Vasamma and Others vs S.K. Jayadeviah

This Second Appeal has been referred to a Division Bench by Venkataramiah, J.

Briefly stated, the facts leading to the appeal are these:

Appellants are the decree-holders. They obtained a decree in O.S. No. 44 of 1957 on the file of the Court of the Munsiff, Davangere. It was on 2-11-1957. The decree was transferred to the Court of the Munsiff, Tumkur for execution. On 17-8-1962 parties having entered into an agreement regarding the .execution of the decree, reported the matter to the Court and the Court passed the following order:

Judgment-debtor says that he withdraws his objections. It is reported that the parties have come to an agreement that judgment-debtor should pay at the rate of Rs. 65 per quarter. Failure to pay any two instalments making the entire amount then due payable at once and that the 1st instalment to be paid by 22-11-1962. I order payment by the judgment-debtor according to the above terms.

Sd/- C.S.N. Munsiff.

Nothing appears to have been paid pursuant to the said order, by the judgment-debtor. The decree-holders, therefore, filed an execution petition on 19-12-1969. In execution petition No. 747 of 1969, the judgment-debtor raised an objection that the application for execution was barred by time since it was filed beyond the period of 12 years from the date of the decree. The decree-holders contended that the limitation should be computed not from the date of the decree but from the date of the subsequent order, that is, from 17-8-1962. The executing Court overruled the contention of the judgment-debtor and held that the application for execution was in time. On appeal, the order of the executing Court was reversed by the Civil Judge, Tumkur. Hence this Execution Second Appeal.

To appreciate the contention, it is necessary to set out Article 136 of the Limitation Act, 1963. Article 136 provides:

Description of application- For the execution of any decree (other than a decree granting a mandatory injunction) or order of any Civil Court.

Period of Limitation.- Twelve years.

Time from which period begins to run-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.

Under the order dated 17-8-1962 the judgment-debtor was required to pay the first instalment by 22-11-1962. He having not paid the same, the default in making the payment occurred on that day. Under Article 136, the starting point of limitation for computing the period of twelve years'' limitation is from the date of the default in making the payment where the decree or any subsequent order directs any payment of money. In the instant case the subsequent order was the order dated 17-8-1962. There cannot be any dispute on this question because the Court recorded the agreement in regard to the payment of the decretal amount and the Court has got power to make such order regarding the payment of the decretal amount under Sub-rule (2) of Rule 11 of Order 20 CPC This is clear from the decision of the Supreme Court in Moti Lal Banker Vs. Mahraj Kumar Mahmood Hasan Khan, Bachawat, J. speaking for the Court observed at page 1089 thus:

Order 20, Rule 3 should be read with Order 20, Rule 11 which shows that after passing of the decree the Court may order that payment of the amount decreed shall be postponed or shall be made by instalments on such terms as to payment of interest as it thinks fit. The two provisions read together show that a direction for postponement of payment of the decretal amount upon the term that the judgment-debtor should pay a reasonable of interest is not an alteration of or addition to the decree.

In view of the clear statement of the law it may be held that the Execution Petition filed on 19-12-1969 was in time and the view taken by the lower appellate Court was clearly erroneous.

In the result, we allow this appeal, reverse the decision of lower appellate Court and restore that of the executing Court. The Appellants are entitled to their costs in this Court and the Courts below.