Pylee Kuriakko vs Kurian Pylee

Sankaran, J.—The main question raised in this second appeal is one of limitation. The question arises in execution. The facts relevant for the purpose of this appeal are the following. The decree in this case was passed on 16-12-1102. After declaring the Plaintiff''s title to the suit property. the decree directed him to pay a sum of Rs. 448 chs. 4 cash 6 to the Defendants towards the value of the buildings and other items of improvements existing on the property and to recover possession of the property from them with future mesne profits at the rate of 30 fanams per year. While this decree was being executed, the parties entered into a compromise the terms of which were incorporated in the petition filed by them in Court (C.M.P. No. 14901) on 30-11-1115. That petition was signed by the Plaintiff-decree-holder and his Vakil and also by the additional 8th Defendant on her behalf as also on behalf of her minor children who were additional Defendants 4 to 7. The Vakil for these Defendants also signed the compromise petition.

As per the said compromise the balance amount payable by the decree-holder to the Defendants after setting off the mesne profits and costs due to them, against the amount directed to be paid as value of improvements to them, was fixed at Rs. 182/-. The parties had also agreed that out of this amount a sum of Rs. 107/- is to be treated as value of the building and that Defendants 4 to 8 would remove the building at their own cost within a period of one year from the date of the compromise. Another term in the compromise was that the decree-holder was to pay the balance of Rs. 75/- to Defendants 4 to 8 on or before 30-12-1116 and that on payment of such amount, the Defendants ware to remove the building from the property. It was also stipulated that in case the decree-holder were to sustain any loss or damages on account of the 2nd Defendant, who did not join the compromise and whose whereabouts were unknown, Defendants 4 to 8 and their assets inclusive of the building in the plaint property were answerable for such damages. It was also mutually agreed by the parties that Defendants 4 to 8 will not cut and remove any trees from the property and that they will also be not liable for any mesne profits subsequent to the date of the compromise. After setting out these terms in the com- promise petition, the prayer made therein was the petition may be recorded. Accordingly the executing Court on the very same day recorded the compromise petition. It was clear from the compromise petition that the decree-holder did not want to proceed with the execution of the decree on the basis of the execution petition that was pending at that time and hence that petition was also dismissed on 30-11-1115 itself. However the parties failed to comply with the terms embodied in the compromise petition dated 30-11-1115.

On 9-5-1121 the decree-holder filed the present execution petition as a fresh and substantive petition for recovery of possession of the property from the Defendants with arrears of mesne profits from the year 1116 onwards. The amount of such mesne profits was sought to be set off out of Rs. 50/- which was mentioned as the amount due to Defendants 4 to 8 under the compromise dated 30-11-1115. To support this prayer, the decree-holder is seen to have incorrectly stated in his execution petition the terms of the compromise. He has stated that the amount agreed to be paid to Defendants 4 to 8 after a mutual set off of the amounts provided for in the decree was Rs. 50/-, that these Defendants had agreed to remove the building from the property on or before 30-12-1116 and then to receive the sum of Rs. 50/- from the decree-holder and that they will be entitled to recover Rs. 25/- after a period of 7 years in case nothing is heard about the 2nd Defendant j during that period. The compromise petition does not lend support to this statement in the execution petition. On getting notice of this petition the 4th Defendant entered appearance and resisted execution, contending that the petition was barred u/s 48, CPC and that the compromise entered into between the decree-holder and the 5th Defendant is vitiated by fraud and collusion and that it is not binding on him. The executing Court repelled the plea of limitation raised by the 4th Defendant but upheld his contentions that the compromise relied on by the decree-holder is not binding on the 4th Defendant. The execution petition was held to be unsustainable and it was therefore dismissed. On appeal by the decree-holder, the lower appellate Court decided both the points against the 4th Defendant and in favour of the decree-holder. The 4th Defendant has therefore preferred this second appeal.

