A A A KOTCHADAINAIDU Vs. AKKAYANAICKER

JUDGEMENT

(1.) THE respondent filed the suit in O. S. No. 322 of 1972 on the file of the learned District Munsif, Uttamapalayam against the petitioners seeking a decree for a sum of Rs. 18,912 being the principal and interest due on a promissory note dated 3. 6. 1969 executed by the defendants/petitioners in favour of the respondent/plaintiff. THE said suit was decreed by the court below on 2. 5. 1973. To execute the said decree, the respondent filed E. P. No. 412 of 1989 on 13. 9. 1989. THE petitioners filed E. A. No. 399 of 1991 to terminate the Execution Petition No. 412 of 1989 on the ground that it was barred by limitation. According to them, the decree in O. S. No. 322 of 1972 could have been executed on or before 2. 5. 1985. THE respondent/decree-holder filed a counter stating that at the instance of the petitioners, in I. A. No. 1675 of 1979 the decree was amended on 18. 10. 1979 giving effect to the benefits under Act 8 of 1973 and so the date for the purpose of limitation has to be construed only from 18. 10. 1979 and not from 2. 5. 1973. THE respondent has also mentioned in the counter that he filed E. P. Nos. 62 of 1980, 12 of 1981, 251 of 1982 and 681 of 1984 to execute the abovesaid decree, which were disposed of on one reason or the other. THE court below accepting the case of the respondent and following the decision of the Andhra Pradesh High Court in Fatimunnisa Begum v. Mohd. Zainulabuddin Saheb, A. I. R. 1986 A. P. 355 has held that the execution petition filed by the respondent is well within time and consequently rejected the application filed by the petitioners. Aggrieved against the same the petitioners have filed the above revision.

(2.) THE only question that has to be decided in this case is whether the period of limitation starts from the date of the original decree or from the date of the amendment, for the purpose of calculating the period of 12 years under Article 136 of the Limitation Act.

(3.) EVEN the learned Judge of the Kerala High Court in the decision in Ouseph v. Lona, A. I. R. 1979 Ker. 14, while construing the similar issue has held that the period begin to run from the date on which the decree became enforceable, i. e. , from the date of the original decree, and, although the decree underwent a change with its amendment, until the date of amendment, the decree in its original form is enforceable from the date when it was passed. After construing the scope of Section 48 of the Code which was repealed by Section 28 of the present Act, the learned Judge of the Kerala High Court has held as follows:- 'Sec. 49 of the Civil P. C. was found to be no longer necessary when Art. 182 of the repealed Act was replaced by Art. 136 of the present Act. That is why S. 48 of the Civil P. C. was repealed by S. 28 of the present Act. The principle of S. 48 C. P. C. is now embodied in Art. 136 of the present Act which provides for a 12 year period of limitation for the execution of a decree. The period begins to run from the date on which the decree became enforceable and that in the present case was the date of the decree itself. Although the decree underwent a change with its amendment on 24. 7. 1962, until the date of the amendment, the decree in its original form was enforceable as from the date on which it was passed, that is, 28. 6. 1961. It was that date which is crucial for computing the period of limitation as provided under Art. 136"