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Pheku Vs. Gulab Das and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAllahabad High Court
Decided On
Case NumberEx. Second Appeal No. 866 of 1958
Judge
Reported inAIR1960All596
ActsCode of Civil Procedure (CPC) , 1908 - Sections 48; Uttar Pradesh Debt Redemption Act, 1940 - Sections 8 and 8(2)
AppellantPheku
RespondentGulab Das and ors.
Appellant AdvocateJ. Swarup and ;S.D. Agarwala, Advs.
Respondent AdvocateKrishna Shanker, Adv.
DispositionAppeal dismissed
Excerpt:
.....- limitation starts from date of new decree. (ii) civil - amendment of decree - section 8 of debt redemption act, 1940 - amended decree shall bear the date of original decree - proceedings initiated not for amendment but for rehearing of suit on new defence. - - it is interesting to note that his first case is the same which is relied upon by learned counsel for the other side air1950all713 .in that case kidwai, j. 12. in my opinion, the controversy would not have arisen but for the unfortunate use of the phrase 'amendment of the decree'.the word 'amendment' does not mean that the original decree continues with a slight amendment like the one authorised by section 152 c. it is noteworthy that the benefit of the debt redemption act was conferred on judgment-debtors against whom..........of decrees should be counted, in the case of a decree amended under section 8 of the u. p. debt redemption act, from the date of the original or the amended decree. the appeal has been filed by the judgment-debtor who contended before the execution court that a decree-holder's application for execution was time barred if the period of limitation was counted from the date of the original decree. the objection was allowed. on appeal by the decree-holder the learned temporary civil judge, varanasi held that limitation commenced from the date of the amended decree. he allowed the appeal and dismissed the appellant's objection. aggrieved by this decision the judgment-debtor has come to this court in second appeal. 2. a very brief narration or facts is necessary for a proper.....
Judgment:

S.S. Dhavan, J.

1. This second appeal raises the question whether the twelve years' limitation for the execution of decrees should be counted, in the case of a decree amended under Section 8 of the U. P. Debt Redemption Act, from the date of the original or the amended decree. The appeal has been filed by the judgment-debtor who contended before the execution Court that a decree-holder's application for execution was time barred if the period of limitation was counted from the date of the original decree. The objection was allowed. On appeal by the decree-holder the learned Temporary Civil Judge, Varanasi held that limitation commenced from the date of the amended decree. He allowed the appeal and dismissed the appellant's objection. Aggrieved by this decision the judgment-debtor has come to this Court in second appeal.

2. A very brief narration or facts is necessary for a proper understanding of the legal controversy between the parties. On 16-4-1935, the respondent Gulab Das filed a suit against the defendant appellant under Order 34 Rule 4 C. P. C., on the basis of a mortgage deed. He claimed a sum of Rs. 1042-8-0 under the mortgage and sought to realise it by the sale of the mortgaged property. On 30-11-1935 the suit was decreed for Rs. 900/ and proportionate costs. He subsequently applied for a final decree which was passed on 14-8-1937. In 1940 the U. P. Debt Redemption Act was passed. It permitted agriculturists and workmen to apply for the reduction of decrees already passed against them. Taking advantage of the provisions of the new. Act, the judgment-debtor applied for the reduction of the amount under the decree. His application was opposed by the decree-holder who contended, inter alia, that the judgment-debtor was not a workman.

However, on 29-8-1942, after hearing parties, the Court allowed the application and reduced the amount of the decree to Rs. 462-9-6. The decree-holder filed an appeal on 28-1-1943 with the result that the amended decree was confirmed on that date. On 24-1-1955 that is, not quite 12 years after the dismissal of his appeal the decree-holder filed his application for execution of the amended decree. It is this application which has caused the present controversy between the parties. The judgment-debtor objected, that the application was time barred. He contended that the amended decree was really the old decree with the amount reduced and, therefore, the limitation must be counted from the date of the original decree. The decree-holder, on the other hand, contended that the original decree was replaced by 3 new decree and that, therefore, the limitation would commence from the date of the fresh decree. As stated above, the judgment-debtor was successful in the first Court and the decree-holder in the second. The matter has now come to this Court in Second Appeal.

3. It is common ground that if the limitation is to commence from the date of the original decree--14-8-1937--the present application for execution is time barred, but if it is to begin from the date of the amended decree --28-1-1943-- it is within time.

