Karanakodam Gowdasaraswatha Brahmana Samajam vs Ouseph and Another

M.S. Menon, J.—The decree holder in O.S. No. 43 of 1107 of the Court of the District Munsiff, Ernakulam, is the appellant in this second appeal. His execution petition E.P. No. 423 of 1954 was dismissed by the learned District Munsiff on the ground that it was barred by limitation and the dismissal has been confirmed by the learned District Judge of Anjikaimal by his judgment in A.S. No. 19 of 1955. The main question for decision is whether the order of the District Munsiff dated 3-8-1951 in E. P. No. 1695 of 1950 can be considered as a "subsequent order" within the meaning of section 48 (1) (b) of the Code of Civil Procedure, 1908. The order in E.P. No. 1695 of 1950 reads as follows:-

Judgment debtors are allowed to pay at the rate of Rs. 10/- per month from 6-10-1951 for 6 months and thereafter the balance in a lump or in default in a lump. Rs. 20/- paid today.

and from the payments made in pursuance of the order I must assume that it had the consent of the decree-holder.

Section 48 (1) (b) provides that "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 execution becomes barred only on the expiration of 12 years from "the date of the default in making the payment or delivery in respect of which the applicant seeks to execute the decree". As pointed out in Chitaley''s commentary on the Code of Civil Procedure, 1908, (Volume I, page 630) "there is a conflict of opinions on the question whether an order of an executing Court can operate as a subsequent order under this section".

The facts in 36 Cochin 865 were similar to those before me. In that case Krishnaswami Iyengar, C. J., - after a detailed review of the case law on the subject - came to the conclusion that the order of an executing court can also operate as a subsequent order u/s 48 (1) (b) of the Code of Civil Procedure, 1908.

In a more recent case - AIR 1955 Raj 33 - the matter was dealt with as follows

It appears that there was a conflict of opinion on the question whether an order of an executing Court can operate as a subsequent order under that section. According to certain High Courts, a subsequent order can only be an order passed by the Court which passed the decree. Other High Courts have, however, taken the view that the order may be of any competent Court including a Court of execution. The decision of their Lordships of the Privy Council in - AIR 1939 80 (Privy Council) supports the latter view.

In deciding that case, their Lordships observed that the principle in vogue was that the original decree could not be altered or varied by the parties even with the sanction of the Court. Their Lordships, however, held that they were not in agreement with that view that there could be no restriction of the parties'' liberty of contract with reference to their rights and obligations under the decree and that they did contract up on terms which had reference to and affected the execution, discharge or satisfaction of the decree, such a matter clearly fell under S. 47, Civil P.C., and there was no reason why a compromise or an adjustment, if properly made, could not be recognized. In this view of the matter, the expression "subsequent order" may cover any lawful order passed by an executing Court and it would then follow that where such subsequent order directed any payment of money or the delivery of any property to be made at recurring periods, the period of twelve years beyond which a fresh application for execution could not be filed must be computed from the date of default in making the payment or the delivery.

I entertain no doubt that the correct view is the view expressed by Krishnaswami Iyengar, C.J., in 36 Cochin 865 and it follows that this second appeal has to be allowed. Judgment accordingly. The respondents did not appear in person or through counsel and in view of that I shall not make any order as to costs here or in the courts below.