DURGA PROSAD DAS Vs. KEDARNATH NAYEK

JUDGEMENT

(1.) This is an appeal by the legal representative of judgment-debtor 4 against the order of the District Judge of Midnapur affirming the decision of the Subordinate Judge allowing the execution of the decree in favour of the respondents. A final decree on a mortgage was made on 8 May 1924. The original judgment-debtor 4 died on 18 August 1924. An application for execution was made on 7 May 1927 against all the judgment-debtors and in which the name of the deceased judgment-debtor 4 was also mentioned. On 28 July 1927 by an ex parte application made by the decree-holder the present appellant was substituted in the place of the deceased judgment-debtor 4. Previous to that, the decree-holder made an application for amendment of the decree of 17 December 1926. A further application was made on 10th May 1927 for certain other amendments of the decree. An order was made by the Court on 6 June 1927 amending the decree in certain particulars. That Court, however, refused to amend the decree by striking out the name of the judgment-debtor 4 who was dead at the time and in place of that name to put in the name of the appellant as his legal representative. This was made on the objection of the present appellant who appeared in support of his objection. Both the Courts below have held that the decree as originally made was incapable of execution and the application for execution now made was not barred. It is unnecessary to mention that the execution was asked for of the amended decree in continuation of the application presented in Court on 7 May 1927. It has been argued on behalf of the appellant that the application for execution of the decree should be held to be barred as against the present appellant. It is urged that when the present appellant was substituted in place of his deceased predecessor by. the order of 28 July 1927, more than three years had elapsed from the date of the decree and therefore the execution as against him was barred. It is contended on the other side that the period of limitation should commence from the date of the amendment of the decree under para, 4. Col., 3, Art. 182, Lim. Act, where it is provided that the date of amendment of the decree is the time from which period of limitation begins to run. It is contended on behalf of the respondents that the application for execution was quite within time having been made on 7 May 1927 and reference is made to the last portion of the proviso to Expln. 1, Art. 182. Lim. Act, where it has been provided that where the decree or order has been passed jointly against more persons than one, the application if made against any one or more of them or against his or their representatives, shall take effect against them all.

(2.) It is contended that the application having been made in proper form against the surviving judgment-debtors the application against the heir of the deceased judgment-debtor was effective as if made against them all.

(3.) With regard to the first point that limitation should begin to run from the date of the amendment it is argued by the learned advocate for the appellant that the amendment must be a proper amendment; and further it is argued that the amendment should be also a necessary amendment, that is to say, that the original decree must be such as to be incapable of execution. It is argued that the present decree as drawn up on 8 May 1924 was one capable of execution and the amendment only made certain alterations as regards the interest and so forth. If the decree was capable of execution the period of limitation should not be allowed to run from the date of the amendment. In support of this contention an unreported case was cited before us. With great respect I am unable to accept the proposition of law laid down in that case. Where the legislature has provided that the time from which period of limitation for execution of a decree should begin to run where a decree has been amended, is the date of amendment, it is not for the Court of execution to enquire whether the amendment was properly made, whether the original decree was capable of execution or whether for any other reason the Court was wrong in making the order for amendment of the decree. The 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 it has only to see whether the decree has been amended in order to decide whethe application for execution was barred by limitation or not. To introduce other considerations as regards the correctness or propriety of the amendment made would be to usurp the functions of the Court of appeal to which the judgment-debtor might have brought the matter of amendment when the Court made the amendment. In my judgment therefore, the only point which we have to see in deciding the question of limitation is what should be considered the starting point of limitation and under para. 4, Col. 3, Art. 182, Lim. Act, we must take it that the starting point is the date of amendment of the decree which was in this case the 6 June 1927.