NARAYANAN DAMODARAN NAMBOODIRI Vs. KURIATHU YOHANNAN

JUDGEMENT

(1.) THE decree-holder in O. S. 70 of 1104, on the file of the Parur District Musiff's Court, had brought this second appeal against the concurrent decisions of the District Munsiff and the Additional District Judge of Parur that his prayer to proclaim and sell certain items of immovable properties belonging to the judgment-debtors, attached by the court pursuant to a supplementary list filed on 20. 11. 1951 (4. 4. 1127), in relation to a pending execution application, was hit by the twelve years' rule enacted by S. 48, Civil procedure Code and therefore inadmissible. THE decree under execution is one passed on 24. 5. 1109. It is a registered decree and it gave two months' time to the judgment-debtors to satisfy the amounts decreed thereunder. After two abortive execution applications made in the case, one on 25. 11. 1115 and the other on 10. 2. 1117, the decree-holder filed a third one on 14. 4. 1121. THE present second appeal has arisen out of proceedings claimed to be pursuant to the said third application. Under it the decree-holder sought execution personally against judgment-debtor No. 2 and such of the movable and immovable properties of judgment-debtors 1 and 2 as are mentioned in the lists to be submitted thereafter. THE application was duly registered and after issuing notices as required by 0. 20. R. 22, Civil Procedure Code, on 23. 6. 1121, the court, among other directions, asked the decree-holder to produce the schedule of properties to be attached. On 10. 7. 1121 the decree-holder filed the schedule seeking to attach Sy. 476/8 alleged to belong to judgment-debtor No. 2 (hereinafter referred to as the judgment-debtor ). On the property being attached, the judgment debtor-raised objections to the execution on the ground that as the schedule was filed more than 12 years after the date fixed in the decree for payment of the debt execution was barred under S. 48, Civil Procedure Code. THE execution court over-ruled the objection and the District Court in A. S. 22 of 1122 and the High Court in S. A. 556 of 1123 upheld the order of the execution court. THE High Court held that although the execution application was not accompanied by a schedule of the property to be attached and notwithstanding that defect, the execution court had admitted and registered the application and later allowed the decree-holder to cure the defect, the contention that the execution was barred by the twelve years' rule was unsustainable. When the records went back to the execution court after the disposal of the second appeal, that court directed the decree-holder to file a fresh execution application (vide order dated 28. 11. 1124 ). It would appear that besides the plea of limitation the judgment-debtor had raised a question regarding the claim for interest made in the execution application and with respect to it the second appeal succeeded. It was with a view to have an application conforming to that decision that the execution court directed the decree-holder to file a new application. On such amended execution application being filed on the date fixed for it, namely, 20. 12. 1124, the earlier one was 'struck off' on the self-same date. THEreafter execution proceeded against the property under attachment and when it came up for sale on 26. 10. 1950 (9. 3. 1126) the judgment-debtor applied for judgment of the sale and paid Rs. 50/- towards the decree debt (vide C. M. P. 1395 and the order thereon ). THE property came up for sale on two further occasions, namely 27. 11. 1950 (12. 4. 1126) and 4. 12. 1950 (19. 4. 1126) and on both those occasions the judgment-debtor applied for adjournment paying as before Rs. 50/- each time (vide C. M. P. Nos. 15778 and 16227 and the orders thereon ). Before the property came up for sale for the fourth time 14. 12. 1950 (29. 4. 1126) the judgment-debtor's wife preferred a claim stating that the property belonged to her and not to her husband. This was on 11. 12. 1950 (26. 4. 1126) and on 27. 12. 1950 (12. 5. 1126) the court passed orders allowing the claim. THE execution application was adjourned for 'further steps' to 9. 11. 1951 (23. 3. 1127) and on that date, on the decree-holder's application it was further adjourned to 20. 11. 1951 (4. 4. 1127 ). On the said date the decree-holder produced a fresh schedule of properties to be attached and proceeded against in execution. THE schedule mentioned three items of properties and those properties were duly attached. THE judgment-debtor again raised objections to the execution on the ground that it was barred by the twelve years' rule. This time he succeeded as the execution court held (order dated 14. 12. 1952 (29. 4. 1128), that though not in form, the application to proceed against new items of properties was a fresh application within the meaning of S. 48, Civil Procedure Code. On appeal by the decree-holder the learned Additional District Judge of Parur upheld that order by its decision in a. S. 91 of 1952, dated 8. 2. 1954. Hence this second appeal.

(2.) WHEN the second appeal came up for hearing before a learned Single Judge, it was brought to his notice that the question of law arising for decision here, whether to permit execution against properties mentioned for the first time in a list filed twelve years after the decree should be treated as a 'fresh application' or only as a continuation or an amendment of a pending execution petition filed within 12 years from the date of decree was the subject of a reference to a Full Bench in A. S. 464 of 1952. This was also therefore referred to a Full Bench for decision. There were then two other references to the Full Bench pending in which the same question arose for determination. These were in A. S. 260 of 1955 and S. A. 806 of 1953. This full Bench heard all the four cases. It was however found that A. S. 464 of 1952 must fail as it was not properly constituted as to parties and that in A. S. 260 of 1955 it was unnecessary to consider the point as there was in that case a'subsequent order' within the meaning of S. 48 (1) (b), Civil Procedure Code. Those appeals were, therefore, disposed of accordingly. We have chosen to dispose of this and the other remaining case, namely, S. A. 806 of 1953 by separate judgments.

(3.) EXCEPT for one decision in Cochin, the Cochin case-law also did not permit amendments of the kind now asked for. The decision in sekhara Mannadiyar v. Subramania Muthaliar (1941) XXXII Cochin L. R. 536 and the earlier decision which it followed, namely Tachudaya Kaimal v. Seethakutty Amma (1938) XXVIII Cochin L. R. 791 were cases where amendments were allowed even beyond 12 years of the passing of the decree for the reason mentioned in 1950 tclr 276, referred to above. The Cochin case which went beyond the rule enunciated in the earlier cases is reported in Iravi Damodaran Nambooripad v. Narayanan Nambooripad (1943) XXXIII Cochin L. R. 84. There a decree was not satisfied by sale of certain properties. A fresh schedule of properties to be put up for sale was filed after 12 years from the date of the decree. The contention that further proceedings in execution was barred under S. 42, Civil Procedure Code of cochin (Now S. 48) was repelled by stating that the filing of a fresh schedule did not amount to a fresh application for execution and since the original execution petition was kept pending, there was no bar of limitation. The decision purports to follow XXXII Cochin L. R. 536 but as stated just now that case lent no support to the view taken there. Indeed there was there an unwarranted extension of the rule of the earlier cases and the Cochin High court had itself occasion to point this out in the decisions reported in kuriakutty v. Aypu Asan (1949) XL Cochin LIZ 462 and Govindan Nayar v. Lekshmi amma (1949) XL Cochin Law Reports 546. If the decision in XXXIII Cochin L. R. 84 represents good law the appeal must certainly succeed. We do not however consider that decision as laying down correct law. Apart from what we have already said the sequel will show that amendments of the kind asked for in this case cannot be permitted.