Oommen Ninan vs Somasundaran Pillai

Varghese Kalliath, J.—The decreeholder who got a decree dated 30-11-1970 for recovery of money filed an execution petition, B.P. 124 of 1981, on 7-8-1981. The suit was for realisation of some amount from the respondent-judgment debtor. A decree was drafted saying that the judgment debtor can pay off the amount in installments and, in default, the decreeholder can apply for the passing of a final decree. This clause in the decree was not in conformity with the judgment. No doubt, in the judgment the plaintiff-decreeholder was entitled to realise the amount. But unfortunately, a proper decree had not been drafted in terms of the judgment. When the decreeholder put the decree in execution, it was found out that the decree as it stood on 7-8-1981 was not enforceable by an execution court since that decree provided for the passing of a final decree. Realising this serious error it seems that the decreeholder did not press, the E. P. and it was dismissed.

The decree holder approached the trial court and wanted the decree to be amended. The decree was amended on 31-7-1985. Of course, the counsel for the respondent submits that the decreeholder applied for amendment of the decree only in June 1984. With the amended decree-holder filed E.P. 162 of 1985 on 9-10-1985. This E.P. was dismissed stating that the E.P. was filed after 12 years from 30-11-1970, the date of the unamended decreeholder has now filed this Civil Revision Petition against the order of the execution court.

The counsel for the decreeholder submitted that the decree as it stood was not an enforceable decree and an enforceable decree came into existence only when the decree was amended. He submits that there was no time limit for amending a decree.

It is significant to note that when the new Limitation Act came into force, the provision for execution of decree was provided in a comprehensive manner in article 136 in the place of article 182 of the earlier Limitation Act. Article 136of the Limitation Act reads thus:

Description of suit

Period of Limitation

Time from which period begins to run

136.

For the execution of any decree (other than a decree granting a mandatory injunction) or order of any civil court.

Twelve years

Where the decree or order becomes enforceable or 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 when default in making the payment or delivery in respect of which execution is sought, takes place:

Provided that an application for the enforcement or execution of a decree granting a perpetual injunction shall not be subject to any period of limitation.

It is significant to note that in article 182 of the old Limitation Act, the starting point of limitation was described on several basis and one of the basis was "where the decree has been amended the date of amendment; or..." Now, the starting point of limitation is described as "when the decree or order becomes enforceable". Naturally, a question has arisen, when exactly a decree becomes enforceable? A decree becomes enforceable only when there is no impediment for the decreeholder to enforce the decree.

This Court had occasion to consider the question of amendment of a decree and the application of article 136of the Limitation Act in the decision reported in Ouseph v Lona (1978 KLT 624). This decision was very much relied on by the counsel for the respondent. Of course, in this decision, the court held that the date that has to be reckoned is the original date of the decree and not the date of the amendment of the decree. In this decision it has been said very clearly thus: "Although the decree underwent a change with its amendment on 24-7-1962, until the date of the amendment, the decree in its original form was enforceable as from the date on which it was passed, that is, 28-6-1961. It was that date which is crucial for computing the period of limitation as provided under Article 136". In fact, the learned Judge has given emphasis to the fact that the decree in its original form was enforceable even before the amendment and from the date on which the decree was passed, namely, 28-6-1961. I am not applying the ratio of this decision to the circumstances revealed in this case. In this case, it is admitted that the decree that was passed on 30-11-1970 provided for the passing of a final decree which implicits that that decree which was passed on 30-11-1970 was not enforceable without the passing of a final decree. So, there is no point in saying that there was an enforceable decree as on 30-11-1970. Perhaps, it may be a mistake. Then the question is who has committed the mistake. Obviously, the answer is that the mistake has been committed not by the decreeholder but by the court itself. Then, the further question is, if the court has committed such a mistake whether the decreeholder has to suffer the consequences of it. My answer is the mistakes or omissions of the court should not cause any prejudice or injury to a suitor and, applying that principle, I must say that the proper and correct understanding of the situation is that the decree that was passed on 30-11-1970 is a decree which was not enforceable and it was not enforceable not on account of the fault of the decreeholder and so the decreeholder cannot be made liable for its consequences. The decree became enforceable only when it was amended and so applying article 136 of the Limitation Act, the starting point has to be determined and I will determine the starting point as the date on which the decree becomes enforceable and, in this case, the decree became enforceable only on 31-7-1985 and so the execution petition filed on 9-10-1985 is within time and the decree is executable.

In the result, I set aside the order of the court below and allow this Civil Revision Petition. I direct the court below to take E.P. 162 of 1985 on its file and proceed with the E P. according to law. No costs.