MEHROTRA, C. J. : This is a miscellaneous appeal by the judgment-debtor arising out of an execution matter. The decree which is now sought to be executed was passed on the 5th October 1928. The decree holder took out execu­tion on a number of occasions and ultimately in 1934 an application was made to the executing court for certifying adjustment of the decree, under which it was given out that the decree was adjusted for Rs. 7,500/- and the amount was to be paid by instalments. Certain instalments were paid and the judgment-debtor committed default in payment of some other instalments. The decree-holder then made an applica­tion for execution of the decree and the application was rejected on account of limitation. On an appeal to the Calcutta High Court, the case was remanded. Ultimately the execution was struck off on the 16th November 1942 on the ground that the decree-holder did not take any steps. Thereafter on the 30th March 1943 a fresh application was made for execution. This application was also dismissed on the 12th January 1944 and then on the 24th February 1944 the decree-holder presented another application for execution. A point was raised in this execution that it was barred by section 48 of the Civil Procedure Code. The Subordinate Judge upheld the contention of the judgment-debtor. But on appeal the High Court of Calcutta set aside the order of the trial Court and held that the execution is not barred by the provisions of section 48, Civil Procedure Code. Thereafter the execution went on. On the 8th March 1960, the decree-holder tried to attach some immoveable properties which, he alleged, the judgment-debtor got under a will. The probate proceedings in respect of the said will were pending. The contention raised by the judgment-debtor was that this application amounted to a fresh application for execution and as it was filed beyond twelve years from the date of the decree, it was barred by section 48, Civil Proce­dure Code. The execution Court held that the appli­cation is a further step taken in the execution case No. 8 of 1944 and is not a fresh application as contemplated by section 48, Civil Procedure Code. It is against this order that the present appeal has been filed by the judgment-debtor. (2) Section 48, Civil Procedure Code provides as follows : "48. The execution Court held that the appli­cation is a further step taken in the execution case No. 8 of 1944 and is not a fresh application as contemplated by section 48, Civil Procedure Code. It is against this order that the present appeal has been filed by the judgment-debtor. (2) Section 48, Civil Procedure Code provides as follows : "48. (1) Where an application to execute a decree not being a decree granting an injunction has been made, no order for the execution of the same decree shall be made upon any fresh application presented after the expiration of twelve years from- (a) the date of the decree sought to be executed, or, (b) where the decree or any subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods, the date of the default in making the pay­ment or delivery in respect of which the applicant seeks to execute the decree. (2) Nothing in this section shall be deemed- (a) to preclude the Court from ordering the execution of a decree upon an application presented after the expiration of the said term of twelve years, where the judgment-debtor has, by fraud or force, prevented the execution of the decree at some time within twelve years immediately before the date of the application; or (b) to limit or otherwise affect the operation of article 183 of the First Schedule to the Indian Limi­tation Act, 1908." This section lays down the maximum period within which the execution of the decree is to be made. By an application dated the 21st November 1959 the decree-holder stated that as the judgment-debtor had no property in his name, a warrant of arrest was issued against him for detention in civil prison. In spite of repeated issue of warrant of arrest due judg­ment-debtor could not be arrested. In the meantime the judgment-debtor had acquired some properties through a will and the probate case was pending. The decree-holder thus had no other alternative than to fall back upon the properties acquired by the judgment-debtor through the will and the decree-holder asked for time to take steps against the judg­ment-debtor after disposal of the probate case. On the 8th March 1960 the decree-holder prayed for time to specify the properties against which the attachment is to be effected. On the 8th March 1960 the decree-holder prayed for time to specify the properties against which the attachment is to be effected. The application for attachment of the properties which the judgment-debtor is alleged to have acquired in the meantime under the will, is said to be an application for execu­tion of a decree. Section 48, Civil Procedure Code prohibits the execution of any decree upon any fresh application presented after the expiry of twelve years. The question to be considered is whether this appli­cation by which the decree-holder sought attachment of the property of the judgment-debtor acquired under the will can be said to be a fresh application or it is only a continuation of the execution of 1944. In the application for execution filed in 1944, the description of the property sought to be attached was not given, although the prayer was for execution of the decree under O. 21, R. 11, Civil Procedure Code by sale or attachment of the property. When the matter came back on remand from the Calcutta High Court, the decree-holder made an amended applica­tion for execution of the decree dated the 5th January 1955 in which in column 10 the prayer