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Thanuvan Appukuttan Vs. P.N. Gopala Pillai and anr. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKerala High Court
Decided On
Case NumberSecond Appeal No. 888 of 1964
Judge
Reported inAIR1969Ker183
ActsLimitation Act, 1908 - Sections 5 - Schedule - Article 156; Code of Civil Procedure (CPC) , 1908 - Sections 151 and 152 - Order 20, Rule 7; Limitation Act, 1963 - Schedule - Article 116
AppellantThanuvan Appukuttan
RespondentP.N. Gopala Pillai and anr.
Appellant Advocate G. Viswanatha Iyer and; S. Subramania Sarma, Advs.
Respondent Advocate A.S. Narayanan Asan and; V. Parameswaran Pillai, Advs.
DispositionAppeal dismissed
Cases Referred and Venkatarao v. Sathiraju
Excerpt:
.....the appellant to calculate limitation from the date of the amendment rather than from the date of the original..........if there is no alteration in the date of the decree it will be a fit case for excusing delay under section 5 of the limitation act. i am therefore of the view that when a decree is amended under section 151 or section 152, time does not run from the date of amendment for filing the appeal13. in the case before me the appeal does not relate to the portion of the decree amended and it is directed against the decree which remains unaffected by the amendment the appellant cannot also take advantage of the decision, to air 1960 cal 258.14. in these circumstances i hold thatthe second appeal is barred by limitationand dismiss the same. since the appealis barred, the memorandum of cross-objection filed by the plaintiff is not maintainable and it is also dismissed, i makeno order as to costs.
Judgment:

T.S. Krishnamoorthy Iyer, J.

1. This appeal by the defendant arises out of a suit for recovery of the plaint building with arrears of rent at the rate of one rupee per month from October, 1962 on the basis of an oral entrustment of the building by the plaintiff to the defendant. The land along with the plaint building was sold in revenue auction evidenced by Ext. P4 on 11-7-1116 and it was delivered to the auction-purchaser on 11-10-1116 evidenced by Ext. P5. The auction-purchaser sold his rights to Ammukutty Amma in 1122 evidenced by Ext. P6 and she in turn executed Ext. P1 sale deed in favour of the plaintiff on 27-9-1951.

2. The main contention of the defendant is that the building was contructed by him and it was not sold in revenue auction. This contention was concurrently overruled by the courts below. But they disallowed the claim of the plaintiff for recovery of the building because of the finding that the defendant is a kudikidappukaran. The plaintiff's claim for arrears of rent was decreed. The defendant challenges the correctness of the decrees for rent in the second appeal. A memorandum of cross-objection has been filed by the plaintiff objecting to the finding that the defendant is a kudikidappukaran within the meaning of Act 7 of 1963. The learned counsel for the respondent has filed C. M. P. 2055 of 1965 in the second appeal stating that the appeal is barred by limitation and has to be dismissed on that ground. The High Court office proceeded to register the appeal under the belief that it was filed in time. In view of the objection raised by the respondent it is necessary to consider the question whether the second appeal was presented before this Court within the period of limitation.

3. The decree and judgment of the lower appellate court are dated 21-12-1963 and the time for filing the appeal expired on 29-3-1964. The application for copies of judgment and decree of the lower court was made there only on 4-6-1964 and the second appeal was filed on 3-8-1964. In the memorandum of appeal it is stated that the judgment and decree of the lower appellate court were amended by the order dated 16-3-1964. passed in I. A. 241 of 1964 filed in the appeal and the period of limitation for filing the appeal will run only from 16-3-1964 as the second appeal is filed against the amended decree and judgment and there is therefore no delay in filing the second appeal. The decretal portion of the judgment of the lower appellate court before it was amended read as follows:--

'In the result, in allowing the appeal in part, the suit so far as it relates to the recovery of the building together with the easements attached thereto is hereby stayed under Act VII of 1963 and in other respects, the appeal is dismissed permitting the plaintiff to recover arrears of rent in accordance with law. Both parties will suffer the costs of the appeal.'

4. The plaintiff filed I. A. 241 dated 22-2-1964 in the appeal for correcting the judgment and the decree of the Appellate Court. The mistake in the judgment was that it allowed recovery of possession of the property in respect of which the plaintiff's title and possession was declared. Even in the plaint, the plaintiff prayed for recovery of only the building and regarding the land he only prayed for declaration of title and possession. The petition for correction was therefore allowed on 16-3-1964 by deleting the words in the judgment 'that the plaintiff is entitled to recover possession of the plaint property'. The effect of the amendment was that the provision for recovery of possession of the plaint property was vacated. This is only in favour of the defendant and the defendant is not in any way prejudiced by the amendment.

5. Under Article 156 of the Indian Limitation Act IX of (1908), or under Article 116 of the Limitation Act, 1963 the period of limitation for filing an appeal in the High Court commences from the date of the decree or order. Order 20, Rule 7, of the Code of Civil Procedure provides that 'the decree shall bear date the day on which the judgment was pronounced'. The date of the decree is therefore the date of the judgment whatever may be the date on which the decree is signed by the Judge. Any amendment made in. a decree must relate back to the date of the decree. There is no decree bearing the date on which it is amended. In Pydel v. Chathappan, (1891) ILR 14 Mad 150 at p. 152 their Lordships of the Madras High Court observed:

'When an Instrument is amended so as to express the real intention which it was intended to express, but which it did not completely express, the transac-tion is not in substance varied, but its inaccurate description is only rectified.'

