Skip to content


Basawa Chambasawraj Vs. Somashekhararaj Shivraj - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMumbai
Decided On
Case NumberSecond Appeal No. 629 of 1943
Judge
Reported in(1947)49BOMLR557
AppellantBasawa Chambasawraj
RespondentSomashekhararaj Shivraj
DispositionAppeal allowed
Excerpt:
indian limitation act (v of 1908), article 182(4)-execution of amended decree-decree time-barred on date of application for amendment-amendment whether gives fresh starting point for limitation-whether amendment should be substantial.;under article 182(4) of the indian limitation act, 1908, an amendment of a decree gives a fresh starting point for limitation, whether the amendment be formal or substantial and whether the decree amended was or was not time-barred at the date of the amendment.;lakshmikanta rao v. ramayya (1934) i.l.r. 58 mad. 743 and imam din v. the peoples instalment and saving bunk, ltd., lahore (1940) i.l.r. 22 lah. 659, followed.;ramachandra rao v. parasuramayya [1940] mad. 349, f.b., distinguished.;nagendranath de v. sureschandra de (1932) i.l.r. 60 cal. 1, s.c. 34..........respect we are not prepared to hold that it is correct. they also said that a correction made in a time-barred decree leaves the decree still time-barred. for the purposes of section 48 and the 12 years' rule that no doubt is true; but we cannot agree that it is true for the purposes of article 182 and the three years' rule. on the other hand there are a number of decisions which insist upon following the plain language of the article itself for the purposes of the three years' rule, the general effect being that 'amendment' means exactly what it says, and since it is not qualified by the article in any way, it includes an amendment of a decree which had become incapable under the three years' rule of being executed even before the amendment was made, and that it also includes an.....
Judgment:

Macklin, J.

1. This is a decree-holder's appeal against an order in execution dismissing his petition. There had been a previous execution of the decree and that execution came to an end rather more than three years before the decree-holder put in an application for amendment of the decree, so that at the time of the application for amendment execution of the decree was barred under the three years' rule. The amendment, however, was allowed and the present application for execution is the result. It has been dismissed in spite of the provisions of Article 182(4) of the Indian Limitation Act, which dates the three years' period in the case of an amended decree from the date of the amendment. The executing' Court holds that the date of the amendment given in the third column of the schedule under Article 182(4) applies only when the decree amended was still capable of execution at the time of the amendment, and there is judicial authority for that view. Nevertheless in this appeal we think that the executing Court was wrong and that the decree must be executed as it stands.

2. If I had to decide this point in the absence of authority, I should take the words in the article at their face value and hold that the date of the amendment as the starting point for limitation means the date of the amendment and nothing else. It can be argued that an executing Court, though it is not entitled to go behind the decree and see whether the decree is a good decree or a bad decree, is nevertheless entitled to consider whether there has or has not been an amendment of the decree. It is difficult to controvert any such argument. But certain authorities have gone to the extent of holding that an amendment for the purposes of Article 182(4) means something more than a formal amendment, so that if the amendment is only formal the three years' period dates not from the date of the amendment but from the date of the unamended decree. I may refer in that connection to Rameshwar Narain Misra v. Raghunandan Purbey I.L.R.(1937) Pat. 453. There is something attractive in this contention, but nevertheless we do not think that it has any real substance. The article speaks of the date of the amendment without any sort of qualification, and we are not entitled to speculate upon the intentions of the Legislature, provided that effect can be given to the plain words of the statute without making nonsense of it. In this case we do not know the intentions of the Legislature, and for all we know that point may have been considered before the article was framed and the article deliberately left in its present condition for various reasons. There is also a decision of a single Judge of the High Court of Madras in Ahammad Kutty v. Kottekkat Kuttu I.L.R.(1932) Mad. 458 which comes to the definite conclusion that a time-expired decree is dead and cannot be revived by an amendment, so that the amendment in spite of the plain words of the article will not give a fresh starting point to limitation. The learned Judge says (p. 467):-

If the literal construction of Article 182 Clause 4, is to be accepted, then it would enable the decree-holder to execute a barred decree, but I cannot believe that this result was intended by the Legislature to follow from this provision.

