VURAKARNAM LAKSHMI NARASIMHAM Vs. GOLANKI VENKAYYA

JUDGEMENT

(1.) There are two connected cases before me, a civil revn petn & a civil miscellaneous second appeal with a memo of objections in the latter. They arise out of E. P. No. 62 of 1944 in O. S. No. 28 of 1934 on the file of the Dist Munsif of Eluru. The E. P. was held to be out of time by the learned Dist Munsif, but has been held on appeal to be in time . No question arises in regard to that on the facts & the dates which are not in controversy between the parties, & I need only say that I uphold the view of the lower appellate Ct. in this respect.

(2.) Having held the E. P. in time the lower appellate Ct said in regard to a certain attachment before judgment in the case that although the decree-holder did not make a prayer for a sale in pursuance of that attachment in-his original petn, the learned Dist Munsif should allow him to amend the petn by praying for it. The decree was passed on 19-9-1934. The attachment before judgment referred to above had already been effected on 24-1-1934. The E. P. with which we are concerned was filed on 17-2-1944 & has been held to be in time on account of certain proceedings in insolvency which eventually resulted in an annulment of the adjudication of the debtor & of certain proceedings for amendment of the decree by way of a scaling down of the debt, which had all intervened between the date of the decree & the date of the E. P. The question of limitation decided by the lower appellate Ct in favour of the decree-holder is, as I have already said, no longer a matter for consideration here. The propriety & legality of the direction of the learned Dist J. in appeal-to the learned" Dist Munsif to allow the decree-holder an amendment of his execution petn. by the insertion of a prayer for a sale in pursuance of the attachment is the only matter which has been the subject of a fairly long & able argument of both sides in this case before me & which calls for determination by me.

(3.) It is contended for the judgment-debtors that there was no execution petn filed in this case within three years of the decree & that consequently the attachment before judgment lapsed & could not be availed of by the decree- holder, though the execution petn itself filed by him in 1944 might be regarded as in time. Mr. Bapiraju says that this is the true legal position emerging from the decision of a F. B. of this Ct reported in 'Rowther v. Arunachalam', ILR 1945 Mad 80 : (AIR (31) 1944 Mad 561 FB). if so, the learned Dist J. had no jurisdiction,--and that is the next contention--to direct the learned Dist Munsif to allow an amendment of the execution petn in the manner mentioned above. Learned counsel says that a prayer for execution by way of fresh attachment ought to have been made in the E. P. & that an amendment of the E. P. in the manner directed by the learned Dist J. more than 12 years after the passing of the decree would be illegal. He relies in support of his contention upon a ruling reported in 'Veeran Kutty v. Veethil Appu', 1911-1 MWN 181: (9 IC 760). There is execution of a decree for money the decree-holder applied to proclaim & sell certain properties without having attached them. The Dist Munsif dismissed the appln while the Sub-Judge on appeal allowed the petnr to amend the petn by inserting a prayer for attachment also. When the Subordinate Judge's order was passed, the decree had become barred by limitation. It was held by the learned Judges (Abdur Rahim & Ayling, JJ), relying upon the well-known principle of procedure laid down by Lord Esher M. R. in Weldon v. Neal', (1887) 19 QBD 394 viz., that as a general rule amendments ought not to be allowed when they would prejudice the rights of the other parties as existing at the date of such amendment--that the Subordinate Judge had acted wrongly in ordering the amendment in question.