GANESHMAL PASMAL Vs. NANDLAL TULSIRAM

JUDGEMENT

(1.) THIS appeal has been referred to a Division Bench by Dixit J. because) as he has pointed out in his referring judgment, the question of limitation which falls to be considered in this appeal is of some importance. That question arises in this way. A decree in a mortgage suit was passed under Section 15b, Dekkhan Agriculturists' Relief Act, on 13-3-1926. This decree made the decretal amount payable by installments and it provided that in case of any single default the decree-holder was entitled to recover the whole of the decretal amount by sale of the mortgaged property. Under the decree the last instalment was payable in 1932. The decree-holder filed several darkhasts between 1927 and 1938 and in fact the mortgaged property was sold in 1935. The decretal amount was still not satisfied and the decree-holder wanted to proceed against the surety, who was defendant 3 in the mortgage suit. With that object he filed the present darkhast in 1945 and he claimed to recover the balance from the surety on the ground that, like the mortgagor, the surety himself had been made personally liable to pay the balance which remained due after the sale proceeds from the mortgaged property were realised. It would appear that on 19-10-1942, the original decree was amended and the liability of the surety was clarified. This became necessary because, though in the judgment delivered by the learned Judge in the original suit on mort-gage it was made clear that the personal liability of the mortgagor and his surety was to arise after the mortgaged property was sold, the decree which was drawn up did not specifically refer to the personal liability of the surety. An application was, therefore, made by the decree-holder to get this matter clarified and the decree was suitably amended. In the present darkhast, the surety pleaded that the darkhast was barred by limitation under Section 18, Civil P. C. He raised other pleas, with which we are not concerned in the present appeal. Both the Courts below have rejected the plea of limitation and have directed the darkhast to proceed against the surety. It is this order which is challenged before us by Mr. Samant on behalf of the surety.

(2.) MR. Samant contends that the Courts below were wrong in coming to the conclusion that the limitation prescribed by Section 48, Civil P. C. was to commence from the date when the decree was amended in 1942. His case is that the period of twelve years prescribed by Section 48 of the Code has reference to the date of the original decree. In other words, even if a decree is subsequently amended, the period of twelve years which has commenced on the making of the decree is not affected at all. The Courts below have held that the period must be reckoned from the date of the amendment of the decree. That is how the only question which we have to consider in the present appeal is: What is the correct view as to the effect of the provisions of Section 48, Civil P. C. ?

(3.) THE terms of Section 48 themselves do not present any difficulty in this matter because they clearly and unmistakably indicate that the twelve years have to be computed from the date of the decree. Section 48, Sub-section (1), provides that, where an application to execute a decree has been made, no order for the execution of the same shall be made upon any fresh application presented after the expiration of twelve years from the date of the decree sought to be executed. (I am not referring to the other words of this Sub-section with which we are not concerned in the present appeal ). In other words, if a decree is passed on a particular date, the executing Court will not pass any order for the execution of such a decree if the application for execution is presented after the expiration of twelve years from the date of the decree sought to be executed. On these words, it seems to me clear that there is no scope for extending the period prescribed by Section 48 on the ground that the decree which is sought to be executed was subsequently amended and in a sense the application for execution is an application for the execution of the amended decree.