As already stated, the present execution petition dated 9-5-1121 is a fresh and substantive petition. There is no prayer in the petition that it may be treated as a continuation of any prior pending execution petition. No such claim could also be urged in view of the fact that there is no other execution petition pending disposal. When the compromise petition was filed jointly by the decree-holder and Defendants 4 to 8 on 30-11-1115 the execution petition that was then pending was dismissed. The order dismissing that petition was a final order judicially disposing of that petition and hence it cannot be said that the said petition could be revived or continued. Since the decree in the case was passed on 16-12-1102, the present execution petition dated 9-5-1121 is obviously beyond 12 years from the date of the decree and as such it is prima facie barred u/s 48, CPC But it is contended on behalf of the decree-holder that the compromise petition filed before the executing Court on 30-11-1115 and recorded by that Court on the same day had the effect of modifying the decree in the case and to substitute a new decree in its place and that therefore the 12 years'' period contemplated by Section 48, Code of Civil Procedure, has to be computed from 30-11-1115 as per Clause (1)(b) of that section. In support of this position reliance is placed on the ruling of the erstwhile Travancore High Court in - ''Kesava Pillai v. Krishnan'' 1949 Trav. L.R. 185 (A) where it was laid down as follows:

A subsequent order contemplated by Section 41(1)(b), CPC includes orders passed by the execution Court recognising compromises between the decree-holder and the judgment-debtor touching payment of money due under the decree whether it is in alteration of the existing decree or a substitution of a new decree, and a compromise filed and accepted by the Court is sufficient to give a fresh starting point of limitation u/s 41.

It appears to me that this dictum has been too broadly stated. So far as this Court is concerned the ruling in - ''1949 Trav. L.R. 185 (A)'', has not the force of a binding precedent. Further it is seen that the question is one on which the other High Courts in India have taken divergent views. Such being the case, I propose to examine the question on its own merits.

Clause (15) of Section 48, CPC (corresponding to Clause (1) of Section 41, Travancore Code of Civil Procedure) is as follows:

(1) Where an application to execute a decree not being a decree granting an injunction has been made, no order for the execution of the same decree shall be made upon any fresh application presented after the expiration of 12 years from-

(a) the date of the decree sought to be executed, or

(b) 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, the date of the default in making the payment or delivery in respect of which the applicant seeks to execute the decree.

Except in eases which may come under Clause (1)(b), the 12 years period prescribed by the rule is to be calculated from the date of the decree. Clause (b) applied to cases where a future date is fixed either by the decree or by any subsequent order for the discharge of the obligation created under the decree. When a future date is thus fixed and the judgment-debtor commits default in the due discharge of his obligation, the 12 year period has to be calculated from the date of such default. The decree in the present case did not fix any future date for its enforcement. It has therefore to he considered whether the recording of the compromise petition filed by the parties on 30-11-1115 would amount to a "subsequent order" as contemplated by Clause (1)(b) of Section 48, Code of Civil Procedure.

In certain cases the expression "subsequent order" as used in Clause (1)(b) of Section 48, CPC has been very liberally construed so as to include even orders passed by the Court executing the decree. In - D.S. Apte Vs. Tirmal Hanmant Savnur, it was held that the expression "any subsequent order" must not be limited to an order passed by the Court which passed the decree, but must be construed to mean any order made by a competent Court and that an order made by the Court executing a decree allowing time to the judgment-debtor to pay up the decree amount in instalments will be a "subsequent order" as contemplated by Clause (1)(b) of Section 48. The same view was taken by the Calcutta High Court in - Hridoymohan Sanyal Vs. Khagendra Nath Sanyal and Others, and in - Kartic Chandra Mukherjee Vs. Bata Krishna Roy and Others, . In the latter case it was even held that a compromise entered into by the parties and accepted by the Court could be treated as a new decree substituted in place of the original decree and that time for execution will run only from the date of such a substituted decree. These decisions have been followed in - '' 1949 Trav. L.R 185 (A)''. All these decisions appear to have proceeded on the assumption that it is competent for the execution Court to accept a compromise entered into by the parties and to pass orders varying or modifying the decree which it is called upon to execute, and even to substitute a new decree in place of the original decree. With great respect to the learned Judges who have taken part in those decisions, it has to be pointed out that such an assumption is unsupportable on principle. In - D.S. Apte Vs. Tirmal Hanmant Savnur, the expression "any subsequent order" used in Section 48(1)(b) was construed to mean any order passed by a competent Court and having the effect as indicated in the clause itself. But can it be said that the execution Court is a competent Court in the sense that it is competent to pass an order varying or modifying the terms of the decree? I think the answer should be ''no''.