6. In view of the above principle, the amendment to a decree does not bring about any change in the date of the decree and the time for filing an appeal against the decree therefore runs from the date of the decree and not from the date on which it is amended. If so the contention of the learned Counsel for the appellant cannot be accepted.

7. On behalf of the appellant reliance was made to the decisions of the Calcutta High Court in Aditya Kumar v. Abinash Chandra, AIR 1931 Cal 323 and Souda-mini v. Nabalak Mia, AIR 1931 Cal 578 to support his contention. In AIR 1931 Cal 323 the decree was modified in review and it was held that the modified decree is the final decree for the purposes of an appeal. It is not a case of amendment of the decree under Section 151 or Section 152, C. P. C. The said decision therefore cannot govern the case before us. The judgment in AIR 1931 Cal 323 was by Suhrawardy, J., and the same learned Judge sitting with Jack, J., in AIR 1931 Cal 578 observed thus;

'I considered a similar question and gave my view fully upon this point in the case of AIR 1931 Cal 323=131 Ind Cas 253. It was held by my learned brother Costello, J., and myself that if a decree is amended either by way of review or under Section 206 (Section 152 of the present Code) the decree to be appealed against is the amended decree and no appeal should therefore lie from the original decree.'

Jack J. did not express any view on the question and rested his decision holding that there was sufficient cause under Section 5 of the Limitation Act to excuse the delay in filing the appeal in the lower appellate court.

8. It is not correct to say that in AIR 1931 Cal 323 it was decided that when a decree is amended under Section 152, C. P. C., the time for filing the appeal runs from the date of the order amending the decree. I am not able to find any principle stated in AIR 1931 Cal 578 for the conclusion reached.

9. A similar question was considered by the Calcutta High Court in Tincowri v. Nanigopal, AIR 1960 Cal 258 where their Lordships dissented from the view taken in AIR 1931 Cal 578 and stated their conclusions thus:

'(a) If the decree is amended on an application under Section 151 or Section 152 and the appeal is confined to the amended portion only, the starting point would be the date of the amendment:

(b) In such a case, if the appeal is directed against the decree as it stood prior to the amendment, the starting point would be the date of the original decree; and

(c) In the case of a re-hearing on a successful application for review, the starting point would always be the date of the new decree drawn up and signed after the review, whether the original decree is modified or reaffirmed.'

10. The decisions of the Madras High Court in Janikamma v. V. Rajagopala, AIR 1945 Mad 62 and Venkatarao v. Sathiraju, AIR 1946 Mad 291 are cases where the decrees against which appeals were filed were amended not under Section 151 or Section 152 of the Code of Civil Procedure but under the Madras Act IV of 1938. In AIR 1945 Mad 62 it was observed:

'The 'amendment' under Section 19 of the Act, (i.e. Madras Act IV of 1938), however, brought about a vital alteration, as we have explained above, by substantially reducing the relief originally granted to her, and this alteration was based on the adverse finding which previously was not prejudicial to her. It would be startling if, in such circumstances, the appeal were to be held barred by limitation long before the appellant's right of appeal came into being. Such a construction of the phrase 'the date of the decree' in Article 156 cannot be accepted. The article clearly presupposes that the remedy by way of appeal has become ' available to the appellant, and the date of the decree can only mean the date when the decree became appealable for the party concerned: cf. 54 Mad 455=(AIR 1931 Mad 149). It follows that the appeal is not barred by time.

11. In AIR 1946 Mad 291 their Lordships observed:

'If the amendment is not the reason for the grievance of the appellant, there is clearly no reason for allowing the appellant to calculate limitation from the date of the amendment rather than from the date of the original decree; but if the appellant was not aggrieved by the original decree, but is aggrieved by the decree as amended, logically and equitably time for the appeal should run from the date of the decree as amended.'

12. The decisions of the Madras High Court are not helpful in cases of amendment of decrees under Section 151 or Section 152 of the Code. The amendment of a decree under Section 151 or Section 152 does not alter its date and if so under the relevant article time runs from the date of the decree. Even if the appeal is against that portion of the decree that is amended, if there is no alteration in the date of the decree it will be a fit case for excusing delay under Section 5 of the Limitation Act. I am therefore of the view that when a decree is amended under Section 151 or Section 152, time does not run from the date of amendment for filing the appeal

13. In the case before me the appeal does not relate to the portion of the decree amended and it is directed against the decree which remains unaffected by the amendment The appellant cannot also take advantage of the decision, to AIR 1960 Cal 258.

14. In these circumstances I hold thatthe second appeal is barred by limitationand dismiss the same. Since the appealis barred, the memorandum of cross-objection filed by the plaintiff is not maintainable and it is also dismissed, I makeno order as to costs.


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