TIRTHANANDA JENA Vs. BAIRAGI TRIPATHY AND ANR.

JUDGEMENT

(1.) IN this revision petition filed by one of the judgment -debtors, challenge is raised to the order dated 12 -7 -1988 of the Executing Court rejecting the Petitioner's application under Section 47, Code of Civil Procedure.

(2.) THE opp. party No 1 filed Money Suit No. 51 of 1968 in the Court of the Munsif, Kendrapara against the Petitioner and the opp. party No. 2 for realisation of Rs. 2078.55. The suit was decreed against the Defendants by judgment dated 19 -10 1970 and the decree dated 3 -8 -1973. The opp. party No. 1 filed Execution Case No. 13 of 1975 in the 'Court of the Munsif, Kendrapara against the judgment -debtors (Petitioner and opp. party No. 2), for realisation of the decretal amount. In the execution petition the decree holder mentioned certain immovable properties (A. 3.16 decimals) belonging to the judgment -debtors jointly. When the said property under attachment was about to be sold the opp party No. 2 filed an application on 11 -8 -1977 under Section 13 of the Orissa Money Lenders Act seeking permission of the Executing Court to pay the decretal dues by instalments (Misc. Case No. 152 of 1977). The application was allowed by order dated 8 -9 -1977 and the opp. party No. 2 was permitted to pay the decretal amount in quarterly instalment of Rs. 300/ -. The said opp. party paid a total sum of Rs. 300/ - (on 30 -9 -1977 Rs. 100/ -, on 7 -12 -1977 Rs. 70/ - and on 2 -11 -78 Rs. 130/ -). On 30 -6 -1978 the prayer for further time to pay the instalment dues was rejected and sale proclamation was issued. Thereafter the opp. party No. 2 filed a petition dated 27 -11 -1981 contending that the Execution Case had abated under Section 3 of the Orissa Debt Relief Act, 1980. He alleged, inter alia, that being a small farmer he was a 'scheduled debtor as defined in Section 2(h) of the Act. The said application having been dismissed for default, a fresh application in similar terms was filed on 24 -10 -1983. By order dated 20 -11 -1985 the Executing Court accepted the contention and exonerated him from the liability to pay the decretal amount. It was further held in the said order that the liability to discharge the decretal dues had been assigned to the opp. party No. 2 (judgment -debtor No. 1) in an amicable partition between himself and the Petitioner (judgment -debtor No. 2). On 31 -1 -1986 the opp. party No. 1 filed a petition to amend the execution petition by excluding A.1. 45 decimals of land belonging to the opp. party No. 2 (judgment -debtor No. 1) and to proceed against the balance land of A.2. 10 decimals and to include a further prayer in the execution petition to attach the monthly salary of the Petitioner (judgment -debtor No. 2). By order dated 10 -7 -1986 the Executing Court allowed the petition for amendment. Thereafter the Petitioner filed an application under Section 47 (Misc. Case No. 240 of 1987) contending, inter alia, that the decree could not be executed against him inasmuch as the Executing Court had accepted the position that the liability to discharge the decree was solely upon the opp. party No. 2 (judgment -debtor No. 1) and had exonerated the said judgment debtor from the liability relying on Section 3 of the Orissa Debt Relief Act and therefore the consequential position was that the joint decree against both the judgment -debtors stood discharged. The Petitioner raised a further plea that in any case the amendment to add a new property, that is his monthly salary in the Execution petition could not be allowed after 12 years from the date of passing of the decree.

(3.) FROM the facts discussed in the foregoing paragraphs, two questions arise for determination: Whether by the order of the Executing Court exonerating the opp. party No. 2 (judgment debtor No. 1) from the liability to discharge the decree the entire decree could be said to have been discharged, and whether the decree -holder's application to amend the Execution Petition to add the new prayer to attach monthly salary of the Petitioner was not entertainable being barred by limitation. While it is the contention of the Petitioner that both the questions are to be answered in the affirmative, according to the opp. party No. 1 (decree - holder) the Executing Court rightly answered the points in the negative.