RAMESHWAR NARAIN MISRA Vs. RAGHUNANDAN PURBEY

JUDGEMENT

(1.) The only question to be decided in this case is one of limitation and it arises on the following facts: The respondent obtained an ex parte decree for money against the appellant on 22 June, 1931 but he took no step for executing the decree within three years of that date. On 3 May 1935 (more than three years after the date of the decree) he made an application for the amendment of the decree under Section 152, Civil P.C., on the ground that the pleader's fee and certain other costs awarded to him had been wrongly calculated. On 3 May 1935 the Court without issuing notice to the defendants, but after hearing the decree- holder's pleader, directed that the pleader's fee be raised from Rs. 26-5-0 to Rupees 26.13.0 and the other costs be reduced from Rs. 3.5-6 to Rs. 1-11-9 with the result that the total claim awarded to the decree-holder was reduced by Rupees 1-2.0.

(2.) Subsequently on 26 April 1935 the respondent (decree, holder) applied for the execution of the decree but the appellant (judgment-debtor) resisted the application on the ground that it was barred by limitation. The appellant's objection was upheld by the Munsif before whom the execution petition had been filed but was negatived by the District Judge on appeal. The judgment-debtor has accordingly preferred this second appeal under Section 47, Civil P.C.

(3.) Now, as the Courts below have pointed out, the question whether the application for execution is barred or not depends upon the proper construction of Art. 182, Clause (4), Lim. Act. The period of limitation under Art. 182 is three years and Clause (4) provides that when the decree has been amended, the period of three years is to run from the date of the amendment. The construction of the clause presents no difficulty when the decree is amended within three years of the date on which it was passed. In those oases however in which the amendment is made more than three years after the date of the decree, a question arises as to whether Clause (4) of Art. 182 is to be read independently of Clause (1) or subject to it; or, in other words, whether a decree which has been amended after the execution is barred under Clause (1) can be executed. The decisions of the High Courts are not uniform in such cases and may be classified under three groups. (1) In a number of oases it has been held that where a decree has not been executed within three years from its date, it can no longer be executed under Art. 182(1) and the amendment of such a decree, after its execution has become barred under that clause, cannot give a fresh start to limitation from the date of amendment: Anandram V/s. Nityananda Barham A.I.R.1916. Cal. 511, Rabiuddin V/s. Ram Kanai SenA.I.R.1920. Cal. 769, Jhamman Lal V/s. Daulat Ram A.I.R.1924. Lah. 329, Haidri Khanam V/s. Bhawani Shankar A.I.R1934.. Oudh 43 and Debi Bakhsh V/s. Shambhu Dial A.I.R.1926. All 384. (2) In another group of oases it has been decided that where the original decree is incapable of execution, time runs from the date when the decree is amended and when a proper decree capable of execution is drawn up: Sanatan Sant V/s. Dinabandhu Giri A.I.R.1921.Cal. 89 and Mahamaya Prasad Singh V/s. Abdul Hamid A.I.R.1914. Cal. 36. (3) There is a third group of oases in which it has been held that inasmuch as Art. 182(4) expressly provides that the date from which the period of limitation for execution of a decree should be computed is the date of the amendment, it is not for the Court of execution to inquire whether the amendment was properly made or whether the original decree was capable of execution or whether for any other reason the Court was wrong in making an order for amendment of the decree: Durga Prosad V/s. Kedar Nath Nayek A.I.R.1929. Cal. 650, Lakshmikanta Rao V/s. N. Ramayya A.I.R.1935. Mad. 97, Mt. Bhagwati Kuer V/s. Narsingh Narayan Singh A.I.R.1935. Pat. 286 and Maganlal Marwari V/s. Sitaram Pannalal A.I.R.1926. Pat. 316.