MOHANA RAO Vs. MOGILISETTI SRILAKSTMAMMA

JUDGEMENT

(1.) 1. The Civil Miscellaneous Appeal is directed against an order dated 7-7-1969 of the court of the Addl. District Judge, Krishna Machilipatnam passed in E. A. No. 54 of 1968 in O. S No. 9 of 1956 rejecting the amendment sought under Order 21 Rule 17 and Section 151 of the Code of Civil Procedure in E. A. No. 67 of 1963 in O.S.No. 9 of 1956 by incluiing the reliefs under Or. 21, Rules 21, 22, 54, 66 and 82 CPC for attachment and sale of some immoveable properties of the judgment debtors 3 to 7 in execution of the decree.

(2.) The suit O. S No. 9 of 1956 was filed by the I st respondent herein against the respondents 2 to 10. Respondent No 2 was a firm of which respondents 3 to 10 were partners. The suit was decretd on 29-2-1956 for a sum of Rs. 11, 056-6-0. The 1st respondent filed E. P. No. 6 of 1956 and recovered a sum of Rs. 6,000/-, Thereafter the 1st respondent transferred the decree on 31-8-1953 in favour of the present petitioner. The petitioner then filed E. A. 67 of 1963 referred to above on 9-10-1968 for two reliefs namely (1) for recognition of his transfer urder Order 21 Rule 16 CPC; and (2) to transfer the decree for execution to the Sub-court, Gudrvada as provided under section 39 CPC. Notices were issued on that E. A. and Counters were filed and that E. A. is still pending. The present E.A.54 of 1968 was filed by the petitioner on 5-10-1968 to amend the prayer in E. A. No. 67 of 1953 for execution of the decree in the District Court itself instead of transmitting it to the Sub-Court. Gudivada, as originally prayed for and for attachment and sale of certajn properties of the judgment-debtors referred to above This application for amendment of, the prayer in E. A. No. 67 of 1963 was dismissed on the ground that on 5-10-1968 on which date the E. A. 54 of 1968 for amendment was filed, the decree was barred by time as provided under section 48 CPC., 12 years time having been elapsed since the date of its passing. The period of limitation under Section 48 CPC, within which the decree has to be executed is 12 years from the date of the decree sought to be executed. It is assailing that view taken by the learned District Judge in dismissing E. A. No. 54 of 1968, this Civil Miscellaneous Appeal has been filed. As already noticed above the date of the decree is 29-2-1956.

(3.) When the amendment application E. A 54 of 1968 was filed on 5-10-58 it was more than 12 years since the date passing of the decree. When E. A. No. 67 of 1963 was filed on 9-10-1963 it was well within 12 years from the date of passing of the decree and also it is not in dispute that it was filed within three years from the date of the final order passed on an earlier application filed in execution. Therefore, E.A 67 of 1963 was within time. If the amendment sought now can be allowed and it dates back to the date of the filingof E. A. No. 67 of 1963, the decree is capable of execution by the attachments and sale of properties now sought by way of amendment The quesion is whether such an amendment can be allowed to enable the petitioner to execute the decree and realise the decree amount though the present application was filed after more than 12 years from the date of passing of the decree.