JUDGMENT Ghulam Hasan and Madeley, JJ. - This is a second execution of decree appeal by a decree-holder against a decision that his application for execution of decree dated the 2nd November, 1938, was time barred u/s 48, Code of Civil Procedure. 2. The facts of the case are that Nur Mohammad Khan obtained a decree on the 11th January, 1926, against Thakurain Sri Raj Koer. The decree-holder made seven attempts to execute the decree against the judgment-debtor and her legal representatives. The last of these was dated the 13th December, 1937, and this was for the sale of the proprietary rights in village Chaupatti. In this village there were both superior proprietary rights and under-proprietary rights. The superior proprietary rights were taluqdari rights, but the under-proprietary rights were held by Thakurain Sri Raj Koer not as taluqdaria. The decree also was against her not as taluqdaria, but in her personal capacity. Thakurain Sri Raj Koer had only a life estate in the taluqa, but in the under-proprietary rights under two transfers she had an absolute estate. In Sukhraji v. Rameshwar Prasad Singh 1937 O.W.N. 811, it was held in respect of these same rights and this same lady, "Where a gift is made of under proprietary rights to a taluqdar in some of his villages, but the taluqdar makes no declaration of his intention to incorporate them into the taluqdari estate u/s 32-A, Oudh Estates Act, the succession to the under-proprietary rights gifted to him will be governed by the rule of the personal law of the taluqdar and these rights cannot be allowed to the merged in the superior proprietary rights of the taluqdar, because that would be to impose upon lands and other property limitation of descent at variance with the ordinary law of descent applicable in the case. In order that there may be a merger the two estates which are supposed to coalesce must be vested in the same person at the same time and in the same right." Late in the day the decree-holder discovered that he could not proceed against the superior, that is taluqdari, rights in village Chaupatti, because the judgment-debtor, having had only a life-interest in those rights, her legal representatives did not hold them as her assets in their hands, but in their own right as heirs of her predecessor-in-interest. In other words they were her legal representatives so far as the under-proprietary rights were concerned but not in respect of the taluqdari property. On the 26th November, 1938, therefore, the decree holder made an application, purporting to be an application for amendment, praying that, instead of execution against the superior proprietary rights, execution should be allowed against the under-proprietary rights. If this is a fresh application clearly it has been made more than 12 years after the date of the decree, the period of limitation allowed by Section 48, Code of Civil Procedure. The question is whether it can be treated as merely an application for amendment. A string of authorities has been cited before us to show that this must be regarded as a fresh application. In Har Sarup v. Balgobind (1896) 18 All. 9 and Mewa Lal v. Ahmad Ali (1911) 8 A.L.J. 17, it was held that an application for attachment cannot be regarded as a continuation of an application for arrest. In Sreenath Gooho v. Yusoof Khan (1880) 7 Cal. 556 and Thiagarayan v. Kannusami Pillai AIR 1918 Mad. 449, it was held that an application for attachment of fresh properties, not comprised in the previous application, cannot be regarded as a continuation of the previous application. In Haya-tunnessa Chowdhurani v. Achia Khatun (1923) 50 Cal. 743, it was held that a decree-holder should not be allowed to add other properties after 12 years from the date of the decree to those mentioned in an application made within limitation. Lala Gobardhan Das v. Dau Dayal (1930) 124 I.C. 43 held the same view as 9 A.L.J.R., 17 : (1911) 8 A.L.J. 17. The next case in Sultan Hasan Mirza Vs. Srimati Nanki Bibi, AIR 1928 Cal 241 . In this case an application was made more than 12 years after the passing of the decree. It contained several prayers concerning procedure and one other for attachment and sale of the judgment-debtor's movables. It was held that the other prayers might be regarded as in continuation of the previous execution proceedings, but so far as the application related to the sale of movables, it must be regarded as a fresh application and barred by time. 3. The next case is Bandhu Singh v. Kayastha Trading Bank (1931) 63 All. 419. It was held that the other prayers might be regarded as in continuation of the previous execution proceedings, but so far as the application related to the sale of movables, it must be regarded as a fresh application and barred by time. 3. The next case is Bandhu Singh v. Kayastha Trading Bank (1931) 63 All. 419. We quote the whole of the head-note in this case because the Appellant in the present case has addressed to us a plea that his efforts to execute his decree have always been thwarted by objections on the part of the judgment-debtor. "An application by the decree-holder for the attachment and sale of new items of property, which had never been mentioned in any of the previous applications, is a fresh application within the meaning of Section 48 of the CPC and, if made more than 12 years after the date of the decree, cannot be entertained. The mere fact that execution proceedings are still pending and have not been struck off at the time of this application is not sufficient to save the bar of limitation. "The mere fact that there has been a prolongation of the execution proceedings, due in part to