JUDGMENT R.C. Mitter, J. - The Plaintiffs who are the Appellants before me obtained on the 25th May, 1925, a decree against Defendants Nos. 1 to 4 and others for possession of some lands and for costs also. This decree was passed in Title Suit No. 86 of 1924. Defendants Nos. 1 to 4 were Defendants Nos. 3, 7, 8 and 9 in that suit. In 1925 the Plaintiffs applied for execution of the said decree so far as costs only were concerned (Title Execution Case No. 236 of 1925) and attached some properties belonging to Defendant No. 1. On the 22nd August, 1925, a petition was filed in the said execution case by the Plaintiffs and Defendants Nos. 1 to 4, asking the Court to record an adjustment of the decree. In the said petition, the Plaintiffs stated that they had no further claim against the said Defendants on account of the decree. The executing Court on the same date recorded full satisfaction of the decree passed in Title Suit No. 86 of 1924 against the said Defendants in accordance with the tenor of the said petition. Items Nos. 1 to 3 of the properties described in the plaint of that suit were claimed by the said Defendants and the decree for possession which the Plaintiffs had obtained against the said Defendants was in respect of these items also. It has been found by both the Courts below that the petition of adjustment had through mistake been wrongly worded, the intention of the parties being to record satisfaction in respect of the decretal costs only. The Plaintiffs were, however, ignorant of the mistake and they Chad not apparently then looked into the order for satisfaction as recorded by the Court. They accordingly started on the 28th October, 1925, another execution (Title Execution Case No. 300 of 1925) against all the judgment-debtors. This was for obtaining possession of the lands decreed to them. On the basis of the order of satisfaction dated the 22nd August, 1925, the names of Defendants Nos. 1 to 4 were penned through by the Court. Apparently the Plaintiffs did not know of this fact at the time. The Court allowed them delivery of possession, but having regard to the aforesaid amendment of the execution petition by the Court, the order for delivery of possession concerned and affected the judgment-debtors other than Defendants Nos. 1 to 4 were penned through by the Court. Apparently the Plaintiffs did not know of this fact at the time. The Court allowed them delivery of possession, but having regard to the aforesaid amendment of the execution petition by the Court, the order for delivery of possession concerned and affected the judgment-debtors other than Defendants Nos. 1 to 4. The Plaintiffs, however, were under the impression that they got an order for delivery of possession in respect of all the properties decreed to them and against all the judgment-debtors. They went to the locality to take delivery of possession on the 8th November, 1925, and it was then or shortly thereafter that they discovered that they had not obtained an order for delivery of possession in respect of properties Nos. 1 to 3. On the 23rd December, 1925, they filed an application under secs. 151-153 of the Code, wherein they stated that the petition of adjustment had been through mistake wrongly worded and the order of satisfaction, as recorded, was not according to the intention of the parties. They accordingly prayed for rectification of the said order. The order passed on the petition is not on the record. It may be that either the application was not pressed or it was rejected. However, a third execution was started by the Plaintiffs on 21st August, 1926, (Title Execution Case No. 331 of 1926). This was for obtaining delivery of the properties including Nos. 1 to 3. Defendants Nos. 1 to 4 filed their objection under sec. 47 of the Code. They put forth the aforesaid order dated the 22nd August, 1925, recording full satisfaction of the decree against them. It appears from the proceedings of the said execution case that the Plaintiffs examined witnesses to prove that the adjustment petition had been through mistake wrongly worded and the intention of the parties was to absolve Defendants Nos. 1 to 4 from costs only. In the judgments of the Court of first instance as also of this Court, this aspect of the case is not dealt with, but they proceed upon the construction of the adjustment petition and the order passed thereon. The judgment of the first Court was delivered on the 8th January, 1927, and of this Court on the 18th March, 1929. The Plaintiff's application for possession of properties Nos. 1 to 3 was dismissed. The judgment of the first Court was delivered on the 8th January, 1927, and of this Court on the 18th March, 1929. The Plaintiff's application for possession of properties Nos. 1 to 3 was dismissed. On the 26th March, 1931, the suit out of which this appeal arises was filed, after a previous suit had been withdrawn with liberty to institute another. In this suit the Plaintiffs want rectification of the petition of adjustment dated the 22nd August, 1925, and of the order passed thereon. As I have stated, both the Courts below have found the facts in favour of the Plaintiffs and have held that a mistake had crept in the petition of adjustment and the compromise between the parties was confined to decretal costs only. But the Courts below have differed on the questions of maintainability of the suit and of limitation, the first Court holding in favour of the Plaintiffs, but the lower Appellate Court against them. Two questions have to be considered by me, namely, (a), is the suit maintainable and (b), is the suit barred by limitation? A suit for rectification of an instrument on the ground of mutual mistake is provided for by sec. 31 of the Specific Relief Act. Such a suit would lie unless it is barred under other provisions of the law. The question which, therefore, falls to be determined is whether sec. 47 of the CPC bars the suit. The parties to this suit are the Plaintiffs and, some of the Defendants in Suit No. 86 of 1924, but I do not think that the determination of the question whether the petition of adjustment filed on the 22nd August, 1925, and the order thereon represented correctly the agreement of the parties falls within sec. 47 of the Code, and could have been decided by the executing Court dealing with Title Execution Case No. 331 of 1926. The order recording full satisfaction of the decree dated the 22nd August, 1925, could have been rectified by the Judge passing it on an application for review, as it was a consent order Gulab Koer v. Badshah Bahadur 13 C. W. N. 1197 : s. c. 10 C. L. J. 420 (1909)], but his successor could not have entertained such an application (Or. 47, r. 2). 