4. I heard learned counsel for the appellant and the respondent at considerable length and a number of authorities were cited on both sides. It was conceded that there was no decision of this Court directly on the point in controversy in this appeal though there have been observations in various judgments in the past which were relied upon by learned counsel as throwing light on the question.

5. The sheet anchor of the case of the judgment-debtor is Section 8(2) of the Debt Redemption Act which provides that 'a decree amended under the provisions of Sub-section (1) shall be deemed to bear the date of the original decree'. Mr. S. D. Agarwala, who argued the case for the judgment-debtor in appeal with ability contended that there is nothing in this sub-section to show that its scope was intended by the legislature to be limited. He conceded that this provision introduced a fiction by which the amended decree is ante dated and shall be deemed to bear the earlier date of the original decree. But he argued that the date fixed by this provision is none-the-less effective because it is fictitious. According to him, full effect must be given to this sub-section otherwise it will become redundant Or ineffective,

6. Before deciding this question, I consider it desirable to discuss the effect of various observations made in cases already decided. Mr. Agarwala relied upon an observation of Ghulam Hasan, J. in Salikram v. Ram Sarup, AIR 1945 Oudh 251 at p. 254 (FB), which runs thus:

'Under Sub-section (2) of Section 8 the amended decree is not to be regarded as a fresh decree passed as it were under the Debt Redemption Act but the original decree bearing the same date with the only difference that it is reduced in amount.'

7. The question before the Full Bench in that case was whether, in a case where a decree passed before 1-1-1941 is sought to be amended under Section 8 of the U. P. Debt Redemption Act, the order passed by the Court amending or refusing to amend the decree will be appealable in the same way as the original decree would be. It was held that an order refusing to amend a decree under Section 8 is not an order relating to the execution, discharge or satisfaction of the decree and is, therefore, not appealable under Section 47, C.P.C. The learned Judges had no occasion to consider the question which arises in the present appeal and, therefore, this observation is in the nature of an obiter dictum. In Badri Prasad v. Shankar Lall : AIR1950All713 , Ghullam, Hasan, J., quoted with approval an earlier decision of the Oudh Chief Court in which it was held

'that the amended decree was not a fresh decree but the original decree bearing the same date with the only difference that it was reduced in amount.'

The Full Bench was considering the question whether an order refusing to amend a decree under Section 8 is or is not an order relating to the execution or discharge of the decree. It held, by a majority of three to two, that it was not such an order and, therefore, not appealable under Section 47 C. P. C. Here again, it most be noted that the precise question in the present controversy was neither raised nor considered by the Bench. In the present case I have to consider the effect, not o an order refusing to amend, but one sanctioning the amendment. The difference between the two orders is fundamental, for a refusal preserves the status quo while an amendment effects a change in the mutual rights and liabilities of the decree-holder and the judgment-debtor.

In Jhamman Lal v. Surat Singb , the Oudh Chief Court had to consider the effect of Sub-section (2) of Section 30 of the U. P. Agriculturists Relief Act the language of which is somewhat similar to that of Section 8 (2) of the Debt Redemption Act. It provides that a decree amended in accordance with Section 30 of the Agriculturists Relief Act 'shall be deemed to bear the date of the original decree.' In considering the effect of this soction, Srivastava, Acting Chief Justice, observed, 'It would be enough to say that the object of the sub-section appears simply to be that the decree-holder should not be allowed to claim a fresh period of limitation from the date of the amendment under Article 182 (4) Schedule 1 to the Limitation Act.'

This remark was made en passant in considering a question referred to the Full Bench which had nothing to do with the controversy which arises in the present case.

8. I shall now consider the observations in other cases relied upon by Mr. Krishna Shankar, who argued the case with ability on behalf of the decree-holder. It is interesting to note that his first case is the same which is relied upon by learned counsel for the other side : AIR1950All713 . In that case Kidwai, J., observed:

'If the Court to which the application is made for amendment of the decree allows that application and the decree is amended, then an appeal will He from that amended decree, not because there is a decision under Section 47 C. P. C., but because the original decree has been replaced by a new decree and consequently the new decree may be challenged in appeal under Section 96 C. P. C., if that section is applicable to the original decree.'

