Muhammad Ismail vs Patham Bivi Ammal (Died) and Others

(1) The short question that arises for determination is whether a decree, which was amended after it became barred by limitation, can be executed

relying upon the date of the amendment of the decree as a fresh starting point of limitation under Art. 182(4) of the Limitation Act.

(2) In this case a compromise decree was passed on 21-9-1954 and the main terms of the compromise decree show that all other defendants

except the first defendant were exonerated from the suit claim. But the preamble portion read just the other way round i.e., exonerating the first

defendant and making the other defendants liable. when disputes arose between the parties evidently in view of this discrepancy the decree-holder

got the decree amended on 3-11-1959 by which the preamble portion was brought into conformity with the operative portion of the decree

making the first defendant liable. Even though the judgment-debtor raised the objection that the decree was barred by limitation and therefore the

court had no jurisdiction to amend the decree the court passed an order amending the decree, subject to the question of limitation being raised at

the later stage and it is this reservation which has given rise to controversy between the parties. The trial court dismissed the execution petition,

holding that by this reservation it was open to the judgment-debtor to raise the question of limitation. The learned district Judge, in appeal, took a

contrary view and allowed the appeal, and directed execution to proceed. Hence, the present appeals by the judgement-debtor.

(3) As regards the effect of an amendment under Art. 182(4) of the Limitation Act, the Bench of this court in Allada Lakshmikanta Rao Vs.

Nadella Ramayya, has held that the time shall commence from the date of the amended decree under Art. 182(4) even though at the time of the

amendment the decree had become barred by limitation. The contrary view taken by Madhavan Nair J. in Ahmed Kutty v, Kottakat Kutti, ILR 56

Mad 458; Karuveeppil Veera Vunni''s younger brother Ahammad Kutty and Others Vs. Kottakkat Kuttu, was referred to and expressly

dissented from. The Bench took the view that the observation of the Privy Council in AIR 1932 165 (Privy Council) was authority for the position

that there was no jurisdiction for the court to add any qualification to column 3 of the Art. 182(4) so as to add he words ""provided the decree is

amended before it became barred by limitation.

(4) The question of the scope of an amendment arose for consideration in alter Full Bench judgement of this court in Paladugu Veera Ramachandra

Rao Vs. Paladugu Parasuramayya and Another, where the amendment was made when the decree could not be executed by reason of the expiry

of 12 years under S. 48 C. P. C. The Full Bench held that an amendment of a decree to bring it in accordance with the judgement does not have

the effect of starting a fresh period of limitation on the ground that Art. 182 has clearly left the provisions of S. 48 C. P. C. untouched. The

observations of the learned Judges of the Full Bench at pages 354 and 367 show that the Full bench has accepted the view that an amendment of

the decree even though barred by limitation, would furnish a fresh starting point of limitation under Col. 3 of Art. 182(4).

(5) The same view has been taken in Kollepara Venkata Reddayya and Others Vs. Muthangi Kondala Rao, in which it was held that an

amendment of the decree, even though barred by limitation at the time of the amendment, would furnish a fresh starting point of limitation under

Art. 182(4) column 3, and that it was not open to the court executing the decree to entertain any objection from the judgement-debtor that the

amendment was invalid. In view of the decisions referred to earlier, it must be held that the date of the amendment would furnish a fresh starting

point of limitation.

(6) Learned counsel for the appellant, however, contended that in this case the amendment was not unqualified but that it was granted subject to a

reservation of the right of the judgement-debtor to raise the plea of limitation. It is unfortunate that the court should have made this reservation

without fully appreciating the implication of Article 182(4). Either it should have refused the amendment, exercising the discretion in favour of the

judgement debtor on the ground hat no case was made out for amendment of a decree which was made out for amendment of a decree which had

become barred by limitation. Equally it could have allowed the amendment without any qualification that the discrepancy was an inadvertent one

committed by the clerk of the court who drafted the decree. Learned counsel for the respondent contends that the effect of this reservation is

nothing more than that if on the amended decree any plea of limitation is available to the judgement-debtor he could avail himself of it.

(7) Once the decree is amended, Article 182(4) is attracted and it is impossible to conceive of any objection as to limitation subsisting thereafter.

In other words, the reservation made by the trial court while directing the amendment achieves no purpose, in view of the automatic operation of

Art. 182(4).

(8) The appeals therefore fail and are dismissed, but, in the circumstances, without costs. No leave. All other objections as to L. R. etc., shall be

decided by the trial court executing the decree.

(9) Appeals dismissed.