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Ganeshmal Pasmal Vs. Nandlal Tulsiram - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtMumbai High Court
Decided On
Case NumberSecond Appeal No. 1327 of 1950
Judge
Reported inAIR1954Bom104; (1953)55BOMLR846; ILR1954Bom92
ActsCode of Civil Procedure (CPC), 1908 - Sections 48, 48(1) and 152; Limitation Act, 1908 - Schedule - Articles 182, 182(4) and 183; Dekkhan Agriculturists' Relief Act - 15B
AppellantGaneshmal Pasmal
RespondentNandlal Tulsiram
Appellant AdvocateG.R. Samant, Adv. for ;B.N. Gokhale and ;V.V. Divekar, Advs.
Respondent AdvocateM.I. Patel, Adv. for ;D.V. Patel, Adv.
Excerpt:
.....the other hand, if the said period was computed from the date when the decree was originally passed, the application was clearly beyond time, both batchelor and kemp jj. , end if this view is adopted the answer to the question of limitation must clearly be in favour of the appellant in the present case. on the other hand, both the learned judges have expressly stated that, so far as the period of limitation under section 48 is concerned, the observation made in .the full bench decision of the madras high court was perfectly right. patel, however, this decision is no longer good law. , who delivered the judgment of the bench, has examined the position in detail, considered all the relevant decisions bearing on this point and has come to the conclusion that the view expressed in -narhar..........section 48 of the code has to be determined by reference to the date of the decree and the twelve years' period is not extended even if the decree as originally passed comes to be subsequently amended.7. it remains now to refer to a decision of this court in -- 'basawa chambasawraj v. somashekhararaj' air 1948 bom 49 (f) in which macklin and bavdekar jj. have commented upon a certain observation made by the learned judges of the madras high court in the full bench decision in -- 'ramachandra rao v. parasuramayya (c)' to which i have already referred. it would appear that, in dealing with the question as to the effect of the provisions of section 48, it was observed by the learned judges of the madras high court that an amendment of a decree to bring it in accordance with the judgment.....
Judgment:

Gajendragadkar, J.

1. This appeal has been referred to a Division Bench by Dixit J. because) as he has pointed out in his referring judgment, the question of limitation which falls to be considered in this appeal is of some importance. That question arises in this way. A decree in a mortgage suit was passed under Section 15B, Dekkhan Agriculturists' Relief Act, on 13-3-1926. This decree made the decretal amount payable by installments and it provided that in case of any single default the decree-holder was entitled to recover the whole of the decretal amount by sale of the mortgaged property. Under the decree the last instalment was payable in 1932. The decree-holder filed several darkhasts between 1927 and 1938 and in fact the mortgaged property was sold in 1935. The decretal amount was still not satisfied and the decree-holder wanted to proceed against the surety, who was defendant 3 in the mortgage suit. With that object he filed the present darkhast in 1945 and he claimed to recover the balance from the surety on the ground that, like the mortgagor, the surety himself had been made personally liable to pay the balance which remained due after the sale proceeds from the mortgaged property were realised.

It would appear that on 19-10-1942, the original decree was amended and the liability of the surety was clarified. This became necessary because, though in the judgment delivered by the learned Judge in the original suit on mort-gage it was made clear that the personal liability of the mortgagor and his surety was to arise after the mortgaged property was sold, the decree which was drawn up did not specifically refer to the personal liability of the surety. An application was, therefore, made by the decree-holder to get this matter clarified and the decree was suitably amended. In the present darkhast, the surety pleaded that the darkhast was barred by limitation under Section 18, Civil P. C. He raised other pleas, with which we are not concerned in the present appeal. Both the Courts below have rejected the plea of limitation and have directed the darkhast to proceed against the surety. It is this order which is challenged before us by Mr. Samant on behalf of the surety.

2. Mr. Samant contends that the Courts below were wrong in coming to the conclusion that the limitation prescribed by Section 48, Civil P. C. was to commence from the date when the decree was amended in 1942. His case is that the period of twelve years prescribed by Section 48 of the Code has reference to the date of the original decree. In other words, even if a decree is subsequently amended, the period of twelve years which has commenced on the making of the decree is not affected at all. The Courts below have held that the period must be reckoned from the date of the amendment of the decree. That is how the only question which we have to consider in the present appeal is: What is the correct view as to the effect of the provisions of Section 48, Civil P. C.

3. The terms of Section 48 themselves do not present any difficulty in this matter because they clearly and unmistakably indicate that the twelve years have to be computed from the date of the decree. Section 48, Sub-section (1), provides that, where an application to execute a decree has been made, no order for the execution of the same shall be made upon any fresh application presented after the expiration of twelve years from the date of the decree sought to be executed. (I am not referring to the other words of this Sub-section with which we are not concerned in the present appeal).

