Skip to content


Tarsi Ram Vs. Man Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Judge
Reported in(1886)ILR8All492
AppellantTarsi Ram
RespondentMan Singh and ors.
Excerpt:
execution of decree - adjudication that execution is barred by limitation--finality of order--civil procedure code, section 206--amendment of decree--act xv of 1877 (limitation act), schedule ii, nos. 178, 179. - - 875 and 876. those cases furnish good illustrations of the manner in which the power conferred by the section may be misapplied in the absence of more definite provisions prescribing rules for guidance......on the 12th may 1884, to the court of first instance, to amend the decree under section 206 of the civil procedure code, and the application was granted on the 6th december 1884.2. the present application was made on the 2nd april 1885, for execution of the amended decree, on the contention that limitation should be calculated from the date of the amendment, but both the lower courts have disallowed the application.3. i agree with my learned brother oldfield in holding that the lower courts acted rightly in rejecting the application. irrespective of the merits of the amendment itself, i hold that such amendment could neither revive the decree nor furnish a fresh starting point of limitation, whilst there is of course the further consideration that the question of the decree being barred.....
Judgment:

Mahmood, J.

1. I am of the same opinion. The decree sought to be executed was passed on the 2nd April 1880, and was put into execution by an application dated the 19th February 1884; but execution was disallowed by an order dated the 26th March 1884, on the ground that it was barred by limitation, and that order was upheld by the Court of Appeal on the 25th March 1885. The adjudication thus became conclusive and final within the principle of the rulings of the Privy Council in Mungul Pershad v. Grija Kant Lahiri I.L.R. 8 Cal. 51 : L.R. 8 Ind. Ap. 123 and Ram Krrpal v. Rup Kuari I.L.R. 6 All. 269; L. R. 11 Ind. Ap. 37. But in the meantime the appellant-decree-holder, during the pendency of his appeal, made an application, on the 12th May 1884, to the Court of First Instance, to amend the decree under Section 206 of the Civil Procedure Code, and the application was granted on the 6th December 1884.

2. The present application was made on the 2nd April 1885, for execution of the amended decree, on the contention that limitation should be calculated from the date of the amendment, but both the lower Courts have disallowed the application.

3. I agree with my learned brother Oldfield in holding that the lower Courts acted rightly in rejecting the application. Irrespective of the merits of the amendment itself, I hold that such amendment could neither revive the decree nor furnish a fresh starting point of limitation, whilst there is of course the further consideration that the question of the decree being barred had passed into rem judicatum, as I have already pointed out, with reference to the Privy Council rulings.

4. I now wish to add that the provisions of the last paragraph of Section 206, Civil Procedure Code, have given rise to some difficulty and doubt, and I cannot help feeling that it would have been conducive to clearness, and accuracy, and uniformity of procedure in the Mufassal Courts, if the Legislature had thought fit to frame the paragraph as a separtate section, and to have introduced therein definite restriction and limits as to the time within which, and the stage when, the power of amending decrees might be exercised. For instance, if a decree has already become the subject of appeal, I do not think the first Court should amend it under Section 206, for the Full Bench of this Court in Shohrat Singh v. Bridgman I.L.R. 4 All. 376 has held that the decree of the Appellate Court is the only decree susceptible of execution, and the specifications of the decrees of the lower Courts as such may not be referred to and applied by the Court executing such decree. Again, in connection with this same section, I may refer to what I said in Raghunath Das v. Raj Kumar I.L.R. 7 All. 276 and also in Surta v. Ganga I.L.R. 7 All. 411 in both of which cases my judgments were upheld and approved by the Full Bench of this Court I.L.R. 7 All. pp. 875 and 876. Those cases furnish good illustrations of the manner in which the power conferred by the section may be misapplied in the absence of more definite provisions prescribing rules for guidance. I may perhaps also add that the section should also contain an express provision to say that when a decree-holder has so far accepted a decree as framed as to put it into execution, no amendment should be allowed, and the reason should be that the proper stage for such amendment is passed. I may here quote what Markby, J., said in Goluck Chunder Mussant v. Gunga Narain Mussant 20 W.R. 111: 'It is the duty of the parties, or rather of their pleaders, when they obtain a decree, to see that it is drawn up in the proper form, and it has been ordered by a circular order of this Court of the 19th July 1867 (8 W.R. Civ. Cir. 2), that the Judges should obtain the signatures of the pleaders before the decree is finally singned. If the parties chose to allow so long a time as that allowed in this case to elapse, before they take any steps upon the decree, without taking any precaution to see that the decree is properly drawn up, it seems to us that it may be fairly presumed that they acquiesced in the decree, and that no alteration ought to be made subsequently.' The rule laid down by Couch, C.J., in Prince Mahomed Ruhimood-din v. Babu Beer Protab Suhai 18 W.R. 303 has almost a stronger tendency in the same direction.

5. Again, a Division Bench of this Court, in Gay a Prasad v. Sikri Prasad I.L.R. 4 All. 23 held that an application for an amendment of decree under Section 206, Civil Procedure Code, was governed by three years' limitation under Article 178, Schedule ii of the Limitation Act. But I respectfully doubted the accuracy of the rule in the case of Raghunath Das, to which I have already referred; and my view was supported by the principle upon which the rulings of the other High Courts proceed--vide Robarts v. Harrison I.L.R. 7 Cal. 333 Kylas Goundan v. Ramasami Ayyan I.L.R. 4 Mad. 172 Vithal Janardan v. Rakmi I.L.R. 6 Bom. 586.

6. These observations may possibly prove of some service to the Legislature when considering the question of the amendment of the Civil Procedure Code.


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