Mr. Krishna Shankar contended that this observation shows that according to the view of Kidwai, J. the amendment of a decree under Section 8 of the Debt Redemption Act results in a new decree. The second case cited by learned counsel for the decree-holder is Manmohan Lall v. Raj Kumar : AIR1946All89 . The question before the Full Bench in that case was whether, in any appeal from an order amending the decree under Section 8, the limitation runs from the date of the original decree or the amended decree. The Full Bench were faced with the patent fact that, if a right of appeal existed it would be rendered illusory if the limitation was to be counted from, the date of the original decree for the decision in the proceedings under Section 8 would in most cases be made after the period of limitation had expired. It was argued on behalf of the judgment-debtor that Clause (2) of Section 8 had impliedly taken away the right of appeal under Section 96 C. P. C. Rejecting this argument, Iqbal Ahmad, C. J., observed :

'It was suggested that, in view of this provision, a party aggrieved by the amended decree would find it impossible to appeal against the amended decree as the limitation to file an appeal from the date of the original decree would, in most cases, have expired. It was, therefore, maintained that the Legislature could not have intended to allow a right of appeal against a deeree amended under Section 8 and it was suggested that Clause (2) of Section 8 was repugnant to Section 96 of the Code. I am not impressed by this argument. All that Clause (2) provides is that the amended decree 'shall be deemed to bear the date of the original decree' and not that the amended decree shall actually bear the date of the original decree. It is inevitable that the date appended to the amended decree will be the date on which the original decree is amended and for the purposes of limitation governing appeals, the actual date of the decree and not the date that the decree is 'deemed to bear' is the relevant date. To put the matter in another way. In view of the provisions of Clause (2) of Section 8 the notional date of the amended decree is the date of the original decree but in fact the actual date of the amended decree will be the date on which the decree was amended and the limitation for appeal will be computed from the actual date that the amended decree bears.'

In the same case Allsop, J. observed,

'Under Section 96 C. P. C. an appeal lies from every decree. In Section 104, provision is made for appeals from orders, but the orders to which this section refers are orders under various provisions of the C. P. C. itself or the rules made under the Code. Looking at the definitions it seems to me that a direction by a Judge that a decree should be amended under the provisions of Sections 8 and 9, U- P. Debt Redemption Act, is, properly speaking, a decree and the reasons given for the amendment and the manner in which it would be made is a judgment. There can be no doubt that it is a matter of controversy in the suit itself in which the amended decree is to be passed what sum of money is due from the defendant to the plaintiff. When a Court amends a decree, it conclusively determines the rights of the parties with regard to this mater.' Yorke, J. observed,

'It seems to me that even though there has already been a decree in the suit none-the-less an application for amendment of a decree by application of the provisions of the Debt Redemption Act, results in a fresh decree conclusively determining the rights of the parties with regard to all or any of the matters in controversy in the suit and therefore comes within the scope of Section 96 of the Code.' He also considered the effect and scope of Sub-section (2) of See. 8 (which introduces the fiction that the date of the amended decree shall be the same as that of the original decree) and observed,

'In this connection I am not much impressed by argument based on the provisions of Sub-section (2) of Section 8, Debt Redemption Act, which provides that a decree amended under the provisions of Sub-section (1) shall be deemed to bear the date of the original decree. Such a provision was obviously necessary because without such provision a doubt would exist as to how future interest could be calculated under an amended decree, and too much should not be read into it.'

The last case relied upon by Mr. Krishna Shanker is Mangnoo Singh v. Bindeshri, AIR 1943 Oudh 412 in which Ghulam Hasan, J. observed that when a decree has been amended under Section 5, U. P. Agriculturists' Relief Act, the period of 12 years provided in Section 48 runs from the date of the amended and not the original decree. Learned counsel stated that he was relying on this observation as it was made by a learned Judge whose subsequent observation in AIR 1945 Oudh 251 (FB) was relied upon bv learned counsel for the appellant. Mr. Krishna Shankar argued, with some force, that whatever be the effect of the observations of Ghulam Hasan, J. in the later case, the interpretation put upon them by counsel for the appellant cannot be reconciled with his clear observation in the earlier case.

Mr. Krishna Shankar conceded that the statutes considered in these two judgments were different but, according to him, the point was the same namely the question of commencement of limitation after a decree has been amended. According to learned counsel it would make no difference whether the amendment is under the Debt Redemption Act or the Agriculturists' Relief Act. If the amended decree is treated as a new decree, the result would be the same in each case and the limitation would run from the date of the fresh decree.

