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Judgment
K.B. Siddappa, J.—This Revision is filed against the order passed in E.P.No. 66/88 in O.S. No. 172/71 on the file of Subordinate Judge, Nandyal.
The Bank filed the Suit for recovery of the amount. It was decreed. The decree is dated 7-2-1972. The Judgment-debtors did not prefer any appeal. However, they preferred A. A.O.No. 326/73 on the file of the High Court. While dismissing the said A.A.O., the High Court directed the Judgment-debtors to pay the amount in instalments. The first instalment was to be paid on or before 31-5-1976. The High Court''s order is dated 5-4-1976. Again, the judgment- debtors filed C.R.P.No. 1569/76 to extend the time for payment of the first instalment. The High Court, by its order dated 15-7-1976, extended the time for payment of the first instalment upto 31-8-1976. However, the Judgment- debtors did not pay the amount within the time granted. The Decree-holder also did not file any E.P. until 24-3-1988, seeking reliefs against the person and property of the Judgment-debtors.
The case of the Judgment-debtors is that as per Article 136 of the Limitation Act, Execution Petition should be filed within 12 years from the date of decree, and where there is a direction to pay the money at a certain time, from the date of default in making the payment. Their argument is that the decree is passed on 7-2-1972. According to them, the High Court directed to pay the first instalment on or before 31-5-1976. Therefore, the period between 7-2-1972 and 31-5-1976 cannot be excluded because in this period the Decree-holder ought to have executed the decree. If this period is (sic. not) excluded for the purpose of limitation, the Execution Petition filed on 24-3-1988 is beyond limitation.
This interpretation was not accepted by the lower Court. The lower Court held that the decree passed in the Suit O.S.No. 172/71 merges with the direction given by the High Court in A. A.O. granting time to pay the decretal amount in instalments, commencing from31-5-1976. The period from 7-2-1972 to 31-5-1976 should also be excluded for the purpose of limitation. In this case, E.P. has to be filed on or before 31-8-1988 (sic. 31-5-1988). But it was filed on 24-3-1988. Therefore, the E.P. is within time.
I do not see any force in the submission made by the learned counsel for the Revision Petitioners.
The learned counsel appearing for the respondent, supporting the order of the lower Court submitted that the matter is covered by the judgment of this Court in Posani Ramachandraiah Vs. Daggupati Seshamma, . In this case, the Bench of this Court held that the limitation starts from the date of decree of the appellate Court and that the decree of the first Court merges with the decree of the appellate Court. The Bench also held as follows:-
"9. Thus, it could be seen that the present Article 136 substantially re- produces the repealed Section 48 C.P.C. and re-places Article 182 of the old Limitation Act. Therefore, we cannot interpret Article 136 in the light of or by contrasting with Article 182. On the other hand, it has to be interpreted only in the light of repealed Section 48 C.P. C. Article 136 says that the period of limitation begins to run when the decree or order becomes enforceable. The repealed Section 48, C.P.C. says that no order for execution of a decree shall be made after the expiration of twelve years from the date of the decree sought to be executed. The meaning of the words "from the date of the decree sought to be executed" in Section 48 C.P.C. and the words "where the decree or order becomes enforceable" in Article 136, is practically the same. Section 48 C.P.C. has been the subject matter of interpretation by a number of High Courts. It is unnecessary to refer to all of them. Suffice if we refer to two decisions of the Madras High Court which are binding upon us.
In Nacharammal and Others Vs. Veerappa Chettiar, a Division Bench of the Madras High Court has held that where an appellate Court passes a decree, it takes the place of a decree of a trial Court and it is the decree of the appellate court only which becomes capable of execution, and consequently, the period of twelve years u/s 48 C.P.C. commences from the date of such appellate decree and not from the date of the decree of the trial Court. In S.T.M. Vyravan Chettiar Vs. R.M. Rayalu Ayyar Nagaswami Ayyar and Co., , after reviewing the case-law on the subject, Subba Rao, J., (as he then was) held, that u/s 48 C.P.C. the period of 12 years should be computed from the date of the appellate decree, as the original decree would merge in that of the appellate Court. He observed that the terminus a quo in Section 48 would be the decree of the appellate Court, irrespective of the manner of the relief given by the appellate decree. This is on the well established principle that the decree of the first Court merges in the appellate decree."
The Bench interpreted Article 136 of the Schedule that where the decree or order becomes enforceable 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, when default in making the payment or delivery in respect of which execution is sought, takes place, the limitation starts from later date.
The provision of Law is quite clear. In the case on hand, the decree is dated 7-2-1972. But, subsequently, the High Court granted time for payment of the decretal, amount in instalments. It also extended time till 31-8-1976. Therefore, the limitation certainly starts from 31-8-1976 in case of default of payment of the instalments.
The above view of the Bench and the interpretation given of Article 136 supports the Bench judgment of Calcutta High Court in Kartic Chandra Mukherjee Vs. Bata Krishna Roy and Others, . In this case, the Calcutta High Court held that the order of the High Court made in 1928 recording the compromise was in the nature of subsequent order made by a competent Court u/s 48(1)(b) and that in any case as the parties had by their agreement substituted the compromise decree for the original decree, time for the execution of that decree starts from 1928 onwards and not from 1920. Therefore, the execution is not time barred.
In view of the above reasoning, I hold that in the case on hand, tune begins to run from 31-8-1976 upto which the High Court granted time for payment of decretal amount in instalments. Therefore, the Execution Petition which was filed on 24-3-1988 is well within time. I hold accordingly,
The learned counsel appearing for the Revision Petitioners further submitted that the person and property cannot be simultaneously proceeded against, and that procedure is not valid. This contention of the learned counsel has also no force in view of the judgment; in Bethina Verikunna v. Sati Chunnilal Mookhand, Registered Firm, Kakinada, by Managing Partner, Chunnilal 1960 ALT 610 : 1960 (2) An.W.R. 66.
It was also the contention of the learned counsel for the Revision Petitioners that defendant No. 2 cannot be arrested because he is living beyond the jurisdiction of the Court. Defendant No. 2 is living in Lakkireddipally in Cuddapah District. In such a case no proceedings in the way of arrest warrant can be taken against him, etc.
In the Execution Petition, defendant No. 2 is shown as living at Chengalamarri, within the jurisdiction of the Court. In such a case, the arrest warrant can be ordered. Moreover, the trial Court rightly held that in case where the property to be attached or a person sought to be arrested is outside the jurisdiction of the Court Section 136 C.P.C. envisages that the Court may, in its discretion, issue warrant of arrest and make an order of attachment, and send to the District Court, within the local limits of whose jurisdiction such person or property resides or is situated. Thus, it can be seen that there is no bar for attaching a property beyond the jurisdiction and arresting a person residing outside the jurisdiction of the Court.
For the aforesaid reasons, I do not see any substance in the submissions made by the learned counsel for the Revision Petitioners.
Hence, the Civil Revision Petition is dismissed and in the circumstances without costs.