The judgment in a case when once it has become final cannot be altered or added to except as provided for by Section 152, Code of Civil Procedure, or on review. It is so stated in Order 20, Rule 3. Rule 6 of the same Order insists that the decree shall be drawn up strictly in accordance with the decisions as embodied in the judgment. The Court which is empowered to make any alteration or addition to the decree as a result of a review or as provided by Section 152, is the Court which passed the decree, and not the Court executing it. The function of the executing Court is merely to execute the decree as it stands. That Court''s jurisdiction is limited to that extent and it cannot assume for itself larger powers. Any agreement entered into by the decree-holder and the judgment-debtor cannot also have the effect of enlarging the jurisdiction of the execution Court. The executing Court is no doubt competent to accept and to give effect to all lawful agreements entered into between the parties to the decree in so far as such agreements relate to the execution, discharge or satisfaction of the decree .as it stands. But where an agreement entered into by them embodies terms having the effect of modifying the terms of the decree and of substituting a new decree in place of the original decree, the executing Court can only record the agreement, but cannot proceed further to enforce it as if a new or substituted decree has come into existence. Such an agreement may be binding on the parties as a valid contract entered into by them. All the same the enforcement of such a contract could only be by a separate suit for the obvious reason that the enforcement of that contract will not be the execution of the decree that is already before the execution Court. The provision for recording the compromise entered into between the parties and for passing a decree on the basis of that compromise is contained in Rule 3 of Order 23. This rule makes it obligatory on the part of the Court trying a suit to record a lawful compromise entered into by the parties and to pass a decree on the basis of it. But no such duty is imposed by the CPC on the execution Court. On the other hand, it is expressly provided in Order 23, Rule 4 that the provisions of Order 23 shall not apply to any proceedings in execution of a decree or order.

One argument advanced in support of the view that the execution Court is competent to modify the decree that is before it and to substitute a new decree in its place, is that such a power is conferred on the Court by Order 20, Rule 11, sub-rule (2). Here again the assumption made that the provisions contained in Order 20, Rule 11 are meant to regulate the powers of the executing Court, is unwarranted and incorrect. The several rules embodied in Order 20 relate to the passing of judgments and decrees by the trial Court. Sub-rule (1) of Rule 11 lays down that the Court passing a decree for money may for sufficient reason direct that the payment of the amount decreed may be made in specified instalments. Sub-rule (2) of the same rule has made a special provision enabling the judgment-debtor to invoke the jurisdiction of the Court to add a supplementary provision for instalment payments in a money decree which does not contain such a provision. Sub-rule (2) runs as follows:

After the passing of any such decree ''the Court may'', on the application of the judgment-debtor and with the consent of the decree-holder, order that payment of the amount decreed shall be postponed or shall be made by instalments on such terms as to the payment of interest the attachment of the property of the judgment- debtor, or the taking of security from him, or otherwise, as it thinks fit.

When the judgment-debtor makes an application under this sub-rule praying for a direction and if such a request is assented to by the decree-holder, the Court may grant the request by passing an order to that effect subject to any terms provided in the sub-rule. The Court which is to pass such an order is indicated in the opening portion of the sub-rule. In sub-rule (1) it is provided as follows:

Where and in so far as a decree is for the payment of money, ''the'' Court may for any sufficient reason at the time of passing the decree order that payment of the amount decreed shall be postponed or shall be made by instalments with or without interest, notwithstanding anything contained in the contract under which the money is payable.

In Sub-rule (2) also the reference is to ''the'' Court thereby indicating that the order contemplated is also to be passed by the Court which passed the f decree. An application under this sub-rule has to be filed within a period of six months from the date of the decree as originally passed. Such a period is prescribed by Article 175, Limitation Act. This clearly indicates that the Legislature was not for indefinitely postponing the starting point of limitation for the execution of such a decree. Considered in the light of all these facts, it is clear that the order contemplated by Sub-rule (2) of Rule 11 of Order 20, is an order to be passed by the Court which passed the decree and not by the Court executing that decree. Such an order will be a typical order coming u/s 48(1)(b), Code of Civil Procedure.

