Manohar Lall, J.This is an appeal by the decree-holder who is aggrieved by the order of the learned Additional District Judge of Muzaffarpur who reversed the decision of the learned Munsif of Muzaffarpur and held that the execution of the decree was barred by limitation in the circumstances about to be narrated.

2. It is enough to state that one Deotanand obtained a preliminary mortgage decree against Rambilas and Singheshwar on 4th January 1937, and before it was made final, he assigned it to Gouri Kant Prasad, the appellant before us, Gouri Kant Prasad applied for the decree to be made final in August 1938, and in December 1939, he made an application for a personal decree under Order 34, Rule 6, Civil P.C. We are concerned in the present case with the execution of the personal decree pronounced on 12th June 1940. But unfortunately in the preparation Of that decree the office showed the name of the original preliminary decree-holder Deotanand as the decree-holder instead of Gouri Kant Prasad in whose favour the Court directed that the decree should now be prepared.

3. The first application for execution was filed on 30th April 1941 by Gouri Kant Prasad, but the draft of that application omitted to relate that the decree under execution stood not in the name of Gouri Kant Prasad but in the name of Deotanand, This application was dismissed for default on 12th July 1941.

4. On 19th September 1941 again, another application for execution was filed by Gouri Kant Prasad. The judgment-debtor objected that this application was not maintainable as the applicant was not the decree-holder. On 28th July 1943 the applicant filed an application for amendment of the decree before the Munsif in his original jurisdiction. The application for execution, however, was dismissed two days after, that is 30th July 1943, on the ground that the applicant was not the person in whose name the decree stood. With regard to the application for amendment, the learned Munsif observed:

It appears that after the hearing of this miscellaneous case Babu Gouri Kant has applied for amendment of the decree but the amendment cannot be made without giving notice to all the judgment-debtors who are several and one of them is insane and is lodged in the Mental Hospital at Kanke.

5. The appellant then filed a third application for execution on 28th September 1943, again not in the name of Deotanand but in his own name. The judgment-debtor promptly took objection u/s 47, Civil P.C, that the application for execution was not maintainable as the applicant was not the decree-holder and also that one of the judgment-debtors was insane at the time of the decree and, therefore, the decree was void and unexecutable against him. While the execution, case and the miscellaneous case were pending, the applicant got the decree amended on 20th May 1944 from the Subordinate Judge, who was temporarily in charge of the office of the Munsif who had passed, the decree during his absence on leave. The judgment-debtor then filed another miscellaneous case before the Munsif who was also executing the decree and prayed that the order of amendment dated 20th May 1944, which was passed without giving notice to him should be re-called.

6. The executing Court decided the two miscellaneous eases by an order dated 22nd November 1944. He framed three points for his decision: (1) whether the order of amendment of 20th May 1944 was liable to be re-called, (2) whether the decree was void against, the lunatic, and (3) whether the execution was barred by limitation. He held that the order of amendment could not be re-called, that the decree against defendant Sidheshwar was void and unexecutable, but the decree being not barred by limitation was executable against the other judgment-debtor.

7. From this decision two appeals were preferred to the learned District Judge, one by Rambilas and the other by the decree-holder who was aggrieved by that portion of the decision of the Munsif that the decree was void against the lunatic. The learned Judge in a considered and able judgment reversed the finding of the learned Munsif on the second and third points and held that the decree was not void and that this objection could not be entertained by the executing Court and that the execution of the decree was barred by limitation. Hence, the appeal to this Court by the decree-holder. There is no cross-appeal on behalf of the judgment-debtor.

8. The only question, therefore, which we have to consider is whether in the circumstances that I have narrated above, the execution of the decree was barred by limitation.

9. The argument on behalf of the appellant is that as the Court ultimately amended the decree on 20th May 1944, the amendment enured to the benefit of the decree-holder and all the previous execution cases which were all filed in the name of the ultimate and real decree-holder should be taken into consideration to enable the last execution to be treated as within time. To this the learned Government Advocate rightly objected by pointing out that the previous execution cases being by a person who was not the decree-holder on the dates of those applications could not be treated otherwise than as of no effect.

10. He also urged, the present execution started on 28th September 1943, being more than three years from the date of the decree should be held to be barred by limitation, and relied upon the case in Administrator-General Vs. Thotta Radhakrishna Chettiar and Others, in support of his contention that the amendment of the decree after the date of application for third execution could not enure to save limitation. To this Mr. B.C. De replied that in any event the application for the third execution should in the circumstances be treated as a proper application as it was still pending when the amendment of the decree was allowed by the Subordinate Judge.

11. Having considered the matter, I am of opinion that the application for execution was not barred by limitation. The attention of the executing Court was pointedly drawn to the fact that the defect in the decree which was being executed had been removed by reason of the amendment by the Court on 20th May 1944, and indeed the judgment-debtor was so alive to this that he urged that the amendment should not have been allowed and the application for execution all along contained the name of the decree-holder who ultimately was formally recorded to be the real decree-holder on 20th May 1944. The learned Government Advocate argued that there had been no application for the amendment of the execution petition after the decree was amended, but in my opinion, in the circumstances of this case, attention of the Court having been drawn to the fact that the decree which was being executed was the decree as amended on 20th; May 1944, it must be held that the parties understood that the Court allowed the application for execution to be treated as if it were an application for execution of the decree of 20th May 1944. The judgment-debtor, it may also be observed, had taken a serious objection as the very first point in the case, namely that the amendment of 20th May 1944 ought not to have been allowed and should be re-called.

12. In this view of the matter, the case relied upon by the learned Government Advocate does not assist him. In Administrator-General Vs. Thotta Radhakrishna Chettiar and Others, it was pointed out in the right hand column of p. 434 that no application had till then been made by the appellant either for the execution of the amended decree or for the amendment of the execution petition, and the case in Thiagaraja Thevar Vs. Sambasiva Thevar, was thus distinguished by the learned Judges. In the present case, as already observed, the decree which was being executed was the amended decree, and in the circumstances, the application for execution must be treated to be an application for execution of the amended decree as and after 20th May 1944.

13. I would, therefore, reverse the decision, of the learned Additional District Judge and restore the decision of the learned Munsif on the question of limitation. The decision of the learned Additional District Judge as to the excitability of the decree against the lunatic is not the subject of any appeal before us.

14. The real difficulty in the case having arisen due to the carelessness of the appellant, I would direct that each party will bear his own costs of this Court of the execution proceedings of 1943 but the appellant will get the costs in the Courts below.

Ayyar J.

I agree.