PHEKU Vs. GULAB DAS

JUDGEMENT

(1.) This second appeal raises the question whether the twelve years' limitation for the execution of decrees should be counted, in the case of a decree amended under Section 8 of the U. P. Debt Redemption Act, from the date of the original or the amended decree. The appeal has been filed by the judgment-debtor who contended before the execution Court that a decree-holder's application for execution was time barred if the period of limitation was counted from the date of the original decree. The objection was allowed. On appeal by the decree-holder the learned Temporary Civil Judge, Varanasi held that limitation commenced from the date of the amended decree. He allowed the appeal and dismissed the appellant's objection. Aggrieved by this decision the judgment-debtor has come to this Court in second appeal.

(2.) A very brief narration or facts is necessary for a proper understanding of the legal controversy between the parties. On 16-4-1935, the respondent Gulab Das filed a suit against the defendant appellant under Order 34 Rule 4 C. P. C., on the basis of a mortgage deed. He claimed a sum of Rs. 1042-8-0 under the mortgage and sought to realise it by the sale of the mortgaged property. On 30-11-1935 the suit was decreed for Rs. 900/ and proportionate costs. He subsequently applied for a final decree which was passed on 14-8-1937. In 1940 the U. P. Debt Redemption Act was passed. It permitted agriculturists and workmen to apply for the reduction of decrees already passed against them. Taking advantage of the provisions of the new. Act, the judgment-debtor applied for the reduction of the amount under the decree. His application was opposed by the decree-holder who contended, inter alia, that the judgment-debtor was not a workman. However, on 29-8-1942, after hearing parties, the Court allowed the application and reduced the amount of the decree to Rs. 462-9-6. The decree-holder filed an appeal on 28-1-1943 with the result that the amended decree was confirmed on that date. On 24-1-1955 that is, not quite 12 years after the dismissal of his appeal the decree-holder filed his application for execution of the amended decree. It is this application which has caused the present controversy between the parties. The judgment-debtor objected, that the application was time barred. He contended that the amended decree was really the old decree with the amount reduced and, therefore, the limitation must be counted from the date of the original decree. The decree-holder, on the other hand, contended that the original decree was replaced by 3 new decree and that, therefore, the limitation would commence from the date of the fresh decree. As stated above, the judgment-debtor was successful in the first Court and the decree-holder in the second. The matter has now come to this Court in Second Appeal.

(3.) It is common ground that if the limitation is to commence from the date of the original decree--14-8-1937--the present application for execution is time barred, but if it is to begin from the date of the amended decree --28-1-1943-- it is within time.