Polavarapu Ankinnedu vs Sri Bavaji Mutt, Singarayapalam

Qamar Hasan, J.—This miscellaneous appeal is directed against the appellate order dated 9th December 1954 of the Subordinate Judge, Gudivada, in A. S. No. 20/54 by which he reversed the order of the District Munsif, Gudivada setting aside the sale of the plaint B scheduled property in execution of the decree passed in O. S. No. 234 of 1947.

The respondent was the plaintiff in O. S. No. 234 of 1947 the object of which was to secure possession of the demised land as detailed in A schedule and recover Kattubadi amounting to 36 bags of paddy of the value of Rs. 381-14-9 for the Fasli 1356. There was a prayer also for future profits at the same rate till delivery of possession. These reliefs were sought against Chaprala Sobhanadri who was the first defendant in the suit of whom no more notice is required to be taken since he is not a party to this appeal. The appellant who was the 2nd defendant in the suit, had to answer to the plaintiff-respondent for the security which he had offered for the due payment of the kattubadi for Fasli 1356. In order to discharge his liability as a guarantor, he deposited Rs. 360/- during the pendency of the suit and most probably that was the reason that no charge was created on B schedule property in the decree that followed.

As ill luck would have it, the respondent, who had secured the decree, filed I. A. No. 24/51 and in terms of the prayer therein the decree was amended on 8-1-51 without notice to the appellant. Accordingly a further clause was added to the decree "that B scheduled property shall stand charged for the amount due.'''' The result was that the B schedule land became liable not only for the kattubadi for Fasli 1356 but also for subsequent profits accrued due up to 1360 F.

Having unilaterally obtained the above amendment the respondent presented E. P. 107/51 on 10-3-1951 praying only for delivery of possession. That E. P. was however dismissed for nonpayment of batta on 26-4-51. In the next month he filed the second E. P. 147/51 on 1-5-51 for the same relief. This time notices were issued to the principal judgment-debtor and the appellant but it was returned unserved as they were said to have refused to accept the notices. The Executing Court ordered delivery of the demised land but as the respondent eventually failed to deposit batta, the E. P. was dismissed on 4-9-51.

The respondent then came forward with his E. P. 340/51 on 15-10-51 for delivery of possession of A. scheduled property and for sale of B scheduled property for arrears of profits which had fallen due for 1356 F. to 1360 F. On this petition delivery was ordered without notice to the judgment-debtors and delivery was recorded after it was effected. The E. P. was however dismissed on 7-7-52 on the ground that the sale proclamation for B scheduled property could not be effected due to the respondent not being present to point out the property. The order of dismissal was challenged in A. S. No. 126/52 in the result of which E. P. came back to the Executing Court to be disposed of according to law. Ultimately the B scheduled property was sold on 19-1-53 for Rs. 2010/- and purchased by the respondent.

The appellant in his E. A. 181/53 raised the following objection and pleas :

No notice was given to him of the execution proceedings;

the property being liable under the security bond for Fasli 1356 Kattubadi, it could not be sold for the entire decree amount and even that without effecting fresh attachment;

there was material irregularity in the conduct of sale as there was no proper publication of sale proclamation in the village;

the decree sought to be executed was inexecutable since it amounted to a preliminary decree;

substantial injury has resulted to the appellant inasmuch as property worth Rs. 4000/- had been sold for an inadequate price; and

the amendment of the decree was not binding upon him as it had been procured by fraudulent representation.

The respondent raised the plea of limitation and contended that the charge on B scheduled property was not confined to the extent of Fasli 1356 kattubadi but also covered the mesne profits upto the date of delivery. He denied further that any fraudulent representation was made to the court. Other objections with regard to absence of notice, material irregularity and consequent substantial injury were categorically traversed.

