Naicken Govindan vs Kalliyani Amma and Others

Koshi, C.J.—The short point for determination in this second appeal preferred by the judgment-debtors is whether the execution of the decree in question was hit by the twelve years rule enacted by Section 48, Code of Civil Procedure. The decree under execution is one passed by the Triehur District Munsiff''s Court on 19-2-1113. The execution application wherefrom the second appeal arises was filed on 8-12-1125.

It is common ground that this application was made within three years of the dismissal of the one that immediately preceded it, but it was made beyond twelve years from the date of decree. The decree-holder, however, depended on three grounds to show that it was not hit by the limit prescribed by Section 48.

The, first ground was that there was no judicial disposal of the prior application and that therefore, the application made on 8-2-1125 was only one to revive the earlier one. The second ground was that by virtue of an amendment of the decree u/s 24 of the Cochin Agriculturists Relief Act (Act 18 of 1114), made on 3-8-1115 a new decree had conic into being and that the decree-holder was therefore entitled to a fresh period 1 of twelve years from the said date.

The third and the lust ground wits that even if the amendment did not produce a fresh decree and a consequent fresh lease of life for twelve years, the order amending the decree would amount to a ''subsequent order within the moaning of Section 48(l)(b) and that it gave a fresh period of twelve years from the date when the judgment-debtors committed default in paying the first instalment under the scaled down decree, namely, the last day of Makaram 1115.

The learned District Munsiff repelled all these grounds and held that the application was barred under the twelve years rule. On appeal by the decree-holder, the learned Additional District Judge of Trichur accepted the decree-holder''s contentions under all the three heads and in reversal of the order of the execution Court, held that there as no bar of limitation for the execution application. The judgment-debtors have come up to this Court in second appeal against the learned Judge''s decision.

In our opinion, whether the lower appellate Courts decision on the first and the second grounds be good or not, the order appealed against has to be upheld on the third ground that the order amending the decree u/s 24 of the Cochin Agriculturists'' Relief Act amounted to a ''subsequent order'' within the meaning of Section 48 (1) (b) of the Code of Civil Procedure.

Section 24 of the Cochin Agriculturists''. Relief Act provided inter alia that in the case of a decree passed before the commencement of the Act, the Court that passed the decree shall amend it according to the provisions of the Act, if and when an application in that behalf is made within ninety days of the Act coming into force by a judgment-debtor who is an agriculturist.

Section 7 (3) of the Act provided that the debt scaled down under the Act shall be payable in two equal instalments falling on the last day of Makaram and Karkadagam 1115 and that it default is made in any instalment the whole or the balance, as the case may be, of the debt as scaled down with interest as specified in Section 13 from the date of default shall become immediately payable.

The provision in Section 48(l)(b), Code of Civil Procedure, so far as relevant is to the effect that where the decree'' or any subsequent order directs any payment of which to be made at a certain date or at recurring periods, the date of the default in making the payment of which the applicant seeks to execute the decree shall be the starting point for the application of tire twelve years'' rule.

Clause(a) of Sub-Section 1, Section 48, provides the normal starting point and that is the date of the decree. Admittedly the amendment made on 3-8-1115 was in terms of Section 7(3) of the Cochian Agriculturists Relief Act. To our minds it is difficult to understand why such an order made the Court which passed the decree should not be tested as a ''subsequent order'' within the meaning of Section 48(l)(b).

The order for amendment as also the decree as amended and the provision in Section 48(1 )(b) well go together and the order has to be treated as a ''subsequent order'' within the meaning of the section. We therefore uphold the lower appellate Court''s order that the execution is not hit by die twelve years'' rule.

If authority is needed for the position, it is to be found in a decision of Ghulam Hasan J. (as he then was) reported as - AIR 1943 412 (Oudh) . There the decree under execution was passed on 1924, but the execution application which gave vise to, the Civil Revision Petition before the learned Judge was made only on 2-12-1937, after lapse of twelve years from the date of the decree.

Meanwhile on 23-11-1935, there won an. amendment of the decree under the provision; of Section 5, U.P. Agriculturists'' Relief Act and by the amended decree the debt was payable in six monthly instalments and in default of any of the three instalments the entire decretal amount was to become due.

The execution Court repelled the judgment-debtor''s contention that the execution application made beyond twelve years from the date of the, decree was hit by Section 48, Code of Civil Procedure. In upholding that decision, after referring to the decision in - O.C. Bank v. Bind Basni Kuer AIR 1930 PC 80 v. 26(B) and to an Allahabad decision which followed it and after quoting the relevant portion of Section 48, the learned Judge said:

It may be mentioned that the order amending the decree in 1935 was passed by the Court passing and the decree. This order amending the decree, although not passed on the basis of any composure or agreement of parties, was one passed wider the provisions of a statutory enactment, namely the U.P. Agriculturists Relief Act.

The fact that it was made in exercise of the jurisdiction conferred by the provisions of the statute is no ground for holding that it should not be treated as a subsequent order directing the payment of money at a certain date or at recurring periods, as mentioned in Section 48(l)(b). I hold, therefore that the limitation should be computed from tile date of the subsequent order passed in 1936. The view taken by the Court below is therefore quite correct.

These observations apply with equal force to the present case and we adopted them to reinforce out conclusion, The consistent view of the Metros High Court has been that an amendment of the decree under the corresponding provision of the Madras Agriculturists Relief Act, 1938 (Section 19) did not furnish a fresh starting point for the purpose of Section 48. See - Jagannadham v. Venkatappanna AIR 1943 Mad 765 v. 80 (C) and - Manickam Chettiar Vs. Ramaswami Chettiar and Another,

This view however is bottomed on the ground that the amendment u/s 19 did not bring, into existence a new decree. Under the scheme or the Madras Agriculturists'' Relief Act there was no scope for the argument that the order for amendment will amount to a ''subsequent order'' within the meaning of Section 48(l)(b).

For a proper appreciation of the Madras decisions holding that an amendment of the decree u/s 19 of the Madras Agriculturists Relief Act did not mark the commencement of a fresh period of twelve years for the purpose of Section 48, Code of Civil Procedure, it has to be borne in mind that Section 7 of the Madras Act, which like Section 7 of the Cochin Act provided for scaling down of debts, makes no provision for payment of the scaled down debt in instalments.

No amendment of the decree made under the Madras Act can, therefore, satisfy the requirements of Section 48(l)(b) to furnish a fresh starting point different from the date of the decree. The Oudh case cited above shows that the U.P. Agriculturists Relief Act provides for payment of a debt as per a decree amended under the Act in instalments.

In view of the fact that the order appealed against can be sustained on the ground we have dealt with above it is unnecessary to discuss the other two grounds depended upon by the decree-holder. The second appeal fails in the result and we dismiss it with costs.