9. In my opinion, the matter can be disposed of in this way. The U. P. Debt Redemption Act, particularly Clause (2) of Section 8, is not happily worded. In providing that a decree amended under Section 8 shall be deemed to bear the date of the Original decree, the Legislature did not specify the purpose for which this fiction was introduced. Taking advantage of this omission, Mr. Agarwala argued, quite logically, that the Legislature intended this date to be effective for every conceivable purpose. I have to consider whether an interpretation which gives an unlimited scope to this fiction is justified.

10. It will be noted that it has already been held by a Full Bench of this Court that, for the purpose of computing limitation in appeal, this sub-section will be ignored and the period of limitation shall be counted from the actual date on which the amended decree was passed. Thus, this Court has already accepted the principle that the scope of this fiction is not unlimited.

11. I have to consider whether, for the purpose of computing limitation under Section 48 C. P. C. the starting point must be the fictitious date introduced by this sub-section or the actual date of the amended decree.

12. In my opinion, the controversy would not have arisen but for the unfortunate use of the phrase 'amendment of the decree'. The word 'amendment' does not mean that the original decree continues with a slight amendment like the one authorised by Section 152 C. P. C. A glance at the two sections will reveal that there is a fundamental difference between the amendment authorised by Section 152 C. P. C. and the one effected by Section 8 of the Debt Redemption Act. In the former case, there is no adjudication of any controversy between the parties, and the amendment merely corrects clerical or arithmetical mistakes arising from any accidental slip or omission. In the latter cose, on the other hand, there must be an adjudication of a new issue before the decree can be amended. The Judgment-debtor has to plead that he is an agriculturist or a workman entitled to the benefits conferred on these two classes by the Debt Redemption Act. The decree-holder has the right to contest this claim. The court has to hear the parties and permit them to lead evidence. It must give a finding that the judgment-debtor is or is not an agriculturist or a workman. Its decision is appealable.

Therefore, the judgment-debtor has been virtually given the right to advance a new defence which, if successful, will result in a dismissal of a part of the decree-holder's claim. The fact that this defence is permitted to be raised even after the passing of the decree does not alter the situation tbat the judgment-debtor really seeks to amend his original written statement. It is noteworthy that the benefit of the Debt Redemption Act was conferred on judgment-debtors against whom suits were pending as well as those against whom decrees had been passed already. In pending suits the defendant was permitted to raise a new defence based on his status as a workman or agriculturist and thus plead, in the alternative, that even it the plaintiff's claim was found to be true, he was not entitled to the full amount claimed by him in view of the Debt Redemption Act. The result of this defence, if successful, could only be the dismissal of the plaintiff's suit in part.

To take a concrete example, the plaintiff in the present case filed a suit for the recovery of Rs. 1042/8/-. If the suit had been pending when the Debt Redemption Act became effective, the judgment-debtor, instead of applying for the amendment of the decree, would have amended his defence and added a plea that, in any case, the plaintiff was not entitled to more than Rs. 462/9/6. If he had succeeded in proving that he was a workman, the plaintiff's suit would have been allowed only for Rs. 462/9/6 and dismissed as regards the balance of Rs. 5079/15/6. Precisely the same kind of defence is raised by a judgment debtor after a decree has been passed against him.

Therefore, in my opinion the proceedings initiated by an application under Section 8 of the Debt Redemption Act are not really for the amendment of the decree but for the rehearing of the suit on the basis of a new defence. It is true that the issues already decided cannot be reopened in the proceedings but a new issue is raised and adjudicated upon.

13. Under these circumstances, it is difficult to resist the conclusion that the so-called amendment of the decree really amounts to the passing of a new decree based upon an adjudication of a new issue. A decree has been defined in the Code of Civil Procedure as the formal expression of an adjudication which conclusively determines the rights of the parties with regard to any matter in controversy in the suit. Therefore, what is termed as an 'amendment' of the old decree is really the formal expression of a new' adjudication. When the decree-holder seeks to realise the fruits of this new adjudication, or in other words, seeks to execute the new decree, the limitation of 12 years will be counted from the date of the new decree. For these reasons I hold that the view of the learned Judge in appeal was correct and the objection of the judgment-debtor was rightly dismissed.

14. The appeal fails and is dismissed with costs. Leave to appeal is refused.


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