Mt. Bhagwati Kuer and Another vs Narsingh Narayan Singh

Wort, J.—This appeal arises out of an objection petition by a judgment-debtor u/s 47, Civil P.C., objecting to the execution proceedings arising out of a rent suit.

The only point in the case is whether the decree was barred by limitation. The decree for arrears of rent was made on 17th February 1923 and within three years, that is to say, on 9th February 1927, the plaintiff applied for an amendment of the decree. Defendants 2 and 3 on 17th February 1926, objected to the proposed amendment which would have made the plaintiff entitled to a further sum amounting to something like Rs. 75. It was not until 7th August 1926 that the Court came to a decision in the matter, allowing the amendment.

On 31st January 1928 an application was made in execution. It will be noticed that the order allowing the amendment was made more than three years after the date of the decree, and at that date, therefore, the decree was barred by limitation.

The question which arises is what is the true meaning to be placed on para. 4 in Col. 3, Article 182, Limitation Act. Article 182 allows a period of three years limitation for execution of the decree which by para. 1, Col. 3, is from the date of the decree: and under para. 4 (with which we are concerned) where the decree has been amended the period is to run from the date of the amendment. The District Judge has held that as the decree was barred by limitation on the date of the amendment the execution proceedings are not maintainable. The substance of the contention on behalf of the appellant is, that the executing Court is not entitled to look into the history of the decree and it must be satisfied merely with the fact that the date of the application for execution was within three years of the date of the amendment.

A number of authorities have been relied on both sides and these will be taken up in order. Some of them, as will be seen, give no material assistance to the decision of this matter. The first is the case of Kali Prosunno Basu Roy v. Mohan Guha Roy [1898] 25 Cal. 258 and the substantial question raised in that case was whether an order passed on an application for amendment of a decree was review of judgment within the meaning of Article 179, Schedule 2, Clause (3), Limitation Act. It gives us, however, no assistance as the application for review and the order passed thereon were within three years of the original decree. The case, however, of some importance is Mohamaya Prosad Singh v. Abdul Hamid 18 C.W.N. 266. There the decision was given on 23rd December 1902 in the Court of appeal, allowing the plaintiff''s claim granting the decree for arrears of rent. In the decree there was no mention of the amount or the annual rent, or the costs. There was an appeal to the High Court in which the decision was given on 28th April 1905, the appeal being dismissed. Thereafter an application in execution was made m December 1907, but this was dismissed on the ground that the decree could not be executed. An amendment was subsequently made; and the application eventually for execution was made on 2nd October 1909, the decree having been amended on 23rd June 1909. The point of importance is that the learned Judges decided that the case was not barred by limitation by reason of the fact that the decree ultimately passed by the High Court was incapable of execution. It is submitted by the respondent to this appeal that as the decree made by the trial Court in this case was capable of execution the application in execution at the date on which it was made was barred by limitation. The next case is Subramania Pillai v. Seethai Ammal AIR 1921 P.C. 31 but it gives really no assistance to either side in the case, as the only question was whether in a case where a a petition in revision is dismissed a fresh starting point of limitation arises under Clause (1), Article 182.

The case of Raja Kalanand Singh v. Raja Kumar Singh [1917] 2 Pat. 286 was decided by this High Court and it was held that where the amendment was merely a correction in the rata of rent, that amendment in the circumstances did not give rise to a fresh starring point for limitation. If any advantage can be got by the judgment-debtor from that case it is on the assumption that that decision is based on the proposition that the decree as made in the first instance was capable of execution, but it is to be noticed in the judgment that is distinctly stated that the Court is not prepared to say, that there is any general rule applicable in every case to the effect that the amendment of the decree cannot afford a fresh period of limitation, and, of course, this must be so having regard to the wording of para. 4 of the article. Reference has also been made to Rabiuddin v. Ram Kanai Sen [1919] 59 I.C. 186, where it was decided that as the original decree was capable of execution, the amended decree was barred, so far as execution is concerned, by limitation.

There, however, it is to be noticed the application for amendment was made after the first application for execution and that at the data of application for amendment time had already run against the decree-holder. One of the must important decisions on this point is the case of of Rameshwar Singh Bahadur v. Homeshvar Singh AIR 1921 P.C. 31. It was a decision of the Judicial Committee of the Privy Council which was to the effect that the decree as originally framed not being capable of execution was not barred by limitation. Whether the converse is true, that is to say, that if a decree is capable of execution at the time it was prepared it would be barred even although an amendment were made later did not come up for decision and, therefore, was not decided. The case of Sanatan Sant v. Dinabandhu Giri AIR 1921 Cal. 89 is a decision to the same effect. A case in favour of the judgment-debtors is that of Jhaman Lal v. Daulat Ram AIR 1924 Lah 329. But in this case again application for amendment was made after the decree had already been barred by limitation.

A further decision, however, which is in favour of the decree-holder is relied upon, being the case of Durga Prosad Das Vs. Kedarnath Nayek and Another, . In that case a final decree in a mortgage suit was made on 8th May 1924. An application was made for execution on 7th May 1927. On 28th July 1927 an ex parte application was made by the decree-holder for the present appellant being substituted in the place of deceased judgment-debtor 4, but on 17th December 1926 an application for amendment had been made and a further application on 10th May 1927. On 6th June 1927 the Court made its order amending the decree. The Court held that the original decree was incapable of execution. It is to be noticed, however, that when the Court made an order amending the decree on 6th June 1927 it refused to amend the decree by striking out the name of the judgment-debtor 4 who was dead at the time. The argument on behalf of the judgment-debtor was that at the time when the order substituting the present appellant in the place of his deceased predecessor was made, that is, on 28th July 1927, more than three years had elapsed from the date of the decree and therefore it was barred by limitation. It was held that the Court was not entitled to look into the question of whether the amendment was properly made or not or whether the original decree was capable of execution; that Article 182, Clause 4, gave the date of the amendment of the decree for the purpose of limitation and that the Court was not entitled to introduce other considerations into the case and thus defeat the decree-holder. Now it is to be noticed in the case before us that the application for amendment was made within three years of the date of the decree and it is only by the delay made of the learned Judge himself who amended the decree that the date of the amendment is outside the three years'' period of limitation. It seems to me, following the decision last quoted that it is immaterial to consider the validity of the amendment or whether the decree apart from the amendment is -capable of execution. The Act sets out the time from which the period of limitation is to run as the date of amendment and therefore to take into consideration such matters as to whether the decree was capable of execution at the time when it was made was introducing considerations which on the strict meaning of the section are not material. I have noted the fact that the application for amendment was within time and apart from consideration stated above, it seems to me a sufficient reason for holding that the decree-holder is within time in his application in this case. In other words, that the action of the Court in delaying the making of the amendment decree ought not to prejudice the decree-holder as to his rights in respect thereof.

In my judgment therefore the decision of the learned District Judge was wrong and it must be set aside and this appeal allowed with costs.

Kulwant Sahay, J.

I agree.