In support of this view a number of decisions from the unauthorised reports were cited, but nothing from the authorised reports. On behalf of the judgment-debtor reliance has been placed upon a decision of a full bench of the Madras High Court in Ramachandra Rao v. Parasuramayya [1940] Mad. 349.. That was a case where the Court had to consider the effect of an amendment upon the 12 years' rule provided by Section 48 of the Civil Procedure Code. The ground of the decision that a decree that was barred under the 12 years' rule could not be executed merely by reason of an amendment of the decree was that Article 182 of the Indian Limitation Act leaves the provisions of Section 48 of the Civil Procedure Code untouched. For the purposes of the three years' rule given in Article 182 there is a specific provision giving a fresh starting point of limitation from the date of an amendment, but there is no corresponding provision in s. 48 of the Civil Procedure Code to affect the 12 years' rule. That was the real ground of the decision. It is true that their Lordships said that an amendment of a decree to bring it in accordance with the judgment does not have the effect of starting a fresh period of limitation, implying thereby that a formal amendment is not the kind of amendment that is referred to in Article 182, but that remark was not necessary for the decision of the case, and with respect we are not prepared to hold that it is correct. They also said that a correction made in a time-barred decree leaves the decree still time-barred. For the purposes of Section 48 and the 12 years' rule that no doubt is true; but we cannot agree that it is true for the purposes of Article 182 and the three years' rule. On the other hand there are a number of decisions which insist upon following the plain language of the article itself for the purposes of the three years' rule, the general effect being that 'amendment' means exactly what it says, and since it is not qualified by the article in any way, it includes an amendment of a decree which had become incapable under the three years' rule of being executed even before the amendment was made, and that it also includes an amendment which is formal as well as an amendment which is substantial. That a statute should be construed according to its plain meaning, if that can be done, without violence to commonsense or the obvious intention of the Legislature, is elementary, and the Privy Council insisted upon the need for following the plain words of the statute in Clause (2) of Article 182 in spite of certain equitable considerations which arose as to the desirability of applying it in that particular case: see Nagendranath De v. Sureschandra De 34 Bom. L.R. 1065 For this rigid meaning of Article 182(4) see Lakshmikanta Rao v. Ramayya I.L.R.Q(1934) Mad. 743 and Imam Din v. The Peoples Instalment and Saving Bank, Ltd., Lahore I.L.R. (1940) 22 Lah. 659 where the various decisions are considered at length. We have no doubt that we ought to follow the plain unqualified words of the statute and hold that an amendment of a decree gives a fresh starting point for limitation, whether the amendment be formal or substantial and whether the decree amended was or was not time-barred at the date of the amendment.

3. In this case there is a further argument on behalf of the judgment-debtor that the amendment was not really an amendment at all, since it appears not in the decretal order as such but in the plaint as reproduced in the preamble to the decree; but in our opinion that makes no difference. What seems to have happened in this case is that execution failed in the first instance, owing to incorrect descriptions of areas and survey numbers. It may be that the bailiff who found himself unable to execute the decree owing to these incorrect descriptions was not very clever; but the fact remains that it was found necessary to amend the decree so as to give the correct areas and survey numbers, and the effect of putting the corrections into the preamble to the decree and not in the decretal order itself was to make it necessary to read the decretal order along with the preamble to find out the exact meaning of the decretal order. That is the same thing as putting the corrections in the decretal order itself.

4. We are satisfied that in this case there was an amendment of the decree, and that in spite of the arguments that have been addressed to us on behalf of the judgment-debtor, the amendment gave a fresh starting, point to limitation. We therefore allow the appeal and direct that execution do proceed. The judgment-debtor will pay the costs throughout.

Bavdekar, J.

5. In any view Clause 4 of Article 182 should not be read subject to Clause 1, and as a matter of fact Clause 1 must be read subject to that clause as it must be read subject to Clauses (2) and (3). That means the starting point for limitation will be furnished by the date of the decree (confining ourselves to the question of amendment) only in cases where there has been no amendment. The question is sometimes raised as to whether it is necessary to read, e.g. Clauses 8 and 1 of Article 182 together. Now, in a sense that is correct, because one must necessarily, in order to gather the meaning of any portion of Article 182, read the article as a whole. But reading Clause 1 and Clause 4 together does not seem to me to give any other result except that where there has been an amendment the starting point of limitation will be the date of the amendment, otherwise the starting point of limitation will be the date of the decree.