It is not necessary for the purpose of this case to examine the question as to what are the other provisions enabling the Court which passed the decree to pass subsequent orders as contemplated by Section 48(1)(b). All the same the nature and scope of the subsequent order as indicated in Sub-clause (b) are by themselves suggestive of the idea that the order is one which could be passed only by the Court which passed the decree, and not by any other Court executing that decree. The expression "any subsequent order'''' as used in Clause (b) was considered by the Judicial Committee of the Privy Council in - AIR 1933 52 (Privy Council) and there it was ruled as follows:

Their Lordships are of opinion that on the true construction of the section the subsequent order must be an order in the suit in which the decree is made ....

An order made in the course of the proceeding in execution of the decree in the case cannot be said to be an order in the suit. The scope of Section 48(1)(b) was also considered by a Full Bench of the Allahabad High Court in Gobardhan Das Vs. Dau Dayal . There it was ruled as follows:

An executing Court as such has no power to make an order which would operate as a ''subsequent order'' within the meaning of Section 48(1)(b), CPC directing payment of the decretal amount on a certain date or certain dates. The ''subsequent-order'' must be an order made by the Court which passed the decree and not in order made in the course of execution.

In that Case Sulaiman J. observed as follows:

The function of an execution Court is to execute the decree as it finds it and not to substitute a new decree therefor, even though the substitution may be with the consent of the parties. Such an agreement may be a binding contract between the parties enforceable by a separate suit, but it cannot take the place of the original decree and become itself capable of execution.

In - ''Bishwanath Prasad v. Lachhmi Narain'' AIR 1935 Pat 380 (G) the Patna High Court has also taken the view that the subsequent order contemplated by Section 48(1)(b) is an order passed by the Court which passed the decree and not an order passed by the Court executing the decree. The same view found favour with the Lahore High Court also in - ''Zaheer-ud-Din v. Mt. Amtur Rasheed'' AIR 1944 Lah. 106 (H). Thus the weight of judicial precedents also appears to be decidedly in favour of the view that an order passed by an execution Court regulating the time and mode of payment of the decree amount, no matter whether the order is passed on a compromise entered into between the parties or on the motion of either of the parties, would not amount to a subsequent order as contemplated by Section 48(1)(b), Code of Civil Procedure. I would respectfully follow the decisions quoted above which are in support of this view and would respectfully dissent from the contrary view taken in the other cases quoted at the earlier portion of this judgment. Consistent with this view it has to be held that the order passed in this case by the execution Court on 30-11-1115 recording the compromise, is not a ''subsequent order'' coming u/s 48(1)(b), CPC so as to serve as a basis for a fresh starting point of limitation for execution of the decree in this case.

There is yet Anr. reason for holding that the compromise petition filed on 30-11-1115 cannot save the decree from the bar of limitation u/s 48, CPC The filing or the recording of such a compromise petition cannot by itself attract Clause (1)(b) of that section. In order that this clause may be attracted the essential condition to be satisfied is that there must have been a subsequent order passed by the Court competent to do so. Obviously the order must be an order as defined in Clause (14) of Section 2, Code of Civil Procedure, which is as follows:

''order'' means the formal expression of any decision of a Civil Court, which is not a decree.

This means that there must be decision by the Court followed by a formal expression of the same. So far as Section 48(1)(b) is concerned, it is expressly made clear by Clause (b) itself that the order must be one which directs any payment of money or the delivery of any property; to be made at a certain date or at recurring intervals. The mere recording of a compromise does not satisfy any of these conditions. In fact it is no order at all. It is also clear from the petition filed by the parties on 30-11-1115 that they did not want the Court to pass any formal order in the legal sense of the term. Even though the terms of the compromise as embodied in that petition were such as to modify the decree to a considerable extent, the only prayer in the petition was that the petition may be recorded. This was done and the matter stopped there. Thus it cannot be said that there was any order imposing on either party any fresh obligation capable of enforcement, by that Court. In this view of the matter also the decree-holder is not entitled to claim the benefit of Section 48(1)(b), CPC The execution petition filed by him on 9-5-1121 is hit by Clause (a) of that section. Since it is a fresh and substantive execution petition filed more than 12 years after the date of the decree, it is clearly barred by limitation.

Since the Appellant succeeds on the plea of limitation set up by him, it is not necessary to consider the other objection raised by him that the compromise entered into on his behalf also by the 8th Defendant is not binding on him.

In the result this appeal is allowed with costs and in reversal of the lower Court''s order, the execution petition filed by the decree-holder on 9-5-1121 is dismissed as being out of time.