In other words, if a decree is passed on a particular date, the executing Court will not pass any order for the execution of such a decree if the application for execution is presented after the expiration of twelve years from the date of the decree sought to be executed. On these words, it seems to me clear that there is no scope for extending the period prescribed by Section 48 on the ground that the decree which is sought to be executed was subsequently amended and in a sense the application for execution is an application for the execution of the amended decree.

4. It is quite true that Article 182, Limitation Act, which prescribes the limitation of three years for the purpose of applications in execution, expressly refers to the amendment of the decree and makes provision for a specific period of limitation in respect of the amended decree. Paragraph 4 of Article 182 provides a period of three years, where the decree has been amended, from the date of amendment. That is to say, if a decree is amended, the three years which have to be computed for the purpose of deciding the question of limitation under Art. 182 have to be computed from the date of the amendment and not from the date of the original decree.

The fact that the Legislature has provided for the computation of the period under Art. 182 from the date of the amendment and has made no such provision in Section 48, Civil P. C. emphasizes, in my opinion, the policy of the Legislature that the period of twelve years which was prescribed under Section 48 was intended lo be absolute and without any exception. In this connection, it is necessary to refer to another part of the provisions of Article 182 again. Article 182 provides a period of three years for the execution of a decree or order made by any Civil Court not provided for by Article 183 or by Section 48, Civil P. C. The effect of this latter clause in Article 182 clearly is to make it subject to the provisions of Section 48, Civil P. C.

In our opinion, there can be no doubt that the provisions contained in Section 48. Civil P. C. are not affected by the provisions in Article 182. That is the plain effect of the clause in Article 182 to which I have just referred. Therefore, it seems clear that, whereas the Legislature made a specific provision for amended decrees in regard to the limitation prescribed under Article 182) it was not thought advisable by the Legislature to make a similar provision in respect of amended decrees under Section 48, Civil P. C. It is not difficult to understand the policy underlying the absolute character of the prescription of limitation made by Section 48, Civil P. C. The Legislature must have intended that, in regard to execution of decrees, the chapter of execution Should be over within twelve years from the date when the decree is passed.

It is true that the power to amend decrees has been conferred upon Courts under Section 152 and it is also true that there is no limitation prescribed for the exercise of this discretionary power to make amendments in decrees. But it does not follow therefrom that the discretionary power can be invoked so as to affect the provision of limitation made by Section 48, Civil P. C. If a decree-holder is required to apply for the amendment of the decree passed in his favour, he must take the necessary steps so as not to offend against the provisions of Section 48 of the Code. If he is not diligent in that behalf, and if an amendment is made at his instance more than twelve years after the decree is passed, it would not be open to him to apply for the execution of the decree on the ground that the Court, in the exercise of its inherent jurisdiction, has allowed the amendment and it is the amended decree which he 'seeks to execute. The words used in Section 48 of the Code are clear and unambiguous and they do not admit of any exception being made in favour of decrees on the ground that they have been subsequently amended.

5. This question has given rise to a conflict of judicial decisions; but, on the whole, the concensus of judicial authority is in favour of the view which we have taken. In fact, an early decision of this Court in -- 'Narsingrao v. Bandu' : AIR1918Bom217 (A), has clearly decided this point in favour of the appellant, though it must be conceded that the judgments of both the learned Judges have not elaborately set out reasons in support of their conclusion on this point. In -- 'Narsingrao's case (A)', a decree was passed on an award in 1897. It was subsequently amended in 1899 and the application for execution was made in 1909. The plea raised by the judgment-debtor under Section 43 of the Code was upheld by this Court. If the period of twelve years was computed from the date when the decree was amended, the application for execution was clearly in time.

On the other hand, if the said period was computed from the date when the decree was originally passed, the application was clearly beyond time, Both Batchelor and Kemp JJ. came to the conclusion that, even the amended decree must, under the provisions of the Civil Procedure Code, bear the date of the judgment and the date of the original judgment was in that particular case 17-11-1897. The effect of this decision was that for the purposes of. Section 48 of the Code, whenever the amendment may be made and however long after the date of the decree it may be made, the date of the decree will still remain the date of the judgment. That is one way of looking at the question of limitation which arises under Section 48, Civil P. C., end if this view is adopted the answer to the question of limitation must clearly be in favour of the appellant in the present case.

