' ABDUL GHAFOOR, J.-This is an appeal against the judgment and decree of the District Judge, Mirpur, dated 1st of June, 1983, whereby an execution application of the appellant for the execution of a decree, dated 20th of March, 1977, passed by the District Judge, Mirpur, was dismissed.
2. The brief facts giving rise to the present appeal are that appellant-Bank filed a money 'suit against the respondents for the recovery of Rs, 77,618'71, thus a decree for payment of Rs, 77,618'71 was passed on 20th of July, 1977 in favour of the plaintiff-appellant, against the defendant- respondents.
3. The plaintiff-appellant filed an execution application for the above-mentioned decree in the Court of District Judge, Mirpur on 4th of April, 1981. In the application, it was prayed that in addition to the decretal amount, the applicant-bank is also entitled to a sum of Rs, 1,386, as costs of the suit and a sum of Rs, 1,25,840 as interest.
4. Respondents-judgment debtors on notice, objected to the execution of the decree on the following grounds:-
(1) That the application has not been verified in accordance with law, therefore, it is not tellable;
(ii) that the respondents-judgment-debtors Nos. 4 and 5 are dead and their legal representatives have not been brought on the record as such the suit abated in two;
(iii) that the application is time-barred; and
(iv) that the decree-holder has put up a demand of Rs, 1,25,840, as an interest, although he was not held entitled to it by the Court.
5. The appellant-Bank, moved an application for permission to bring the legal representatives of Mst. Riaz Akhtar on file on the 25th of November, 1981. It was prayed in the application that the decree-holder came to know of the death of Mst. Riaz Akhtar only about a week ago. She was survived by Iftikbar Hussain Shah her husband and a minor son whose name was not known. It was also prayed that Mst. Lqbal Begum judgment-debtor was also dead and the decree-bolder came to know of her death only a week ago. However, her legal representatives, respondents Nos. I and 2, are already on the record. It was further prayed that the application was not verified inadvertently, therefore, necessary permission to verify the same, might also be granted.
6. The respondents resisted the application and stated that Mst. Iqbal Begum's death took place on the 30th of December, 1975, whereas Mst. Riaz Akhtar died on ;1st of December, 1975, the appellant- decree-holder 'filed application against the dead persons, therefore, the application calls for rejection.
7. As it appears from the perusal of the file of the lower Court, no issue on the point, as to when the appellant came to know of the deaths of Mst. Iqbal Begum and Mst. Riaz Akhtar, the judgment- debtors, was settled and no opportunity was provided to the appellant-decree-holder to prove his stand. Likewise, no order with regard to the grant of permission, to verify the execution application, was passed. However, the learned District Judge heard the learned counsel for the parties and by his, order dated 1st of June, 1984, dismissed the application on the following grounds:-
(i) That the application for bringing the legal representatives of Mst. Riaz Akhtar and Mst. Iqbal Begum has not been filed within the prescribed period of limitation, therefore, the execution- application abates to the extent of Ms,: Riaz Akhtar's liability;
(ii) that the execution application was not verified as required by law, therefore, this defect is fatal to the application. He also found that there was no. Justification to permit the verification of the execution application;
(iii) that on the point of limitation, he has held that period of execution of the decree, is three years from the date of the decree, whereas the application for execution, was filed long after the expiry of the said three years' period, therefore, the execution application is time-barred; and
(iv) that on the point of interest, the learned District Judge, held that the appellant. Decree-holder was not held entitled to the amount of the interest. Therefore, there is no justification to grant the interest.
8. The learned counsel for the appellant-decree-holder has attacked the finding of the learned District Judge on all the above mentioned points.
9. On point No, 1, he argued that his client did not know of the death of Mst. Riaz Akhtar, earlier than a week ago from the date of the application i. e. The 25th of November, 1984. As soon as he came to know of this fact, he moved an application within the period of one week from the date of the knowledge. He emphasized that it was the duty of the Court to provide him an opportunity to prove his assertion and failure of the Conti, to do so, has caused grave injustice to his client, therefore, the finding of the learned District Judge, on this point, is liable to be set aside.
10. On the point of verification of the execution application, he agreed that this defect is of a technical nature. He sought permission for verification of the application but the trial Court, without any plausible reason, and without hearing him on this point, rejected his prayer. He pointed out that the law has not been correctly laid down in case reported in 135 I C 15. He emphasized that the trial Court should have relied upon the rule laid down in case entitled Ramayyan v. Kadir Bacha Sahib, 31 Mad. 68, wherein it was held that such a defect is not fatal to the application.
11. On the point of limitation, the learned Counsel for the appellant argued that the execution application was filed well within the period of limitation, I. e. After two years three months and three days. He elaborated that respondents moved an application for setting aside this decree on 22nd of September, 1977 which was rejected on nit of December, 1978, therefore, the period, for execution of the application shall start running from 31st of December, 1978 when .,the application setting aside the ex parte decree, was rejected. He that the application for setting aside the decree is, in fact, a review petition and in such a case, the period of limitation is six years, as is provided in Article 182, Limitation Act.