the objections raised by the judgment-debtor from time to time, would not in itself amount to 'fraud or force' within the meaning of Sub-section (2)(a) of Section 48. The raising of an objection, however frivolous, would not ordinarily amount to practising fraud on the decree-holder, for it can be easily met and disposed of by the Court. Fraud must be of a nature which the decree-holder is not able to discover at the time and which helps the judgment-debtor in deceiving him and gaining time." 4. We next come to Veluthandi Beerankutty v. Ameth Mammu AIR 1936 Mad 623. In this case a less strict view seems to have held, viz., that special circumstances must be shown for the indulgence asked for, in order to circumvent the salutary provision of Section 48 as to limitation, to be granted. We doubt whether such an indulgence can be granted by the Court, but the remark of the Hon'ble Judge is only obiter as he held against the decree-holder in the case before him. 5. We now come to the two cases cited by Appellant's learned Counsel against this strong current of opinion expressed in the rulings already considered. 6. Jhorama Vs. 5. We now come to the two cases cited by Appellant's learned Counsel against this strong current of opinion expressed in the rulings already considered. 6. Jhorama Vs. Viswasarayi Latchanna Dora, AIR 1940 Mad 19 . In this case amendment was allowed after the period of limitation had expired, but the circumstances were very exceptional, vide p. 20, second column of the judgment, "In 1926 the Appellant obtained the attachment of these properties. No doubt it has since been decided that that attachment was illegal. But the matter was obviously a disputed one upon which the attaching Court itself took a different view. Then when the Appellant attempted to have the property which had been attached and sold in 1928, his attempt was frustrated by an order of stay issued by this Court. By that time proceedings to resume the inams had been taken by the Government and it is the contention of the Appellant that had attachment not already been effected he might have validly applied in 1928 for the attachment of these properties. But for the whole of the period 1928 to 1934 he could take no action owing to long continued pendency of the such appeal in the High Court". 7. The property attached were houses and some other items. The High Court had held in 1934 that the superstructure of the houses was liable to attachment but that the rest were "unenfranchised Dorathanam service inams", and as such not liable to attachment. 8. The judgment in AIR 1940 Mad. 1911 considers certain other circumstances and then allows the amendment. But the circumstances were so peculiar that the decision can have little or no bearing on the present case. 9. Shekendarali Meah Vs. Abdul Gafur Choudhury and Others, AIR 1942 Cal 306 is more helpful to the Appellant. In this case it was held that an amendment should not be allowed if it had the effect of substantially altering the character of the execution proceedings, but where, on the objection of the judgment-debtor himself, it was found that the properties included in the application were not liable to attachment, the Court might allow fresh properties to be introduced by amendment The decision followed Gyanendra Kumar Roy v. Rishendra Kumar Roy (1918) 22 C.W.N. 540. 10. We do not think we should follow this decision in preference to the numerous causes of different High Courts already cited. 11. 10. We do not think we should follow this decision in preference to the numerous causes of different High Courts already cited. 11. Appellant has tried to distinguish the present case on the ground that his application is not in from a fresh application with a prayer that it may be regarded as an application in continuation of the previous one, but is an application for amendment. This argument seems to be answered by Oudh Commercial Bank Ltd. Fyzabad v. Bind Basni Kuer 1939 O.A. 325 : A.W.R. (P.C.) 43 : O.W.N. 313. "The question of the character of the application whether it is a fresh application in the sense of Section 48 or not has to be decided on the circumstances of each case. The substance of the matter must prevail over the form of the application." The circumstances of that case were, it is true, different for after the decree there had been a compromise between the parties concerning execution. In that particular case the execution Court had considered the application a fresh one "because the property sought to be sold was not the whole taluqa but only half of the proprietary villages, because interest was to be realised a 8 per cent (the future interest had been fixed at 4 per cent in the original decree but had been changed from time to time by agreement and judicial decision) and because the Appellant had applied afresh to the Court which passed the decree and had been in 1930 a transfer back to Fyzabad". Their Lordships of the Privy Council disagreed. 12. In the present case the property sought to be attached is not part of the property contained in the application of the 13th December, 1937. The legal representatives held the taluqdari property in a different right from the under-proprietary rights. The former cannot be proceeded against at all in execution of this decree against Sri Raj Koer deceased, whereas the latter can. We consider that an application for the substitution of completely different property from the property contained in the application of the 13th December, 1937, must be regarded as a fresh application, even though it be framed as an application for amendment. We therefore dismiss this appeal with costs.