KARANAKKODAN GOWDA SWARASWATHA BRAHMAN SAMAJAM Vs. MANIKKA PAI

JUDGEMENT

(1.) This second appeal arises out of proceedings in execution of the decree in O. S. 22 of 1115 on the file of the Munsiffs Court, Trichur.

(2.) The decree in question, a decree for money against two defendants, was passed on 11-4-1115 (27 -11-1939). In E. P. 1148 of 1950, the decree holder applied for execution. Thereupon the two defendants filed M.P. 875 of 1951 praying that they may be allowed to pay the decree amount in instalment of Rs. 5 each per month. On the decree holder agreeing to this, the executing court made the following order: As agreed to by the decree holder, both the judgment - debtors are allowed to pay each at the rate of Rs. 5 per mensem from 2-7-1951 and in default in a lump. This was on 2-6-1951, and on the same day E. P. 1148 of 1950 was dismissed and thereafter the two defendants paid five instalments each until 2-11-1951. Then they defaulted, and on 28-5-1954 the decree holder came forward with his present execution petition E. P. 422 of 1954 (within three years of the dismissal of E. P. 1148 of 1950 and of the instalment order in M. P. 875 of 1951 but more than 12 years after the passing of the decree) for execution by the arrest of the defendants and by attachment and sale of their properties. Notice under O.21 R.22 C. P. C. was issued and the case posted to 6-7-1954. On that day the defendants did not appear. Execution was ordered and the case posted to 12-7-1954 for further steps On that day notice under O.21 R.37 C. P. C. was issued and the case posted to 16-8-1954. On 16-8-1954 also the defendants did not choose to appear, and execution by arrest and detention was ordered and the case posted to 28-9 -1954. On 28-9-1954 the 1st defendant was brought under arrest whereupon he filed M. P. 2107 of 1954 praying to be allowed to pay the decree amount in monthly instalments of Rs. 5. He also made a payment of Rs. 25 on that day and was released on his own bond to appear on 3-12-1954. He did not appear on that day, and consequently M. P. 2107 of 1954 was dismissed and a warrant issued for his arrest. Then he came forward with a petition, C. M. P. 106 of 1955, raising the objection that execution was barred under S.48 of the Civil Procedure Code & praying for the dismissal of E.P. 422 of 1954. This petition was allowed by the executing court on 5-4-1955, and E. P. 422 of 1954 was accordingly dismissed as against both the defendants. The decree holder appealed, and his appeal having been dismissed by the District Court he has come up here on second appeal.

(3.) I should have thought that execution having been ordered (not once but twice) after due notice to the defendants, and after giving them an opportunity of being heard, (it was never disputed that the notices were duly served upon them) they are precluded from raising a plea in bar of execution, like the present plea of limitation, at a subsequent stage of the same proceedings. That apart I think that the view taken by the courts below, based on the decision in Pylee Kuriakko v. Kurian Pylee, 1953 KLT 20 , that the order of the executing court dated 2-6-1951 permitting the defendants to pay the decree in monthly instalment is not a subsequent order within the meaning of S.48(1)(b) of the Civil Procedure Code, is erroneous. If, as laid down by the Privy Council in O. C. Bank v. Bind Basni Kuer, AIR 1939 PC 80 , a subsequent agreement of the present nature, namely, an agreement to pay the decree, amount in instalments, is a matter to be dealt with under S.47 C. P. C. and not by way of separate suit, and if such a bargain has its effect upon the parties rights under the decree and is therefore something which the executing court has jurisdiction to enforce, it must necessarily follow that the order of the executing court enforcing such a bargain is a subsequent order within the meaning of S.48(1)(b) of the Civil Procedure Code. Or else we are driven to the absurdity that, while an application for execution in respect of an instalment falling due after the twelve year period will be dismissed as premature if made before the expiry of that period, it will be dismissed as barred under S.48 of the Civil Procedure Code, if made after. D.S. Apte v. Trimal Harmant AIR 1925 Bom. 503, Hridoymohan v. Khagendra Nath, AIR 1929 Cal. 687 , Kartic Chandra Mukherjee v. Bata Krishna Roy and others, AIR 1938 Cal. 25 , Mahandra Rao v. Bishambhar Nath, AIR 1940 All. 270 (F. B.), Kalikuttty v. Krishna Menon, 36 Cochin L.R. 865, Jatindra Nath v. Heramba Chandra, AIR 1945 Cal. 154 , Laxmi Lal v. Chkarlal, AIR 1955 Rajasthan 33, and K G B. Samajam v. Ouseph, 1957 KLT 422 are some of the derisions cited at the bar in support of this view that I am taking. The leading case to the contrary is the Full Bench decision in Gobardhan Das v. Dau Dayal ILR 54 All. 573; and subsequent decisions taking the same view like Zaheer-Ud-Din v. Mt. Amtur Rasheed, AIR 1944 Lahore 106 and Pylee Kuriakko v. Kurian Pylee, 1953 KLT 20, have either followed this decision or relied upon certain observations of the Privy Council in Kirtyanand v. Prithi Chand, AIR 1933 PC 52 . But, as has been explained by Krishnaswami Iyengar, C. J. in Kalikutty v. Krishna Menon, 36 Cochin LR 865, the decision in Kirtyanand v. Prithi Chand, AIR 1933 PC 52, is authority only for the proposition that the subsequent order cannot be one passed in a different suit and is not authority for the view that it cannot be one passed in execution proceedings in the same suit. And in the Full Bench case reported in AIR 1940 Allahabad, it was held that the view taken by the Full Bench of the same Court in Gobardhan Das v. Dau Dayal, ILR 54 All. 573 must be regarded as overruled by the Privy Council decision in O. C. Bank v. Bind Basni Kuer, AIR 1939 PC 80.