was that as the judgment-debtor has not paid till today the. decretal amount and there are no moveable or im­moveable properties in the name of the judgment-debtor, the judgment-debtor be arrested and by putting him in civil jail the amount due to the decree-holder be realised. This proceeding went on. But the judg­ment-debtor could not be arrested, till the decree-holder came to know of some properties which have been acquired by the judgment-debtor in the mean­time under the will and he asked for the attachment of the said property. It is contended by the decree-holder that the application of March 1960 is only a continuation of the earlier execution started in the year 1944 and it cannot be said to be a fresh applica­tion for execution. (3) The application for execution dated the 5th January 1955 by which it was prayed that the judg­ment-debtor be arrested and by putting him in civil jail, the amount due to the decree-holder be realised, was itself filed beyond 12 years from the date of the default committed after the order in the execution case of 1934 was passed. (3) The application for execution dated the 5th January 1955 by which it was prayed that the judg­ment-debtor be arrested and by putting him in civil jail, the amount due to the decree-holder be realised, was itself filed beyond 12 years from the date of the default committed after the order in the execution case of 1934 was passed. But no objection was taken that the said application is barred by section 48 Civil Procedure Code. This application was treated to be in continuation of the old execution started in the year 1944 and on that basis the orders were passed from time to time for the arrest of the judgment-debtor till 1959, when the decree-holder came to know of the property acquired by the judgment under the will. He then applied for attachment of the aid property This also shows that the execution which started in the year 1944 continued and it never terminated by any final order. If the execution which started in 1944 was continuing, then the application made in March I960 asking for attachment and sale of the property cannot be regarded as a fed! application for execution of the decree. (4) Dealing with the question of Article 182, Indian Limitation Act their Lordships of the Supreme Court in the case of 'S. K. Sahgal v. Maharaj Kishore Khanna', A I R 1959 S C 809 observed : "It is quite clear that if the application for execu­tion with which we are concerned was made in a pending execution proceeding, no question of the application of Art. 182 arises. It has long been re­cognised by the Courts in our country that a right to continue a proceeding which is pending is aright which arises from day to day and no question of any bar of limitation with regard to the enforcement of such a right arises." Applying that principle to the facts of the case it is evident that what the decree-holder wanted by an application of the 8th March 1960 was to continue the execution proceedings started in 1944 and thus the question of limitation would not arise at all, (5) It will be convenient now to refer to some of the authorities cited at the Bar. (6) Mr Goswami for the appellant refers to the case of Lakshminarasinga Rao v. Balasubrahmanyam, AIR 1949 Mad 251. (6) Mr Goswami for the appellant refers to the case of Lakshminarasinga Rao v. Balasubrahmanyam, AIR 1949 Mad 251. The facts are not set out in great detail in this case. The only observation referred to is that when the application for execution filed be­yond twelve years of the preliminary decree asks for reliefs in addition to those asked for in an execution petition filed within that period, the petition filed beyond twelve years cannot be considered as one in continuation of the earlier petition filed within the period The question whether the application filed beyond twelve years is a fresh application or a con­tinuation of the old application is a question which has to be determined in the light of the circumstances of each case. (7) The next case referred to is Ram Ranbijaya Pra4d Singh v. Kesho Prasad Singh, AIR 1941 Pat. 635. Reliance is placed on the following passage at p. 635 of the report: "There is a decision of this Court, and there are decisions of at least four other High Courts and of the Privy Council, that an application by which it is sought to proceed against properties other than those mentioned in the first execution petition is a fresh application within the meaning of S. 48." Rowland J. has pointed out in this case at p. 637 as follows : "There are two classes of cases in which the ap­plication of S. 48, Civil Procedure Code has to be considered ; one is where an application to execute a decree is presented which is in form a fresh applica­tion and the other is where the executing decree-holder asks to be allowed to amend an application already on the file. In the former case the Court will see whether the apparently fresh application is in substance an application to continue and carry on proceedings already commenced. Where this is the nature of the application it has been held not to be a fresh application so as to be barred by S. 48 of the Code but to be an application in continuation of the, proceedings already commenced so that the decree-holder can lawfully be permitted to proceed with it. In cases where the application is to amend an execu­tion petition, it may be that it is presented on a date on which, had it been a new application, no question of limitation would arise. In cases where the application is to amend an execu­tion petition, it may be that it is presented on a date on which, had it been a new application, no question of limitation would arise. Where this is so, it seems : the practice has been not to inquire whether such an amendment is strictly in accordance with law because even if it is not, no prejudice is caused to either party by allowing it. But where the date on which an application to amend an execution petition is pre­sented is a date on which a fresh application to exe­cute the decree would have been barred by S. 48 then the Courts will apply the same principles as they would in dealing with an application which is in form a fresh application .. . ." (8) The counsel for the respondent referred to-the decision of the Privy Council in the case of Oudh Commercial Bank Ltd. v. Bind Basni Kuer, 43 Cal W N 501 : (AIR 1939 P C 80) where the application was held to be a continuation of the previous execution. (9) The next case referred to is Mahendra Rao v. Bishambhar Nath, AIR 1940 All 270 (FB). This case lays down that the question whether an application is a fresh application or is merely one to revive the pre­vious execution proceedings has always to be decided upon the circumstances of each case and in each case the substance of the matter must prevail over the form of the application. This case has referred to the observations of their Lordships of' the Privy Council in the case of the Oudh Commercial Bank Ltd. which I have already referred to. (10) The respondent further relies on the case of Shiva Shankar Das v. Mufti Syed Yusuf Hasan, AIR 1934 All 481 (FB), wherein it was held by the majority of the Full Bench that in the facts of that case the appli­cation was not a fresh application and was not barred by S. 48, Civil P. C. It was observed by Rachhpal. Singh J., at p. 489 that where an application for execution is made which is not in proper form or is otherwise defective, the duty of the Court is to dispose of it. It can give opportunity to the decree-older to amend the application, or it can reject it. Singh J., at p. 489 that where an application for execution is made which is not in proper form or is otherwise defective, the duty of the Court is to dispose of it. It can give opportunity to the decree-older to amend the application, or it can reject it. But if on a defective application for execution no order is passed, it will remain pending. (11) It is no use referring to the other cases cited1 at the oar as each case will have to be decided on its' own circumstances. The question whether an application is a fresh application may have to be decided from the form and contents of the application and from the position of the earlier execution proceedings. There may be cases in which although the previous, execution has been struck off, still it may be held that the second execution application though in form of an application for execution was not a fresh application but a revival of the previous execution. There maybe cases where though the fresh application is ostensibly an application for amendment of the earlier application, still it is a fresh application for execution as fresh property has been sought to be brought in' and fresh persons have been sought to be introduced as parties against whom the decree is sought to be executed. If, however, the execution is continuing and if in the course of that execution proceeding fresh prayer is' made, it cannot be said that such an application is a| fresh application. As observed by their lordships of the Supreme Court in the case of AIR 1959 SC 809 to which I have already referred, no question of limita­tion would arise in such cases. The application made in 1944 did not contain the list of the properties. An-effort was made to find out some properties belonging to the judgment-debtor. That effort having failed, an application was then made to execute the decree by arrest. The decree holder having failed in his attempt to get the judgment-debtor sent to civil prison, asked for the attachment of the property which in the mean­time the judgment-debtor had acquired under the will. All these steps were taken in the execution started in 1944 and which was still pending. The decree holder having failed in his attempt to get the judgment-debtor sent to civil prison, asked for the attachment of the property which in the mean­time the judgment-debtor had acquired under the will. All these steps were taken in the execution started in 1944 and which was still pending. The application .of March 1960 is not in the form of an application under O. 21, R. 11, Civil P. C. and cannot be said to be a fresh application. (12) Mr. Goswani contends that under 0.21, R. 17, Civil P. C,, on receiving an application for the execu­tion of a decree as provided by R. 11, sub-r. (2), the Court shall ascertain whether such of the require­ments of Rules. 11 to 14 as may be applicable to the case have been complied with; and, if they have not been complied with, the Court may reject the application, or may allow the defect to be remedied then and there or within a time to be fixed by it. It only gives power to the Court to permit the decree holder to remove any defects. The power to grant amendment of the decree (sic) is not to be exercised after the expiry of twelve years from the date of the decree. (13) Reference was made to the case of 'Hanamappa Shiddappa v. Ningappa Rangappa, AIR 1948 Bom 116. In this case the execution was sought by sale of certain land of the judgment-debtor who was an agriculturist. The application was sent to the Col­lector. As the decree could not be satisfied by the sale of the property, the decree-holder asked for amend­ment of his application by the addition of a prayer for the attachment arid sale of a house belonging to the judgment-debtor. The lower court refused the amend­ment as twelve years