, Rule 10, of the Civil Procedure Code applies and that accordingly the execution proceedings could, by leave of the Court, be continued by the person on whom the interest of Kali Charan Lal had come to be devolved. Mr. Manuk’s contention is that Order XXII, Rule 10, does not apply to execution proceedings and that the proper procedure in a case of this nature is that indicated in Order XXI, Rule 16; and he further argues that so far as Kamla Nand is concerned, he thought that he was proceeding under Order XXI, Rule 16. I have myself very grave doubt whether Order XXII, Rule 10, has an application to execution proceedings; but in my view it is not necessary to determine this point, I am of opinion that Order XXI, Rule 16, did apply and that the application of Kamla Nand Was in substance an application under Order XXI, Rule 16.
6. I have then to consider, whether an application under Order XXI, Rule 16, is an application for fresh execution, or whether such an application is in substance an application for continuation of the execution proceedings then pending. Mr. Manuk argues that we ought to give full effect to the words deliberately adopted by the Legislature, namely, that the transferee may apply for execution of the decree. Mr. Manuk’s argument is that an application for execution of the decree must be an application in the form set forth in Order XXI, Rule 11 of the Code, and that as confessedly the application was not in the form set forth in Rule 11 of Order XXI, there was no application at all for execution of the decree at that stage before the Court.
7. Now in order to determine this point, I think it is important to see whether the execution proceedings did abate by reason either of death, assignment, creation or devolution of any interest during the pendency of the execution proceedings. If the execution proceedings did come to an end by reason of such death or devolution in interest or devolution of any interest of any of the decree-holders, then the application under Order XXI, Rule 16, must of necessity be an application for fresh execution. If, on the other hand, the execution proceedings did not abate by reason of such death or devolution of interest, then it is difficult to see why the Legislature should compel the party on whom the interest of a deceased decree-holder or the assignor decree-holder has devolved to present a fresh application for execution. The question has been discussed in the case of Jagat Tarini Dasi (Manmatha Nath Mitter) v. Rakhal Chandra Tewary 3 Ind. Cas. 324 : 14 C.W.N. 752 : 10 C.L.J. 396. Mr. Justice Mookerjee in that case, with the full concurrence of Mr. Justice Vincent, held that an application under Order XXI, Rule 16, is not a fresh application for execution, but merely an application for bringing on the record the assignee and for continuing the execution proceedings then pending in that Court. If that view be correct, then there can be no doubt that there was no need to make an application in the form set forth in Order XXI, Rule 11. It was further held in the case just cited that there is no question of limitation in an application under Order XXI, Rule 16. I entirely concur in the reasonings given by the learned Judges in the case just cited. I am of opinion, therefore, that the application presented by Kamla Nand on the 24th January 1920 was in substance an application for continuation of the proceedings then pending in that Court and that no question of limitation arises in the circumstances of the case.
8. It was next argued by Mr. Manuk that, assuming that the application was an application for continution of the proceedings, still by the express provision of Rule 16 of Order XXI, notice of such application ought to have been given to the transferor and the judgment-debtor and that the decree could not be executed until the Court had heard their objections, if any, to the execution. Now it seems to me that this rule compels the assignee to give notice, not of the assignment, but of the execution proceedings to the transferor and to the judgment-debtor. The order recording the name of the assignee was properly made, but I have no doubt whatever that the Subordinate Judge could not proceed to execute the decree without giving notice of execution to the other decree-holder and the judgment-debtor. But that notice all the parties had; they appeared in the Court; they contested the application of the decree-holder for execution of the decree; and it cannot be suggested that the judgment-debtor had no notice whatever of the application for execution. It is important to remember that the proviso in Rule 16 of Order XXI is as follows: “Provided that where the decree, or such interest as aforesaid, has been transferred by assignment, notice of such application,” that is to say notice, not of the assignment, but of the application for the execution of the decree, “shall be given to the transferor and the judgment-debtor, and the decree shall not be executed until the Court has heard their objections (if any) to its execution.” The section, therefore, does not require any notice of the assignment to be given to the judgment-debtor; and the whole argument of Mr. Manuk has been that as notice of the assignment was not given to the judgment-debtor, execution could not proceed. So far as the other questions are concerned, namely, whether notice of the execution proceedings was given to the judgment-debtor, it is not suggested before us, and in our view it cannot be suggested, that such notice was not given to the judgment-debtor.
9. I must allow this appeal, set aside the order passed by the learned Subordinate Judge and direct the execution case to proceed. The respondent must pay the costs of this appeal to the appellants; hearing-fee two gold mohurs.
10. No order need be passed on the application in the matter of Miscellaneous Appeal No. 31 of 1921, except to say that the interim order passed by us shall stand dissolved.
Adami, J.
11. I agree.