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Faqir Chand and anr. Vs. Kundan Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1932All351
AppellantFaqir Chand and anr.
RespondentKundan Singh and ors.
Excerpt:
.....as it states 'not provided for',an expression which applies very well to article 183 which deals with decrees of high courts or orders of his majesty in council. the words 'provider for' do not apply so clearly to section 48, as section 48 does not deal with decrees of courts to which article 182 does not apply. i fail to see how the defendants should be held to blame if the decree does not correctly represent the judgment unless he has been a party to inducing the error in the decree......intention of the legislature that that period of 12 years should be final, and that within that period a decree-holder should amend his decree, and obtain all consequent remedies. if a decree-holder neglects to amend his decree within a sufficient period before the expiry of 12 years to allow him to obtain his remedy by execution, then he has only himself to blame.4. in narsingrao v. bando krishna [1918] 42 bom. 309, it has been laid down on p. 328 as follows:it is the duty of a successful plaintiff to see that the decree is drawn up correctly against the defendant's. i fail to see how the defendants should be held to blame if the decree does not correctly represent the judgment unless he has been a party to inducing the error in the decree. the subordinate judge cannot repeat his.....
Judgment:

Bennet, J.

1. This is an appeal from an order in execution dismissing an application of the decree-holder for execution. The application has been dismissed by the lower Court on two grounds, firstly, that the execution was barred by time, being more than 12 years from the date of the decree; and secondly that the decree-holder was not entitled to execution against the property which is in the present application for execution. (His Lordship then, discussed facts with regard to the second point and proceeded) We now proceed to consider the merits of the question of limitation. There are two provisions of law dealing with limitation for applications for execution. One of these is contained in Section 48, Civil P.C. and the other is contained in Article 182, Schedule 1, Limitation Act. Article 182 states that a period of three years is allowed, time beginning to run from the date of amendment of a decree where the decree has been amended. Learned Counsel contends that his client should receive the benefit of this provision, but Article 182 states in the Col. 1 as follows:

For the execution of a decree or order of any civil Court not provided for by Article 183 or by Section 48, Civil P.C. 1908.

2. Now the language used is somewhat peculiar, as it states 'not provided for', an expression which applies very well to Article 183 which deals with decrees of High Courts or orders of His Majesty in Council. The words 'provider for' do not apply so clearly to Section 48, as Section 48 does not deal with decrees of Courts to which Article 182 does not apply. But the meaning of the words provided for, in our opinion, is that where execution is barred by Section 48, Civil P.C. execution cannot be allowed under Article 182, Schedule 1, Limitation Act. In other words Article 182 is subject to the provisions of Section 48, Civil P.C.

3. The present Limitation Act is Act. 9 of 1908, and by that Act the provisions in question in regard to amendment of decree was introduced, and it did not exist in the previous Limitation Act of 1877. In the same year of 1908, the Civil P.C., at present in force was enacted. Now no change was made in Section 48, Civil P.C. providing for the extension of the period of 12 years in that section from the date of the amendment of a decree. We consider that the legislature advisedly omitted that provision for extension from Section 48, and that the omission was not accidental. In our opinion the effect of the omission is that an amendment of a decree does not give a new date for starting a period of limitation, if the application for execution is beyond the period of 12 years allowed by Section 48, that is that the period of 12 years under Section 48 is final and cannot be extended by any amendment of the decree, whether that amendment is made before the expiry of the period of 12 years or whether that amendment is made after the expiry of the period of 12 years. The reason why no amendment was made in Section 48 is that probably the greater period of 12 years is allowed by that section, and it is probably the intention of the legislature that that period of 12 years should be final, and that within that period a decree-holder should amend his decree, and obtain all consequent remedies. If a decree-holder neglects to amend his decree within a sufficient period before the expiry of 12 years to allow him to obtain his remedy by execution, then he has only himself to blame.

4. In Narsingrao v. Bando Krishna [1918] 42 Bom. 309, it has been laid down on p. 328 as follows:

It is the duty of a successful plaintiff to see that the decree is drawn up correctly against the defendant's. I fail to see how the defendants should be held to blame if the decree does not correctly represent the judgment unless he has been a party to inducing the error in the decree. The Subordinate Judge cannot repeat his judgment so as to give a fresh starting point for limitation. I therefore think that 17th November 1897 (the date of the unamended decree) must be taken as the date of the decree sought to be executed.

5. We also note that a decree bears the date of the original judgment, and an amendment does alter the date of the decree.

6. Learned Counsel refers to a ruling of a single Judge of the Patna High Court in Baldeo Shukul v. Syed Yusuf [1921] 60 I.C. 318. In that ruling it was laid down that where a decree was amended the date of amendment is the date of the decree within the meaning of Section 48, Civil P.C. An application for execution in that case was made more than 12 years after the date of the original decree, but within 12 years of the date of an amended decree. The Court held as follows:

But it has been argued before me that, in so far as Section 48 does not embody the provisions of Article 182, time must begin to run from the date of the decree. I am unable to agree with this contention.

7. The learned Judge did not refer in his judgment to the fact that Article 182 specially excludes cases provided for by Section 48, Civil P.C. and apparently this fact was not brought to his notice. We therefore consider that the ruling in question is no authority for the issue in this case, because the ruling does not deal with the point which we consider is vital to the question.

8. Accordingly we hold that the present application in execution having been made more than 12 years after the date of the final decree is barred by limitation under Section 48, Civil P.C. We therefore dismiss this appeal with costs including counsels' fees in this Court on the higher scale.


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