V. D. JOSEPH Vs. RASHTRA DEEPIKA LTD

JUDGEMENT

(1.) JUDGMENT debtor in E. P. 68 of 1992 in O. S.201 of 1979 on the file of the Sub Court, Ottapalam is the revision petitioner. In a suit for recovery of money the decree holder filed the aforesaid E. P. for arrest and detention of the judgment debtor. Warrant was ordered, but he could not be arrested, Thereafter the decree holder filed E A. 507 of 1993 for adding a prayer in the E. P. for proceeding against the property scheduled therein for realising the debt by sale of the said properly, The judgment debtor objected to the said E. A. contending that the same cannot be allowed as the amendment is sought beyond 12 years of the decree. Lower court over ruled the objection and allowed the application. Judgment debtor challenges the said order in this revision.

(2.) THE only question that arises for consideration is whether the amendment can be allowed in view of the fact that the same was presented beyond 12 years of the decree. The decree is dated 11-4-1980, E. A. 507 of 1993 for amendment of the execution petition by incorporating a prayer for sale of the property scheduled therein was filed only on 28-7-1993, beyond 12 years of the decree. As per Art.136 of the Limitation Act the period of limitation for execution is 12 years, and the said period will start to run when 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 of at recurring periods, when default in making the payment or delivery respect of which execution is sought, takes place. The contention of the revision petitioner is, since the amendment sought does not fall under g O.21 R.17 CPC and the said amendment seeks to incorporate totally new prayer to proceed against the property for realisation of the decree debt, the same should be treated as a fresh E P. and if go, since the same is filed only 12 years after the decree, the said E. A. is barred by limitation.

(3.) LEARNED counsel for the revision petitioner relied on the decision in Narayanan Damodaran Namboodiri v. Kuriathu Yohannan (AIR 1957 TC 109) in support of his contention that the execution application since was beyond 12 years of the decree is barred by limitation. In that decision it was held that an application for amendment of the execution application beyond 2 years from the date of decree giving a fresh list of properties to be proceeded against has to be treated lis fresh execution application end hence is barred under S.48 of the unamended CPC. The principles laid down in relation to S.48 CPC. is applicable generally to Art.136 of the Limitation Act. Under the repealed Act the limitation for execution of decree was three years under Art.182 of that Act. S.48 of the CPC, stipulated, an application to execute a decree not being a decree granting an injunction, no fresh application can be presented after the expiration of 12 years from the date of decree or subsequent order directing payment of money or delivery of say property to be made at certain date or as recurring periods. Though S.48 of the CPC, is repealed corresponding provision is contained in Art.136 of the present Limitation Act. The principles, therefore, laid down under S.48 of the CPC. is applicable in interpreting Art.136 of the new Limitation Act. In Narayanan Damodaran Namboodiri's case (AIR 1957 TC 109) the court observed that where an E. P. for execution is barred by limitation on the date when, the amendment is sought, the decree holder should not be allowed to over come the same in the guise of amendment to the pending execution application. The decision in Sultan Hasan v. Nanki Bibi (AIR 1928 Calcutta 241) also lays down the same principle. In the decision in Dinaeswar v. Deoniti (AIR 1959 Patna 199) it is held that when the amendment sought is not one falling under O.21 R.17 CPC the application has to be treated as a fresh application. To the same effect is the decision in Haridas Ghosh v. Jogendra Nath (AIR 1964 Patna 480). Now, on the basis of these decisions, it was contended that in the circumstance, the application for amendment should be treated as a fresh E. P. and since the same is filed beyond 12 years of the decree is barred by limitation.