47, r. 2). I hold accordingly that the executing Court, as an executing Court, which would include a Judge coming in as a successor of the Judge who passed the order in question, had no jurisdiction to enter into the questions relating to the rectification of the order in question under the provisions of sec. 47 of the Code. I hold accordingly that the suit is maintainable. 2. This leads me to the question of limitation, and in my judgment the suit is barred. In my view there is no scope for the application of Art. 120 of the Limitation Act, for Art. 96 of the Limitation Act, the terms of which are perfectly general, would include a suit of this description. 3. The mistake came to be known to the Plaintiffs certainly on the date on which they filed their application under secs. 151-153 of the Code, i.e., on the 23rd December, 1925. The suit which has been instituted on the 26th March, 1931, is prima facie out of time, unless sec 14 of the Limitation Act can be invoked by the Plaintiffs. How long the application made by the Plaintiffs under secs. 151-153 of the Code was pending and what was the order passed thereon, cannot be ascertained from the record, but this much is certain, namely, that when the objection under sec. 47 of the Code was filed by the Defendants in Title Execution Case No. 331 of 1926, wherein they, the Defendants, relied upon the order dated 22nd August, 1925, recording full satisfaction, the Plaintiffs attempted to resist the said objections by pleading that the said order had not correctly recorded the the consent of the parties. It may be taken that the Plaintiffs wanted to get rid of the said order in the course of Title Execution Case No. 331 of 1926, not by making an application for rectification, but by putting forth their case relating to the said order by way of defence to the petition of objection filed under sec. 47. In order that sec.14 may be applicable, the Plaintiff in the later suit must have been prosecuting another civil proceeding. 47. In order that sec.14 may be applicable, the Plaintiff in the later suit must have been prosecuting another civil proceeding. The word prosecuting, in my judgment, used in first paragraph of the section, means that the Plaintiff in the later suit must be either the Plaintiff or applicant in the previous civil proceeding, which was not entertained by reason of defect of jurisdiction. This position has been made clear by Explanation II. In the case of Maharajah Jugutendur Bunwaree v. Din Dyal Chatterjee 1 W. R. 310 (1864), where the Plaintiff in the later suit was the Defendant in the earlier suit but had pleaded a set off which covered the claim which he put forward as Plaintiff in the later suit, it was held that he was entitled to deduct the time during which the first suit was pending although he was a Defendant therein. The case turned upon the construction of sec. 16, Clause XIV, of Act XIV of 1859. Bayley and Seton Karr, JJ., observed thus: "It recites that the time shall be excluded for which 'the claimant or any person under whom he claims shall have been engaged in prosecuting a suit upon the same cause of action against the same Defendant.' We think that these words are to be construed liberally and not literally, according to the decision of the Privy Council, Volume VII of Moore's Reports, page 357, case of Prannath Roy Chowdhury v. Rookea Begum 7 M. I. A. 323, 357 (1859). In this case their Lordships laid down as a rule that that a person was not barred when he had been allowed to intervene, and was a continuing party to a suit, and it would be inconsistent to hold that the pendency of litigation with the proceedings on it did not furnish a good and sufficient cause for his not proceeding in his suit." In Prannath Roy Chowdhury v. Rookea Begum 7 M. I. A. 323, 357 (1859), the question was whether a foreclosure suit was barred by time. On, the death of the mortgagor there was a litigation as to the ownership of the equity of redemption between his heirs and a party claiming as purchaser. The mortgagee intervened in that suit to protect his interest and prayed for enforcing his rights in that suit. On, the death of the mortgagor there was a litigation as to the ownership of the equity of redemption between his heirs and a party claiming as purchaser. The mortgagee intervened in that suit to protect his interest and prayed for enforcing his rights in that suit. The question was whether he was entitled to deduct the time taken by that suit. The case was governed by sec. 14 of Regulation III of 1793, the terms of which are materially different from sec. 16, Clause XIV of Act XIV of 1859 and sec. 14 of the Limitation Act of 1908. Sec. 16, Clause XIV of the Limitation Act of 1859 is also materially, different from sec. 14 of the Limitation Act of 1908. There is nothing there corresponding to Explanation II to sec. 14 of the Act of 1908. I do not, therefore, consider Jugutendur Bunwaree's case 1 W. R. 310 (1864) to be a binding authority on me and I do hold that the legislature has given an indication of the meaning to be put on the word "prosecuting" by adding Explanation II, which was not in the Act of 1859. I hold that in order that sec. 14 may apply the Plaintiff in the later suit must be either a Plaintiff or an applicant in the earlier civil proceeding. In the case of Lakhan Chandra Sen v. Madhusudan Sen I. L. R. 85 Cal. 209 : s. c. 12 C. W. N. 326 (1907), where both the cases of Prannath Roy Chowdhury v. Rookea Begum, 7 M. I. A. 323, 357 (1859) and Maharajah Jugutendur Bunwaree 1 W. R. 310 (1864) were cited, Maclean, C.J. expressed strong doubts of their applicability to cases under sec. 14 of the Limitation Act of 1877 which correspond in all material particulars to sec 14 of the present Act. I hold accordingly that the Plaintiffs are not entitled to invoke the aid of sec. 14 of the Limitation Act and get deduction of the time during which Title Execution Case No. 331 of 1926 was pending, and their suit is barred by time. The result is that the appeal is dismissed with costs.