Porinchu and Another vs John

P.K. Balasubramanyan, J.—This revision is by the judgment-debtors. The Respondent decree-holder obtained a decree for money on 28th June 1977. He filed E.P. 381 of 1982 for execution of that decree. The essential prayer in that execution petition was for recovery of the amounts due under the decree by the arrest and detention of the judgment-debtors. On 28th September 1992, twelve years after the decree but even while his execution petition was pending, decree-holder applied by E.A. 996 of 1992 seeking to add an alternate prayer for recovery of the decree amount by sale of certain properties which the decree-holder claimed the judgment-debtors possessed. In a sense, what the decree-holder sought was an amendment of his execution petition by adding a further prayer for recovery of the amounts due under the decree by proceeding against the properties which he claimed, belonged to the judgment-debtors. The judgment-debtors opposed that application. One of the various contentions raised was that on the date E.A. 996 of 1992 was made, for seeking to proceed against the property, the execution of the decree was barred by limitation if that application is treated as a fresh execution petition and that in such a situation the executing court cannot permit the decree-holder to resort to the alternative mode of execution. The executing court allowed the application filed by the decree-holder finding that the prayer for arrest and detention of the judgment-debtors had proved impracticable and therefore the alternate approach made by the decree-holder for realising the fruits of his decree was justified and deserved to be accepted. The judgment-debtors question the order of the executing court.

While admitting this Civil Revision Petition this Court by order dated 30th May 1995 granted an interim stay of further proceedings in execution on condition that the judgment-debtors deposit a sum of Rs. 3,000 in the executing court within one month of that date for payment to the decree-holder. It is submitted by learned Counsel for the judgment-debtors that the sum of Rs. 3,000 was deposited in time.

It is contended on behalf of the judgment-debtors based on the decisions in N.D. Namboodiri v. K. Yohannan 1956 KLT 888, Kochikka v. Kunju Pennu 1963 KLT 357 and Vasudevan Unnithan v. Karthiyayani Amma 1966 KLT 78 that the prayer in E.A. 996 of 1992 for proceeding against the property must be treated as the filing of a fresh execution petition and since on the day E.A. 996 of 1992 was filed, a fresh execution petition would be barred, the decree-holder could not seek to proceed against the properties of the judgment-debtors and was obliged to pursue only his prayer in the original execution petition for recovery of the decree amount by the arrest and detention of the judgment-debtors. I notice that the decisions referred to by counsel for the judgment-debtors were all based on Section 48 of the CPC which was deleted by Section 28 of the Limitation Act of 1963. The original prohibition against passing an order for execution of a decree on a fresh application presented after the expiration of twelve years from the date of the decree has thus been omitted. Instead Article 136 of the Limitation Act, 1963 only prescribes for a period of twelve years from the date when the decree becomes enforceable for execution of any decree other than a decree granting mandatory injunction. In such a situation all that the decree-holder is obliged to do is to file a petition for execution, of the decree within 12 years decree. The fact that he initially chose one of the alternate modes available to him to enforce the decree, would not preclude him from opting for Anr. mode, so long as his execution petition is pending and he has failed to realise the fruits of his decree through the mode he had initially chosen. In my view, the theory that seeking to adopt Anr. mode for realising the fruits of a decree in a pending execution petition would amount to initiating a fresh execution, cannot have any effect in cases governed by Article 136 of the Limitation Act and in the absence of a provision like Section 48 of the Code of Civil Procedure. The wording of Section 48 of the Code clearly indicated that even in a pending execution petition, no fresh application for execution could be presented after the expiration of 12 years from the date of the decree. Section 48 of the Code having been deleted and such a bar having been removed, it cannot be said that an alternative mode of executing the decree cannot be sought for, in a pending execution petition, even after the expiry of 12 years from the decree. All that is now needed, is that an execution petition should have been filed within 12 years of the decree. Here such an execution petition is still pending.

One must also realise that in spite of the lapse of twelve years the decree-holder has not been able to realise the fruits of his decree (here a simple decree for money and that too not for a large sum) by seeking recovery by the arrest and detention of the judgment-debtors. In twelve long years the executing court has failed to bring succour to the beleaguered decree-holder. When finally, probably out of deseparation, the decree-holder seeks the realisation of the fruits of his decree by an alternate mode of recovery permitted by law, is it open to a court to turn him back by saying that on the day he made such a request he could not have filed a fresh execution petition? In the absence of Section 48 of the Code, I think not. Moreover, it is not obligatory that for executing the same decree and realising the fruits of it in different modes, the decree-holder should file separate execution petitions. The substantive petition for execution filed well in time is suspending. Therein, he had originally chosen a mode of recovery. He seeks to add a prayer for recovery of the amount claimed by an alternative mode. According to me, it cannot be postulated that the prayer made by the decree-holder amounts to a fresh petition for execution or the initiation of a fresh proceeding in execution of the decree.

It cannot now be denied that the executing Court has the power to permit a decree-holder to amend his execution petition. Since the execution petition filed in time is still pending, there cannot be any bar to allowing such an amendment. In my view, such a prayer ought to be allowed. For, in spite of the decree having been passed as early as on 28th June 1977 for a comparatively small sum, the decree-holder has not been able to realise the amounts due under the decree because of the recalcitrant attitude adopted by the judgment-debtors. It is the duty of the executing court to adopt all available legal means in such circumstances, to enforce compliance with the decree and to secure to the decree-holder the fruits of his decree. Are we obliged to strive for all time, to justify the lament of the Privy Council that the travails of a litigant in India begins with his obtaining a decree?

In any view, this is also not a case where this Court ought to exercise its jurisdiction u/s 115 of the CPC to interfere with the order of the executing Court. An interference rather than non-interference would result in failure of justice.

I dismiss the Civil Revision Petition.