EDAPALLY VALIA RAJA Vs. CHACKO

JUDGEMENT

(1.) This Second Appeal arises out of proceedings to execute the decree in O.S. No. 352 of 1113 on the file of the Muvattupuzha Munsiffs Court. The decree holder is the appellant before us and his execution application, dated 10th June 1954 has concurrently been dismissed by the two lower courts namely, the Court of the Munsiff at Muvattupuzha and the Court of the Subordinate Judge at Parur. Following the decision of Sankaran, J. (sitting alone) reported in Kuriakko v. Pylee, 1953 KLT 20 , the primary court held the application to be hit by the twelve years rule enacted in S.48, Civil Procedure Code. The learned Munsiff was bound by the authority cited before him and so was the learned Subordinate Judge. Before the court of the latter the decree holder tried to get over the difficulty by contending for the position that the execution application in question was only one to continue an earlier application filed within twelve years from the date of the passing of the decree. That attempt was unsuccessful and before us Mr. P. Govindan Nair, appearing for the decree holder appellant, stated that he was not seeking to sustain the appeal on the ground urged before the learned Subordinate Judge and that his position was that the decision in Kuriakko v. Pylee, 1953 KLT 20, was erroneous and that two recent decisions of this Court had laid down the true rule applicable to a case of this nature. On facts more or less similar to those obtaining here, those cases hold that the 12 years period should be counted not from date of the decree sought to be executed, but from any subsequent date the parties might fix for payment as the result of a post decree agreement and which agreement the execution court accepts. Those cases are K. G. B. Samajam v. Ouseph ( 1957 KLT 422 ) and K.G.S. B. Samajam v. Manikka Pai (1958 K.L T. 1.) M. S. Menon, J. (sitting alone) decided the first named case and Raman Nayar, J. (sitting alone) decided the other. The earlier of these two decisions alone had been passed when this Second Appeal came up for hearing before one of us (Kumara Pillai, J.) on 30th October 1957 and on account of the conflict between that decision and the earlier decision in Kuriakko v. Pylee (1953 KLT) 20, the case was then and there referred to a Division Bench for disposal. The decision of Raman Nayar, J , mentioned above, was rendered on 12th December 1957.

(2.) The decree in the present case was passed on 30th September 1938 and it is common ground that E. P. 204 of 1950 filed on 20th June 1950 was within time. That execution petition was however dismissed on 31st October 1950 and as indicated earlier, the decree holders learned counsel conceded that it was a proper disposal. During the pendency of that application the decree holder and the present respondent, who had got himself impleaded in the execution proceedings as an assignee of the decree schedule properties, had however entered into a compromise arrangement as per C.M. P. No. 10159 dated 15th September 1950 and the court passed an order recorded on it. On the date of the compromise the respondent paid Rs. 30 to the decree holder and it was agreed that in case a further payment of Rs. 130 was made on or before 12th February 1951, the decree will be treated as fully satisfied and that in the event of default the decree holder will be entitled to claim the entire balance due as per the terms of the decree. The subsequent execution petition out of which this Second Appeal arises was filed well within six years of the dates fixed for payment under the compromise arrangement and also within six years of the dismissal of the earlier execution petition. The decree in the case is a registered one and the decree holder has therefore six years time from one or the other of the dates specified in Art.182, Limitation Act, to execute the decree. See Mathevan v. Mathevan Pillai, (1958 K. L.T 441). However the application was filed beyond twelve years from the date of the passing of the decree and the question arising for decision is whether the twelve years period should be calculated from the date of the decree or from the date fixed for payment under the compromise arrangement. If it is the earlier, the application is hit by S.48, Civil Procedure Code and if it is the latter there is no bar under that section

(3.) Our decision in this case must depend upon whether the order the execution court passed on the compromise petition C. M. P. 10159 of 1950 is a subsequent order within the meaning of S.48 (1) (b), Civil Procedure Code. In Kuriakko v. Pylee (1953 KLT 20), Sankaran, J., held that the subsequent order contemplated by S.48 (1) (b) is an order by a court which passed the decree and not an order passed by the court executing the decree. According to the learned Judge an order of the execution court regulating the time and mode of payment of the decree amount, whether it is passed on a compromise entered into between the parties or on the motion of one or the other of them, would not amount to a subsequent order as contemplated by S.48 (1) (b) and such an order cannot serve as the basis for a fresh starting point of limitation. The opposite view that the order of an executing court giving effect to the compromise arrangement between the parties as to the mode and time of payment of the decree debt would constitute a subsequent order within the provision of law referred to has been taken in the two later cases cited above. Among what we might conveniently call the former British Indian High Courts there was a similar conflict of opinion on this question, but that was set at rest by the decision of the Privy Council in O. C. Bank v. Bind Basni Kuer (AIR 1939 P. C. 80). Except the decision in Kuriakko v. Pylee (1953 K.L T. 20) we have not been referred to any instance or have we been able to come across any instance overselves, where after the date of the aforesaid Privy Council decision, of any Indian High Court taking the view that an executing courts order varying the terms of a decree by instalment payments or otherwise will not constitute a subsequent order within the meaning of S.48(l) (b). Unfortunately the Privy Council decision or the later decisions of the various Indian High Courts following that decision do not appear to have been brought to the notice of the learned Judge who decided Kuriakko v. Pylee (1953 KLT 20) The basis of the view taken there is that the function of a court of execution is to execute the decree as it stands and that the terms of a decree if altered by consent of parties cannot be executed but was only capable of being enforced by a fresh original action. That line of reasoning had no doubt found favour with some learned Judges of the Allahabad, Lahore and Patna High Court Sankaran, J. has in his judgment referred to the leading Allahabad decision expounding that view, namely Gobardhan v. Dau Dayal (AIR 1932 All. 273 F.B.). The Bombay and Calcutta High Courts had throughout taken the opposite view. The Allahabad High Court itself has later unequivocally stated that its earlier view stood overruled by the decision in O. C. Bank v. Bind Basni Kuer (AIR 1939 P. C. 80). See Bhiki Mal v. Kundan Lal (A.I. R.1940 All. 107), Mahendra Rao v. Bishambhar Nath (AIR 1940 All. 270 F. B.) and Chhatra Pati v. Hari Ram (A I. R.1940 All. 423). In a decision of the Cochin High Court - Kalikutty v. Krishna Menon (36 Coch.L.R.869) - Krishnaswami Iyengar, C.J., has made a rather detailed survey of the case law bearing on the question, both before and after the Privy Council decision and pointed out that in the later Allahabad cases referred to above that High Court had itself stated that its earlier view expressed in Gobardhan v. Dau Dayal (AIR 1932 All. 273 F. B ) can no longer be regarded as sound law after the decision O.C. Bank v. Bind Basni Kuer ( AIR 1939 PC 80 ).