MAGAN LAL MARWARI Vs. SITARAM PANNA LAL

JUDGEMENT

(1.) The point for decision in this case is an attractive one and at first appeared to be one of some difficulty. But in my judgment it is concluded both by principle and authority. The judgment-debtor is the appellant before this Court and objected under Section 47, Civil P. C, against the execution of a decree which was made in the first instance on 21 August 1930. More than three years after the date of the decree an application for amendment was made on 5 January 1935, and then the application for execution on 13 May 1935, out of which this appeal arises. Mr. Beevor, the learned District Judge, relying upon the observations made by me in a judgment reported in Mt. Bhagwati Kuer V/s. Narsingh Narayan Singh AIR 1930 Pat 286 has come to the conclusion that the application was not barred by limitation. It is true that my observations are in a sense mere obiter as the facts of the case upon which reliance was placed were that the application for amendment was made before the decree had become barred by limitation. But in the view I now take the observations in the former case were warranted both on principle and authority as I have already stated.

(2.) Art. 182, Lim. Act, provides for various starting points of limitation for the execution of a decree, and under Clause (4), Col. 3 it is provided that where a decree has been amended, the starting point is the date of amendment. Now, the words of the Art. are quite unqualified; it does not speak of any particular form of amendment, whether the amendment is necessary or otherwise, whether the decree is capable of execution without the amendment; it does not qualify as I have said the matter of amendment in any way. There is a decision of this Court which was not relied upon at the Bar in Kalanand Singh V/s. Rajkumar Singh , where this point has been discussed. There Chapman, and Roe, JJ. decided that an action was barred by limitation as the nature of the amendment was such as not to give a fresh point for limitation. The learned Judges in that case, as I have indicated, discussed the nature of the amendment and decided the case accordingly. The learned Judges of the Calcutta High Court have held a contrary view in the decision in Durga Prosad Das V/s. Kedarnath Nayek and the observations which the learned Judges in that case made were that an executing Court does not sit as a Court of appeal over the Court which has made the decree or which has made the amendment, but only to see whether the decree has been amended in order to decide whether the application for execution is barred by limitation. The Madras High Court in Lakshmikanta Rao V/s. Ramayya AIR 1935 Mad 97, have come to the same conclusion relying upon a decision of their Lordships of the Judicial Committee of the Privy Council reported in Nagendra Nath Dey V/s. Suresh Chandra Dey [the same case is reported in Law Reports 59 Indian Appeals 283]. The same Art. of limitation was in question in that case. But the matter to be decided was whether execution was barred by limitation and whether the date from which limitation ran was from the date of an appeal which had been preferred in the case. Their Lordships of the Judicial Committee in the opinion expressed by Sir Dinshaw Mulla made this observation on the argument addressed that the nature of the appeal altered the question: There is in their Lordships opinion, no warrant for reading into the words quoted any qualification either as to the character of the appeal or as to the parties to it; the words mean just what they say. The fixation of periods of limitation must always be to some extent arbitrary, and may frequently result in hardship. But in construing such provisions equitable considerations are out of place and the strict grammatical meaning of the words is, their Lordships think, the only safe guide.

(3.) Likewise, the learned Judges of the Madras High Court, relying upon the decision to which I have just referred, have held that it was immaterial what was the nature of the amendment--whether the Court had jurisdiction to make it or not; in other words, the question is in a sense determined on the principle of res judicata. When the application for amendment was made, it would have been a complete answer by the judgment-debtor to the application that the decree was already dead in the sense of its being barred by limitation, and the amendment having been made it must be presumed that that question had no substance. As held by the learned Judges of the Madras High Court, it was not competent for the Court below in this case to sit in appeal on the decision of the Court amending the decree. In so far as the decision of this Court reported in Kalanand Singh v. Rajkumar Singh appears to hold that the Court may look into the nature of the amendment, I have no hesitation in saying that it was overruled by the decision of their Lordships of the Judicial Committee of the Privy Council in Nagendra Nath Dey V/s. Suresh Chandra Dey . On a parity of reasoning, that is to say, if it is impossible to look into the nature of the appeal under Art. 182, it is equally irrelevant to look into the nature of an amendment. In the case before the Privy Council the appeal was apparently irregular and incompetent and the persons affected by it were not parties and the appeal did not imperil the whole decree. In spite of that their Lordships gave full weight to the plain meaning of the word appeal contained in Art. 182. In my judgment the decision of the learned Judge in the Court below was right, his judgment must be affirmed and this appeal dismissed with costs.