This is an appeal from an order made in execution.
2. The respondent filed a suit against the appellants, in the Court of the Civil Judge 1st Class, Khairpur, for the recovery of Rs. 1,85,845.70 on their agency account. The parties entered into a compromise and a consent decree was passed on 21-7-1961 for a sum of Rs. 1,37,047. The appellants transferred a running hotel in lieu of Rs. 90,000 00 and the remaining Rs. 47,047.00 were to be paid in six-monthly instalments; the first instalment being due on 1-9-1961 and the last instalment on 1-3-1966. In terms of the decree, In case of 2 consecutive defaults, the respondent could execute the entire decretal amount. The appellants failed to pay even a single instalment.
The respondent filed an execution application on 6-3-1965, which came to be dismissed in default on 29-11-1965. The next application was filed on 26-7-1967. The objection raised by the appellants was that the application was barred by time as was the first one, inasmuch as the two consecutive defaults had been made by 1-3-1962. The learned Civil Judge, relying on the cafe of Federation of Pakistan v. Bibi Shaidae Fatima and 2 others (PLD 1968 Kar. 31), overruled the objection, and ordered that the decree be executed.
3. Mr. S. M. Sadiq, learned counsel for the appellants, apart from the objection referred to earlier, raised two other contentions; that the application in execution containing no description of what was sought to be attached and sold, was not one in accordance with law and that as the respondent had failed to comply with the other terms of the decree, the decree was not executable.
4. In the light of the view, I am taking, I would desist from making any comments on the first and the third con--tention.
5. It is an admitted position, that in the execution appli--cation, the requirements of rules 11 to 14 as enjoined by rule 11, sub-rule (2) had not been complied with Under Order XXI, rule 17, it was the bounden duty of the executing Court to ascertain whether the requirements referred to above had been complied with. It could either allow the defect to be remedied within a time to be fixed by it or reject the application. It did neither.
6. Mr. S. M. Sadiq, learned counsel for the appellants, argued that the Court had the power of amendment before admission and registration, but having failed to do so the respondent/decree- holder was barred from executing the decree. He relied upon the case of Asghar Ali v. Trilokyya Nath Ghose (17 Cal. 631). There the application for execution made In terms of section 235 of the former Code of Civil Procedure did not contain a list of property as prescribed by section 237 and the decree-holder did not produce the same till under the provisions of section 245, the decree- holder was barred. It was held that the application "could not be carried out without amendment and no amendment could be made after the application had been admitted and registered under section 245". The same view was taken in Sakkargauda Basauganda Gonuagar v. Bhimappa Hanmappa Pujar and others (AIR 1931 Bom. 128).
7. Mr. Ghulam Hussain Abbasi, learned counsel for the respondent, replied that the appellants bad a house, as is borne oat from the affidavit on their behalf and in the earlier appli--cation, the reference was to the same. That is far from satisfactory. However, the view expressed in Asghar Ali's case was dissented from in Chandra Mohun Chowdhury and others v. Abbasuddin Chowdhury and others (PLD 1963 Dacca 762). It was held therein that the provisions of sub-rule (1) of rule 17 were permissive and not prohibitive and that "in view of the provisions of section 151 of the Code of Civil Procedure the Court has Inherent power to allow amendment, when it is necessary." There is also nothing to show, that the appellants bad taken any objection on that score, so that the application could be returned and corrected, specifying the mode in which the assistance of the Court was required. A party, to my mind, should not suffer on account of Court's omission to check entries in execution application.
8. I will therefore set aside the order, allow the appeal and remand the case to the learned trial Judge with the direction that he will allow the respondent to make amendment in the appli-- cation. It will be open to the appellants to raise any objection in regard to the nature of the amendment or the executability of the decree, as, advised.
Costs to follow the event.
S. A. H.