' On point of interest, the learned counsel referred to the phraseology used in the decree-sheet; he pointed out that the following phrase mentioned to in the decree of the Court, authorized the appellant to the interest:- ' He interpreted the above phrase to the effect that the Court has entitled the decree-holder to claim and demand interest from the judgment-debtors.
12. We have considered the points raised by the learned counsel for the parties and have closely gone through the facts of the case. Our observations are as under:- {{URDU TEXT}} (0 The first objection of the judgment-debtors related to the defect of failure to implead the legal representatives of Mst. Iqbal Begum and Mst. Riaz Akbtar, deceased-respondents. Order XXII, C.P.C.
Deals with the case, where any of the parties to the suit, dies during the pendency of the suit and the direction, with regard to bringing, the legal representatives of the dead person on the record.
Rule 3, C.P.C. Deals with the case where plaintiff is dead and rule 4 deals with the cases where the defendant is dead. Rule 12 of Order XXII, C.P.C. Specially excludes the application of rules 3 and 4 of Order XXII, C.P.C. To the execution appliCation. Therefore, the view taken by the learned District Judge, wherein he has held that the application abates against A the legal representatives of Mst.
Riaz Akhtar to the extent of her liability in the decree, is incorrect. Therefore, we set aside the finding.
Of the learned District Judge on this point;
(ii) The next objection taken up by the respondents-judgment-debtors, relates to the defect of verification of the execution application by the decree-holder and upheld by the learned District Judge. We have gone through the provisions of Order XXI, rule 11, C.P.C. In the light of the observations made in the case reported in 135 1 C 15, cited by the learned counsel for the respondents-judgment-debtors. In the above-mentioned authority, it is, no doubt laid down that failure to verify the execution application is fatal. The learned counsel laid great stress on the word "shall" used in the Rule. We feel that although the word "shall" is used in rule 11 of Order XXI, C. P. C., yet the defect of r on-verification of the execution of the application, cannot be held to be fatal to the said application. It is, merely an irregularity, not affecting the merits of the case and it cannot make the application void. We are fortified here by authorities reported in 31 Mad 68, entitled Ramayyan v. Kadir Bacha Sahib, A 1 R 1941 Pesh. 103, AIR 1927 All. 514 and AIR 1932 Cal.
28. Therefore, we hereby reverse the finding of the learned District Judge on this point too; and
(iii) the next point urged by the learned counsel for the appellant is with regard to the finding of the District Judge .In the point of limitation. The period for execution of decrees by the civil Courts other than the High Court, is laid down in Article 182, Limitation Act. Provisions of Article 182, Limitation Act, as applicable in this case, require that application for the execution of decrees may be made within three years from the date of decree required to be executed. In this case, decree was passed on 20th of July, 1977 and application for its execution, could have been moved within a period of three years i. e. On or before the 20th of July, 1980, whereas it was moved on 4th of April, 1980. In this Article, the words "the date of the decree" are pertinently used. The date of the deer can only be extended in case the impugned decree was appealed against or a review petition was filed against such a decree. The argument of the learned counsel for the appellant-decree-holder that the judgment-debtors moved an application for setting aside the aforesaid decree which was rejected on 31st of December, 1978, therefore, the period of three years shall be counted from 31st of December, 1978, is devoid of any force. We are afraid, we cannot C accept this interpretation. The application for setting aside the decree does not include a petition for review. The review petition is altogether a different remedy which has its own procedure as laid down in Order XLVII, C. P. C,, whereas the application for setting aside the decree is moved under. Order IX, rule 13, C. P. C., and both of the remedies are independent and different in nature. Therefore, the inter predation, suggested by the learned counsel for the appellant that the , application for setting aside the ex parte decree, is in essence a review petition, is incorrect.
14. The learned counsel has also argued that originally the suit, in which the decree was passed, was filed in the High Court which was, later on, due to the enlargement of the pecuniary jurisdiction of the District Judges, transferred to the Court of District Judge which ultimately, passed the decree The learned counsel submits that this decree shall be considered to be-a decree of the High Court and the proper Article, from the point of view of limitation, is Article 183 of the Limitation Act, which lays down that the execution application can be filed within 12 years. This argument is also devoid of any force. The Court has to see and execute the decree and not the plaint or the Court where such plaint was filed. The decree in the instant case, was passed, by the learned District Judge and the proper Article of limitation is Article 182, Limitation Act and the prescribed period for filing the execution application, is three years from the date of the decree. Therefore, we, overrule this objection to Our this view finds support from the authorities reported in PLD 1951 Dacca 130, AIR 1932 All. 611, AIR 1922 Nag. 197 and AIR 1927 Cal.
904.
15. The learned counsel for the appellant, Mr. A. L. Dutt, has submitted written arguments which are placed on the appeal-file. The points raised in these arguments have already been dealt with in detail in the foregoing paragraphs of the judgment, and need not be discussed further.
16. In the aforesaid view of the matter, finding no force in this appeal, it is hereby dismissed with costs.