The Executing Court found some of the pleas raised by the appellant untenable but on the question of notice, limitation and substantial injury, found in favour of the appellant and set aside the sale. The learned Subordinate Judge on appeal took a different view on all the points raised by the appellant and held that it may be that the amendment allowed might be wrong but the decree was to be executed as it stood. That the decree was final and executable. On the question of notice as required by O. 21, Rule 22 C. P. C. he held that what was executed was the decree as amended on 8-1-51. As E. P. 340/51 was filed on 15-10-51 i.e., within two years from the date of the amended decree, the appellant was not entitled to make a grievance of the absence of notice. He felt himself fortified in that view by reason of the decision of the Patna High Court reported in Mahesh Singh and Others Vs. Gajadhar Singh and Others, That decision laid down that:

Unlike Art. 182 and unlike CPC of 1882 O. 21 R. 22 does not specifically deal with decrees which have been modified in appeal, and yet it is obvious that in such cases the period of one year will have to be counted from the date of the appellate decree which is the decree to be executed. The decree contemplated in Order 21, Rule 22 must,.......................be the decree to be executed, not only when it is an appellate decree dealt with in Cl. (2) but also when it is a decree which has been reviewed or amended as dealt with in cls. (3) and (4) of Art. 182, Limitation Act.

This is the first point which has been argued before me by the learned advocate for the appellant. He contended that the Patna High Court erred in drawing the analogy of provisions of Art. 182, Limitation Act in construing the expression ''date of decree'' occurring in Order 21, Rule 22 (1) (a). He said that the expression ''''date of decree" also occurs in sub-section (1) (a) of S. 48, C. P. Code but the Full Bench of the Madras High Court has in Paladugu Veera Ramachandra Rao Vs. Paladugu Parasuramayya and Another, refused to interpret that expression as inclusive of "amended decree". What has been decided in the above case is that Art. 182 is expressly limited to applications for execution not provided for by Art. 183 or by S. 48 C. P. Code. Inasmuch as Art. 182 leaves the provisions of Sec. 48 untouched there can be no execution of a decree governed by Sec. 48 when twelve years have passed from the date of the decree, amendment or no amendment. It is true that there is no period of limitation for an amendment of a decree to correct an accidental slip and omission under S. 152 C. P. Code. But because the Code gives the Court power to correct slips or omissions at any time it does not mean that the law of limitation is affected. A correction made in a time-barred decree leaves the decree still time-barred.

But it is to be observed that the learned Judges who decided the case of Mahesh Singh and Others Vs. Gajadhar Singh and Others, were not handicapped by the limitation which induced the Full Bench of the Madras High Court to ignore the provision of Art. 182 as a help in the interpretation of the expression "date of the decree" in Sec. 48. C. P. Code. But I need not express any opinion on this question since it can be decided on another aspect. Even assuming without conceding that the decree contemplated in O. 21, R. 22, C. P. C. includes amended decree, such a decree must be one which must have been amended with the knowledge of and notice to the party to be affected when the amendment sought introduces a radical change in the texture of the decree. If no notice of the proposed amendment is given he cannot be fixed with the knowledge of the date of the decree which would be the original date on which it was actually passed. In the present case it is not controverted that the amendment on 8-1-51 was made behind the back of the appellant, with the preposterous result that the appellant had been saddled with a liability for which he has not contracted. In these circumstances, it would be a travesty of justice to let the sale stand. The learned advocate for the respondent urged that the appellant has put in appearance A. S. 126/52, therefore, he must be deemed to have notice of E. P. 340/51. But notice must be strictly under the provisions of O. 21. R. 22 C. P. Code and not from other source. The thing if it is to be done must be done in strict compliance with the law. Any other method or source would not be a substitute for the one prescribed under the law. I, therefore, hold that absence of notice under O. 21, R. 22 C. P. Code was fatal to the impugned sale.

The next question I desire to consider is whether the amendment itself should be allowed to stand. Both the courts below have held that the remedy for rectifying the amended decree lies elsewhere and not in execution. That proposition cannot be demurred to. But the Constitution of India invests those powers in the High Court under Art. 227. It is to set right such blatant miscarriage of justice that such power is conferred and I propose to exercise it and accordingly order that the amendment of 8-1-51 be expunged and removed from the decree dated 16-8-1948 in O. S. 234 of 1947. In this view, other matters do not fall for determination.

The result is that the appeal succeeds and is hereby allowed and the judgment and order of the Executing Court are restored. The appellant will recover costs throughout from the respondent.