6. It is to be remembered that we have to construe Clause (4) of Article 182, Once there has been an amendment, the date of the amendment, speaking ordinarily, will be quite clear, and there is no scope therefore for construing the words 'date of the amendment.' The only words therefore to be construed are whether the decree has been amended. The executing Court has however a right to construe these words, because when it is contended that execution is barred by limitation it is the executing Court which must determine whether the execution is barred or not and consequently whether there has been an amendment whatever the Court which passed the decree thought that it was doing. But at the same time all that the executing Court could determine is whether there has as a matter of fact been an-amendment of the decree or not. The question may, at first sight, appear to be very simple but in many cases it may be the subject of controversy and sometimes it may not even be altogether free from difficulty. But that does not alter the fact that all that an executing Court can do is to decide whether there has been an amendment of the decree or not, and for that reason it appears to me that if it can be said that there has been an amendment, all questions, namely, as to whether the amendment is a formal one or whether the amendment is of a decree which was incapable of execution, are irrelevant for the determination of the question as to whether the execution of the decree is barred by time or not. To some extent one may be able to predicate about an amendment which is said to be formal that as a matter of fact it was no amendment at all. To quote one illustration, supposing a decree is passed upon a compromise andrelates to property which is not included in the suit. Supposing that the Court which passed the decree, following the correct procedure confined the operative part of the decree to the property in the suit and relegated the portions of the compromise which were concerned with the property not included in the suit to a schedule, it may be contended that an amendment in the schedule is either a formal amendment or that it is an amendment which does not affect the question of execution of the decree, at any rate the execution by the party which has come to Court for execution. If it is contended in such a case that the amendment is purely formal, it may in one sense be correct. But the real reason, if at all the Court decides that the starting point of limitation is not the date upon which the schedule is amended but the date of the decree would be that there has, as a matter of fact, been no amendment or at any rate there has been no amendment which affects the execution by the party that has come to Court and not on the ground that it is a formal amendment or an amendment which was unnecessary. It has to be remembered that after all 'amendment' means all kinds of amendments, and if at all the meaning of the word is to be limited, it must be done in order to avoid either some absurdity, hardship or injustice or inconvenience presumably not intended. Where the question with which one is concerned is a question relating to the starting point of limitation, it is obviously difficult to say that it causes absurdity or hardship or injustice to lay down that the starting point of limitation is rather one than the other, and the ground of inconvenience does not appeal very much to modern jurists. It may be just as well to mention that in this particular case I do not think that the question of inconvenience is involved. But the principal point which must be remembered is that if at all the meaning of the word 'amendment' is to be limited, it must be in order to avoid absurdity, hardship or injustice, and it does not involve any injustice to hold that where there has been an amendment of the decree, the starting point is the date upon which the amendment was made, provided, as I said above, the amendment is real, in the sense that it affects execution by the party that has come to Court and that it cannot be said that there was as a matter of fact no amendment at all. It is true that to interpret Clause 4 strictly must sometimes lead to this result that a decree of which execution was barred at the time it was amended, and as a matter of fact even at the time when the application for its amendment was made, can be executed any time after the amendment in some cases. But then that is the result which follows from the construction of Clause (4) following the ordinary rules of construction, and the question is whether there is any other provision of law or principle which requires that Clause (4) should not be interpreted in that manner, and the only principle to which our attention has been drawn in this connection has been referred to in the judgment of the Madras High Court in Ramachandra Rao v. Parasuramayya [1940] Mad. 349 F.B.. At p. 355 of that judgment it is observed:

But because the Code gives power to correct slips or omissions at any time it does not mean that the law of limitation is affected. A correction made in a time-barred decree leaves the decree still time barred.

7. Now, the words of a judgment must not be read as if they were the words of a statute, and I understand these words to mean that in the case with which their Lordships of the Madras High Court were concerned, namely the case in which it was contended that execution was barred under Section 48 of the Code of Civil Procedure, a correction made in a decree which was barred by time because more than 12 years had elapsed after it had been passed does not have the effect of reviving the decree. With respect, that proposition is sound in the class of cases to which the case dealt with there pertained, but if a time-barred decree remains time-barred in that class of cases even after correction, that is the result of the contraction of Section 48 according to the usual rules of construction and is not a principle, or cannot be deemed to be a principle, governing its construction.

8. It is obvious that in this case the decree was amended because for some reason the decree-holder found it difficult to execute it. It may be that he might have asked the executing Court to execute the decree as it stood because the property of which possession was to be handed over could be found out without the amendments which were ultimately made. But the decree-holder did not follow that procedure. It was perfectly reasonable for him to say that if he found any defect in execution he would get the decree amended so as to render it easier for him to execute the decree. I do not understand the learned advocate who appears for him to say that if the decree-holder had made the application for amendment of the decree before execution was barred, the amendment could possibly have been questioned, but what is more important is that the starting point of limitation must in such a case be the date upon which the amendment was made, I do not understand how that can possibly be questioned in the case of a decree which was amended before three years from the date it was passed had elapsed, because no question of reviving a time-barred decree arises in such a case and the starting point of limitation must necessarily be the date upon which the decree is amended unless it can possibly be said that there was as a matter of fact no amendment or no amendment affecting execution by the darkhastdar. If, therefore, the plaintiff in this case is to be defeated, it must be because of a principle like the one which was relied upon and which is embodied in the extract of the judgment of the Madras High Court which I have referred to above. But, as I have already mentioned, there is no such principle which can be taken to govern the construction of Article 182 of the Indian Limitation Act. I therefore agree with the order proposed by my learned brother.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //