Bapu and another vs Shankar Lal

Palnitkar, J.—This is civil second appeal No. 152/2 of 1950 preferred by the legal representatives of the judgment-debtor. The point of law raised by the learned advocate for the appellant Shri Laxman Rao Ganu refers to the interpretation of S. 48, Cl. (1) (b), C. P. C.

The facts briefly are that on 21st Amardad 1340 F, the respondent obtained a decree against the ancestor of the present appellants for about Rs. 1664-14-6. The execution petition was presented on 23-7-1341 F and it was subsequently dismissed for default on 7-8-1341 F. Some time after this in 1342 F the judgment-debtor filed a petition under S. 14 of the Regulation of 1342 F which pertains to the assistance to be rendered to indebted agriculturists. Under the provisions of that Section the court is empowered to give suitable instalments to an agriculturist. On 10-9-1342 F the petition of the judgment-debtor was allowed by the court of first instance and six instalments were made and it was ordered that the first instalment was to be paid on 1-7-1343 F.

After this, several execution petitions were filed. We need only mention the execution petition preferred on 28-5-1354 F which was dismissed for want of prosecution. The present petition for execution was filed on 6-5-1356 F in which a prayer for attachment and sale of the immovable property was made. On behalf of the judgment-debtor an objection was raised that the execution petition being beyond 12 years from the date of the decree the fresh prayer for attachment of immovable property could not be entertained. The trial court upheld the contention of the judgment-debtor and dismissed the execution petition.

On appeal the lower court came to the conclusion that the date of the decree should be regarded as 10-9-1342 F when instalments were allowed to the judgment-debtor and not 21st Amardad 1340 F. It therefore held that the execution petition was within 12 years and directed execution to issue.

In this appeal Shri Laxman Rao Ganu the learned advocate for the appellants contends that the date of the decree should be considered as 21st Amardad 1340 F when originally the decree was passed and the subsequent amendment fixing payment by instalments dated 19-9-1342F would not be regarded as subsequent order for the purpose of S. 48, Cl. (1) (b), C. P. C. He referred to -- Paladugu Veera Ramachandra Rao Vs. Paladugu Parasuramayya and Another, ; -- ''Manickam Chettiar v. Rama Swamy Chettiar'', AIR, 1945 Mad 70 (B) and -- Ganeshmal Pasmal Vs. Nandlal Tulsiram, We perused the judgments carefully. The question to be considered is whether the order fixing payment by instalments dated 10-9-42 F amounts to "any subsequent order" as mentioned in S. 48, Cl. (1) (b), C. P. C.

We are of the opinion that where a subsequent order directs payment of money at a future date, that order will fall into the definition of S. 48 (1) (b), C. P. C., as stated above and the period of 12 years will run from the subsequent date or dates mentioned in the order. It is clear that when the order dated 10-9-1342F has fixed new dates for the payment of the instalments the decree-holder could not file an execution petition unless and until those dates fall due. It is not an ordinary amendment of the decree as is mentioned in S. 151, C. P. C. It is clearly a subsequent order.

In Paladugu Veera Ramachandra Rao Vs. Paladugu Parasuramayya and Another, , the amendment made was under S. 152, C. P. C, which provides for amendment of judgments and decrees in case of clerical or arithmetical mistakes or errors arising from any accidental slip or omission. Such is not the case here. The court considered the petition of the judgment-debtor for payment of the decretal amount by instalments under the provisions of the said specific Regulation and applied its mind to the facts of the case and passed a subsequent order clearly altering the original decree laying down new dates for payment of the decretal amount in instalments. Manickam Chettiar Vs. Ramaswami Chettiar and Another, , follows the decision of '' Paladugu Veera Ramachandra Rao Vs. Paladugu Parasuramayya and Another, )'', and therefore for the reasons stated above it is not relevant.

In Ganeshmal Pasmal Vs. Nandlal Tulsiram, (c),the amendment of the decree related to clarifying the liability of a surety. There was no fresh order making payment of the decretal amount by instalments as it is here. The said ruling is therefore not applicable. As observed above, we are clearly of the opinion that the order dated 10-9-1342 F is a subsequent order and therefore the period of 12 years will be computed from that date. The present execution petition, (from that date) is well within 12 years. There is therefore no force in the contention of the learned advocate.

With regard to interest we are of the opinion that the decree-holder is not entitled to get the same. The judgment and decree of the lower court therefore is upheld with the modification in respect of interest. The respondent will get proportionate costs.