had expired. Against this order an appeal was filed and it was held by the High Court that the Court had a reasonable discretion to accept the amendment. The decree-holder was not shown to have been guilty of any lack of diligence in prosecuting his execution and it would be altogether unfair to him to refuse his amendment in view of the circumstances of the case. (14) Another case referred to is 'Shekendarali Meah v. Abdul Gafur, AIR 1942 Cal 306. The decree in this case was obtained in the year 1924. (14) Another case referred to is 'Shekendarali Meah v. Abdul Gafur, AIR 1942 Cal 306. The decree in this case was obtained in the year 1924. Steps were taken by the decree holder to put this decree into execution. The last execution was instituted on 6th February 1936. By that time the decree-holder suc­ceeded only in realising a sum of Rs. 250/-from the judgment-debtors. In the execution application the decree-holder asked that certain properties mentioned in the schedule might be put up for sale. The attach­ment of the moveable properties of the judgment-debtors was also asked for. The application was in accordance with law. During the course of the execu­tion proceeding some of the judgment-debtors put forward a claim in their capacity as mutwallis of the properties which it was sought to attach to the effect that these properties were exempt from attachment. This objection was allowed on 30th January, 1937. A suit was filed under O. 21, R. 63, Civil Procedure Code. The properties which re named under attach­ment could fetch only a small price and only a part of the decretal amount was realised. The decree-holder filed a further list of properties in the pos­session of the judgment-debtors and asked far the permission of the Court to proceed against these pro­perties which were mentioned in a petition filed by the decree-holder on 10th November 1938. The judgment-debtors filed an objection under S. 47 of the Civil Procedure Code with reference to this petition stating that it was a fresh application and was filed beyond twelve years. The objection was dismissed by the trial Court. On appeal the High Court upheld the decision of the trial Court. The following observation at page 307 of the report is apposite : "The law requires that a decree holder in executing a decree should indicate in his application for execu­tion the various modes of execution, which he wishes the Court to adopt. He should also as far as possible indicate the properties of the judgment debtors against which execution proceedings should be taken, it being of course understood that he should not take execution proceedings against more items of property than he considers sufficient to satisfy his decree, provided the application for execution is in accordance with law and has been duly registered. If a subsequent appli­cation is filed for the purpose of amending the list of properties against which the decree holder wishes to proceed, the Court is vested with a reasonable discre­tion, to deal with the matter according to the circum­stances of the case. Of course, to accept such a peti­tion would result in effect in the amendment of the application for execution. Such an amendment should not be allowed if it has the effect of substantially altering the character of the execution proceedings, but in a case such as that with which we are now dealing, in which it is discovered on the objection of the judgement-debtors themselves that execution could not proceed against the attached properties, I am of opinion that the Court would exercise a rea­sonable discretion in accepting a supplementary peti­tion such as that which was filed by the decree-holders on 10th November 1938." (15) The next case is 'Subhas Chandra Deb v. Subhashini Deb, AIR 1959 Assam 25. In this case the application for execution was made in the year 1952 and the decree which was sought to be executed was dated 1st September 1941. The judgment-debtor filed objection to the competence of the execution proceed­ings and it was found on the 11th September 1954 that the application was defective in the sense that it did not mention the property which was sought to be attached. On the same date the Court directed the decree-holder to remedy the defect. The time was further extended till 29th October 1954, when the application was filed. Objection was taken that the execution was barred by S. 48, Civil Procedure Code. This objection was repelled. It was held by the Court that the discretion of the Court for leave to amend under O. 21, R. 17 (1) is not fettered and the time for such amendment may exceed the limit of 12 years from the date of the decree. The Court having exer­cised its discretion and allowed the amendment even though after 12 years from the date of decree it operated as an amendment under O. 21, R. 17 (1) and (2) with its consequent retrospective effect so as to save limitation under S. 48, Civil Procedure Code. The Court having exer­cised its discretion and allowed the amendment even though after 12 years from the date of decree it operated as an amendment under O. 21, R. 17 (1) and (2) with its consequent retrospective effect so as to save limitation under S. 48, Civil Procedure Code. (16) It is, therefore, clear from these decisions that the power to amend is unfettered and in this case the Court having allowed the decree-holder to attach the properties, it cannot be said that the discretion was riot properly exercised. In any view of the matter the execution is not barred by S. 48, Civil Procedure Code. (17) In the result, therefore, there is no force in this appeal, and it is rejected. But in the circum­stances the parties will bear their own costs. Appeal rejected.