GNANAMBAL Vs. PERUMAL PILLAI

JUDGEMENT

(1.) THERE is no merit in this revision petition. The first respondent filed the suit O.S.No.87 of 1968 on the file of Sub Court, Cuddalore, and obtained a decree on 6.8.1969 against the petitioner and the second respondent. That was challenged in Appeal and it was confirmed on 16.11.1970 by the dismissal of the appeal. THEREafter, the petitioner filed a suit O.S.No.194 of 1972 for setting aside the decree and for restraining the decree-holder from executing the decree. Injunction was granted during the pendency of the suit stopping execution. Ultimately, the suit was dismissed. An appeal was filed against it in A.S.No.34 of 1975 which was dismissed on 30.8.1978. The matter was brought to this Court in S.A.No.531 of 1979 which was dismissed on 30.10.1983. Thus, the decree holder was not in a position to execute the decree from 6.8.1969 to 30.10.1985.

(2.) APART from that, the petitioner claimed benefits of the Debt Relief Acts 4 of 1938, 10 of 1975 and 15 of 1976. She got also an order of stay of execution proceedings from 19.11.1974 onwards. The moratorium was in force for 4 years and 9 days. If that period is added to the period of 12 years normally allowed for execution the last date for filing the execution petition was 16.11.1986.

(3.) EVEN otherwise, an execution petition can certainly be amended even if the relief sought is barred by limitation. A Full Bench of the Andhra Pradesh High Court in D.Seshaiah v. Veerabhadrayya D.Seshaiah v. Veerabhadrayya D.Seshaiah v. Veerabhadrayya A.I.R. 1972 A.P. 134 held that petitions for amendment of execution proceedings are on par with petitions for amendment of pleadings in a suit. Learned Judges have taken the view that the court has a discretion to grant an amendment even if by granting such amendment the right of the respondent which had accrued to him by virtue of the law of limitation will be effected. The relevant discussion is found in the following passage: ?The principles on which the power to amend should be exercised by now are fairly well settled. The principles underlyingO.VI, Rule 17, C.P.C are substantially the same as underlying Sec.153, C.P.C. The width and the amplitude of this power is well illustrated in L.J.Leach and Company Ltd. v. Jardine Skinner and Company, P.M.Patil L.J.Leach and Company Ltd. v. Jardine Skinner and Company, P.M.Patil L.J.Leach and Company Ltd. v. Jardine Skinner and Company, P.M.Patil A.I.R. 1957 S.C. 357: 1957 S.C.J. 313: 1957 SCR 435: 1957 S.C.C. 237 One class of cases in which it is quite often pointed out that amendment might work injustice to the other side is where it takes away from that party a night accrued to him by expiration of certain time. In such class of cases it is now thoroughly well established that ordinarily a decree-holder will not be allowed to amend his execution on petition by including a new relief which since the date of decree has become barred by the provisions prescribing limitation. There is no reason to make any distinction between cases to which Sec.48, C.P.C or Art.182 applied on the one hand and the cases covered by Sec.3 of the Indian Limitation Act read with relevant entries in the schedule to the Indian Limitation Act. It is a mistake to think that Sec.48, C.P.C. lays down any inflexible rule in not allowing any amendment whatever may be the circumstances of the case, to the execution petition merely on the ground that if permitted it would be contrary to Sec.48, C.P.C. or Art.182 of the Limitation Act. The same argument can relevantly be raised in regard to suits in which amendment is sought, and is quite often so raised. The two situations therefore are similar and not different in so far as the principle underlying the amendment is concerned. In either case the amendment would not normally be allowed if the effect of the amendment is to deprive the other side of a valuable right to plead limitation. Nevertheless, there can be exceptional cases where special circumstances demand that in order to do substantial Justice between the parties and with a view to settle all disputes necessary for the effective disposal of the cases amendment may be allowed. The rule therefore that ordinarily in such cases amendment should not be allowed is not a universal rule and in peculiar or special circumstances an amendment may be allowed even where it has the effect of depriving the other side of his right to plead limitation. What follows is that the question of limitation, is one of the factors to be taken into account in the exercise of the courts discretion as to whether the amendment should be allowed. It would be erroneous to confuse this discretion of the court with its power to permit amendment. It does not affect the power of the court to order amendment, if that is required in the interests of justice.?