MAHESH SINGH Vs. GAJADHAR SINGH

JUDGEMENT

(1.) This appeal arises out of an order dismissing an application under Order 21, Rule 90 for setting aside an execution sale. The only point urged before us is that the execution itself, which was based on an application of 18 September 1935, was incompetent because the decree under execution was passed on 26 January 1934, and no notice under Order 21, Rule 22 was either served or even taken out. It is however not disputed that the decree of 26 January 1934--it was a final decree in a partition suit--was amended after notice to the parties concerned on 2 September, 1935. If limitation is counted from this date, no notice under Order 21, Rule 22 was at all necessary. The learned advocate for the appellants has contended that the date of the decree contemplated in Order 21, Rule 22 must be the date of the decree as originally passed and cannot be the date of amendment of the decree; and in support of this contention he has referred to Clause (4) which was added in 1908 to Art. 182 (replacing old Art. 179), Limitation Act, and gives the starting point of limitation for the execution of a decree which has been amended as the date of the amendment.

(2.) But that addition was only made in order to settle a conflict of views on the question whether the amendment of a decree did or did not come within the expression "a review of judgment" which occurred in Clause (3) and gave a fresh starting point. Unlike Art. 182 aid unlike the Civil Procedure Code of 1882, Order 21, Rule 22 does not specifically deal with decrees which have been modified in appeal, and yet it is obvious that in such cases the period of one year will have to be counted from the date of the appellate decree which is the decree to be executed. The decree contemplated in Order 21, Rule 22 must, it seems to me, be the decree to be executed, not only when it is an appellate decree dealt with in Clause (2) but also when it is a decree which has been reviewed or amended as dealt with in Clauses (3) and (4) of Art. 182, Limitation Act.

(3.) From the time the original decree was amended--I observe in passing that it was amended on notice and before it had become time-barred--the parties in the present case were all (as the case may be) bound by or entitled to execute the amended decree instead of the original decree; and the starting point for limitation for execution was the date of the amendment.