KESHO SINGH Vs. (RANI) BHUNESHWARI KUER

JUDGEMENT

(1.) THIS appeal is by the judgment-debtors. The respondent instituted a suit against the appellants for the rent of a number of holdings in some of which all the judgment-debtors were interested and in some of which only some of them were interested. The plaintiff set out the amount of rent claimed in respect of each of the holdings. The suit was decreed; but in the decree that was drawn up, the rent due in respect of each of the holdings was not shown, but the consolidated amount due for all the holdings was entered as the amount which the decree-holder was entitled to recover. THIS decree was passed on 22 December, 1936. On 10th January 1940, the decree-holder applied for amendment of the decree by apportionment of the rent in the manner set out in the plaint. The amendment was allowed by an order dated 29 January 1940. An application for execution of the amended decree was made on 6 April 1940. The application was opposed by the judgment-debtors on the ground that it was barred by limitation. THIS objection was overruled by the first Court and in appeal by the decree-holder, the appellate Court also held that limitation ran against the decree-holder only from the date of the amendment of the decree and that, consequently, the application for execution was within time. The question whether limitation runs from the date of the amendment of the decree or from the date of the original decree is one that is dealt with by the Limitation act itself [ Art. 182(4)]. That article provides a period of three years for execution of a decree of a civil Court terminus a quo ordinarily being the date of the decree; but where the decree has been amended, terminus a quo is the date of the amendment. It has been pointed out in this Court that Clause (4) of Art. 182 is not happily worded in that it does not disclose whether it was the intention of the Legislature to postpone the starting point of the period of limitation for execution of a decree even in cases where the decree is not amended until after the period of limitation for its execution has expired. However that may be, we have examined the various decisions of this Court and I will now state the effect of them.

(2.) IN Mt. Bhagwati Kuer V/s. Narsingh Narayan Singh A.I.R. 1930 Pat. 286 it was held that an executing Court is not entitled to consider the validity of an amendment or whether the decree, apart from the amendment, was capable of execution and that in any case, where the application for amendment is made within three years from the date of the decree, an application for execution is within time if made within three years from the date of the order allowing the amendment, even though that order is made beyond three years from the date of the original decree. IN that case the application for amendment was within three years from the date of the decree but the order allowing the amendment was beyond that period. IN Magan Lal V/s. Sitaram Panna Lal A.I.R. 1937 Pat. 316 Wort, J. sitting singly, held that it was not open to the executing Court to go behind the order of amendment and to enquire if the decree was really barred on the date of amendment or not, the question being res judicata. IN that case the application for amendment and the order for the amendment were both more than three years from the date of the decree. IN Rameshwar Narain V/s. Raghunandan A.I.R. 1938 Pat. 57 a Division Bench held that if there has in fact been an amendment within the meaning of Clause (4) of Art. 182 then, even though that amendment has been made more than three years from the date of the original decree, terminus a quo for an application for execution runs from the date of the order of the amendment. But it was also pointed out that it does not save limitation if the alteration in a decree does not amount to an amendment within the meaning of Clause (4) of Art. 182. IN that case the amendment consisted of a variation of the amount of costs to the extent of He. 1-2-0 and this was held to be a correction of a trifling arithmetical error and not an amendment of the decree within the meaning of Clause (4) of Art. 182. Similarly, in Kalanand Singh V/s. Raj Kumar Singh A.I.R. 1917 Pat. 517 it was held that an amendment of a rent-decree consisting merely of a correction in the rate of rent the amount of rent decreed remaining the same, did not provide a fresh starting point for limitation. It is contended by the appellants in the present appeal that the amendment in the present case was not a substantial one and that, therefore, no fresh terminus a quo was available to the decree-holder for execution of the decree. IN my opinion, this contention is not sound. As originally passed the decree only entitled the decree-holder to sell the right, title and interest of the judgment, debtors in their holdings. It was incapable of execution as a rent decree. The consequence of the amendment was to confer on the decree-holder the right to sell the holdings of the tenants. Such an amendment, in my opinion, was of a substantial nature and resulted in time running against the judgment-debtors from the date it was made and not from the date of the original decree. It has, however, been contended on behalf of the judgment-debtors appellants that the amendment does not affect them because they had no notice, of it. The answer to that contention is that they did not avail themselves of the right to appeal against the amended decree or the right to apply in revision against the order allowing that amendment. It is doubtful, therefore, whether in the executing Court they were entitled to take the point that they had no notice of the amendment. But even though that point could be taken in the executing Court, they failed to prove that they had no notice. For these reasons, in my opinion, the appeal is without merit and must be dismissed with costs. Shearer, J. I agree.