6. In -- 'Fakir Chand v. Kundan Singh' : AIR1932All351 ), the learned Judges of the Allahabad High Court have taken a similar view of the effect of the provisions of Section 48 of the Code. In fact, the learned Judges have cited with approval the judgment of this Court in -- 'Narsingrao's case (A)'. A Full Bench of the Madras High Court have taken a similar view in -- 'Ramachandra Rao v. Parasuramayya', AIR 1940 Mad 127 (C). We may add that Leach C. J., who delivered the judgment of the Full Bench has referred to an un-reported judgment of the Madras High Court in which Madhavan Nair and Cornish JJ. had, without giving any reasons, come to the conclusion that the period of twelve years prescribed under Section 48 of the Code should be computed from the date of the amendment whenever the decree originally passed in subsequently amended.

This view the Full Bench did not accept. In -- 'Baldeo Shukul v. Yusuf, 60 IC 318 (Pat) (D) a single Judge of the Patna High Court had held that Section 48, Civil P. C. must be read to permit computation of the period of twelve years from the date of the amendment made in the decree. But that view has likewise been dissented from by James and Rowland JJ. of the Patna High Court in - 'Mt Dulhin v. Harihar Gir' : AIR1939Pat607 (E). Thus, on the whole, the concensus of opinion is in favour of the view that the period of limitation prescribed by Section 48 of the Code has to be determined by reference to the date of the decree and the twelve years' period is not extended even if the decree as originally passed comes to be subsequently amended.

7. It remains now to refer to a decision of this Court in -- 'Basawa Chambasawraj v. Somashekhararaj' AIR 1948 Bom 49 (F) in which Macklin and Bavdekar JJ. have commented upon a certain observation made by the learned Judges of the Madras High Court in the Full Bench decision in -- 'Ramachandra Rao v. Parasuramayya (C)' to which I have already referred. It would appear that, in dealing with the question as to the effect of the provisions of Section 48, it was observed by the learned Judges of the Madras High Court that an amendment of a decree to bring it in accordance with the judgment does not have the effect of starting a fresh point of limitation; and this observation was relied upon before Macklin and Bavdekar JJ. in 'Basawa's case in support of the contention that, even in regard to the decision of the question of limitation under Article 182(4), it should be held that an amendment of the decree makes no difference.

The learned Judges rejected this argument and, with respect, rightly. They pointed out that the particular observation made in the Full Bench decision of the Madras High Court must be read in the context of the point which the learned Judges were then called upon to consider. They were called upon to consider the question of limitation under Section 48 of the Code and the particular observation must therefore, be read as confined to Section 48 of the Code. With respect, we think that this comment is fully justified. Therefore, in our opinion, it would not be accurate to say that Macklin and Bavdekar JJ. have expressed, even indirectly, any disapproval of the conclusion of the Madras High Court so far as the position of limitation under Section 48 of the Code is concerned. On the other hand, both the learned Judges have expressly stated that, so far as the period of limitation under Section 48 is concerned, the observation made in .the Full Bench decision of the Madras High Court was perfectly right.

8. Therefore, in our opinion, the Courts below were wrong in holding that the application for darkhast which was presented by the decree-holder in 1945 was in time. It is more than twelve years from the date of the decree and under Section 48, Civil P., C. it must be held to be barred.

9. There is another minor point which is raised before us by Mr. Patel on behalf of the plaintiffs. Mr. Patel contends that the liability of the surety arose only after the mortgaged property had been sold and it was found that the assets realised by the sale were not sufficient to satisfy the decretal claim. Mr. Patel says that the time when this position was realised should be treated as the starting point of limitation under Section 48 of the Code. In support of this contention, Mr. Patel has relied upon a decision of this Court in -- 'Narhar Raghunath v. Krishnaji Govind', 36 Bom 363 (G). Unfortunately for Mr. Patel, however, this decision is no longer good law.

The question which was decided by the learned Judges in this case has been subsequently considered by another Division Bench of this Court in -- 'Rango Ramacharya v. Gopal Nara-yan', AIR 1939 Bom 75 (H), and Broomfield J., who delivered the judgment of the Bench, has examined the position in detail, considered all the relevant decisions bearing on this point and has come to the conclusion that the view expressed in -- 'Narhar Raghunath's case (G)', can no longer be treated as good law. In fact, as Broomfield J. has pointed out, the opinion expressed by the Privy Council in -- 'Banku Behari v. Naraindas' has by necessary implication over-ruled the view taken by this Court in -- 'Narhar Raghunath's case (G)'. Therefore, we must hold that even in the case of a decree which grants reliefs some of which are not executable immediately after 'the passing of the decree, time under Section 48 of the Code begins to run from the date of the decree in respect of all the reliefs. Thus, even this minor point raised by Mr. Patel must fail.

10. The result is that the appeal succeeds, the order passed by the lower Courts is set aside and the darkhast is ordered to be dismissed with costs throughout.

11. Appeal allowed.


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