HARIHAR PROSAD SINGH Vs. GANGA SINGH

JUDGEMENT

(1.) This appeal is directed against an order of the Subordinate Judge, first Court, Muzaffarpur, dismissing a petition of objection filed by the J. Ds. in an execution proceeding. The objection was to the effect that the application for execution was time barred.

(2.) A preliminary decree for partition had been passed on 23-12-1931, & this decree was made final on 23-12-1935. An appeal was preferred to this Court against the preliminary decree on 13-3-1936, & this appeal was dismissed on 12-1-1939. The D. Hs. applied for the execution of the decree on 5-6-1942 & the J. Ds. filed an application under Section 47, Civil P. C. objecting to the maintainability of the execution petition on the ground that it had not been filed in time. The petition was rejected by the Court of first instance, but on appeal this Court by its order dated 10-11-1944 held the execution to be time barred. 2. While the matter was pending before this Court delivery of possession in pursuance of the final decree was given to the parties in June, 1943. On 8-11- 1943, however, deft. 3 p in a petition for the amendment of the decree, & the amendment was allowed on 2-2-1944. The present application for execution was filed on 6-12-1945, & an objection was taken that the application for execution could not be deemed to be in time because no fresh terminus a quo was available to the D. H. on account of the amendment of the decree. The learned Subordinate Judge was of the opinion that a fresh terminus a quo was available to the D. H. on account of the amendment of the decree & accordingly he held that the application for execution was within time.

(3.) In my opinion, the view taken by the Subordinate Judge is correct, & now there is a preponderance of judicial opinion in favour of the view which he has taken. In 'Magan Lal y. Sitaram', 16 Pat 290; Wort, J, after reviewing the authorities on the point came to the conclusion that where a decree was amended more than three years after it was passed & the J. D. objected to the execution of the amended decree, the terminus a quo would be deemed to be the amendment & not the original decree. His Lordship further pointed out that it was not open to the executing Court to go behind the order of amendment & to enquire if the decree was really barred on the date of amendment or not.