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Paladugu Veera Ramachandra Rao Vs. Paladugu Parasuramayya and anr. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai
Decided On
Reported inAIR1940Mad127; (1940)1MLJ235
AppellantPaladugu Veera Ramachandra Rao
RespondentPaladugu Parasuramayya and anr.
Cases ReferredIn Faqir Chand v. Kundan Singh I.L.R.
Excerpt:
- - this objection was well founded and the attachment was raised. in as much as article 182 clearly leaves the provisions of section 48 untouched there can be no execution of a decree governed by section 48 when twelve years have passed from the date of the i decree, amendment or no amendment......said that a court may grant and may be obliged to grant an amendment even after the period of twelve years fixed by section 48 of the code of civil procedure and where an amendment is so granted the order would be rendered futile and barren unless section 48 is understood as permitting the twelve years' period to be calculated from the date of the amendment. this may be an anamoly but the remedy is in the hands of the legislature. when the language of the statute is clear we cannot refuse to give effect to it on a consideration of this kind.somayya, j.14. i agree with my lord the chief justice.
Judgment:

Alfred Henry Lionel Leach, C.J.

1. This appeal raises a question of limitation. On the 9th March, 1922, the first respondent obtained in the Court of the Subordinate Judge of Bezwada a money decree against the appellant, the appellant's uncle and a cousin, who were the members of an undivided family. The amount for which judgment was obtained was Rs. 3,735, but a mistake was made in drawing up the decree and the figure inserted was Rs.200. It was not until the 16th July, 1928, that the mistake was corrected under the provisions of Section 152 of the Code of Civil Procedure. On the 6th December, 1933, the respondent caused the decree to be transferred to the Court of the Subordinate Judge of Guntur for execution and on the 5th March, 1934, he applied for attachment of certain immovable property. The appellant objected to the attachment on the ground that the property was his personal property and the decree had only made him liable to the extent of his interest in the family property. This objection was well founded and the attachment was raised. On the 12th November, 1935, the respondent filed another application for execution. Here he asked for the attachment of two decrees, one obtained by the appellant alone and the other in conjunction with his cousin. It was contended that the application was barred by the law of limitation and the contention was upheld by the Subordinate Judge. An appeal followed to the District Judge of Guntur who held that the decree was barred so far as it related to the sum of Rs. 2,200 but it was enforceable to the extent of Rs. 1,535, the difference between the Rs. 2,200 and Rs. 3,735, the figure which was inserted in the decree as the result of the amendment.

2. It is obvious that the District Judge's decision was wrong in allowing execution of part of the decree. The respondent must be entitled to the full amount, if entitled to anything. When the provisions of Section 48 of the Code of Civil Procedure and Article 182 of the Limitation Act are considered it however becomes manifest that the Subordinate Judge was right in holding that the decree was time barred.

3. Section 48(1) of the Code of Civil Procedure reads as follows:

Where an application to execute a decree not being a decree granting an injunction has been made, no order for the execution of the same decree shall be made upon any fresh application presented after the expiration of twelve years from-

(a) the date of the decree sought to be executed, or

(b) where the decree or any subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods, the date of the default in making the payment or delivery in respect of which the applicant seeks to execute the decree.

4. Therefore a decree which has been passed for more than twelve years cannot be executed, but where the decree or an order passed subsequent to the decree directs payment of money or the delivery of property to be made at a certain date or at recurring periods the date of the default in such a case shall be the starting point for the period of twelve years. Order 20, Rule 7 provides that the decree shall bear the date of the judgment.

5. Sub-section (2) of Section 48 says:

Nothing in this section shall be deemed-

(a) to preclude the Court from ordering the execution of a decree upon an application presented after the expiration of the said term of twelve years, where the judgment-debtor has, by fraud or force, prevented the execution of the decree at some time within twelve years immediately before the date of the application; or

(b) to limit or otherwise affect the operation of Article 180 of the second Schedule to the Indian Limitation Act, 1877.

6. The corresponding article in the present Limitation Act is Article 182. Now, turning to Clause (4) of that article we find that the period of limitation where a decree has been amended is three years from the date of the amendment, but the article is expressly limited to applications for execution not provided for by Article 183 or by Section 48 of the Code of Civil Procedure. Article 183 refers to applications to enforce; judgments of High Courts and it has no bearing here. In as much as Article 182 clearly leaves the provisions of Section 48 untouched there can be no execution of a decree governed by Section 48 when twelve years have passed from the date of the I decree, amendment or no amendment. It is true that there is no period of limitation for a amendment of a decree to correct an accidental slip or omission under Section 152 of the Code. But because the Code gives the Court 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. The question under consideration has been the subject of decisions by the Bombay, Allahabad, Lahore and Patna High Courts and they have all agreed 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. (See Narsingrao Konher Inamdar v. Bando Krishna Kulkarni I.L.R.(1918) 42 Bom. 309, Faqir Chand v. Kundan Singh I.L.R.(1932) 54 All. 622, Ganesh Das v. Vishan Das A.I.R. 1935 Lah. 292 and Musammat Dulhin v. Mahanth Harihar Gir I.L.R.(1939) 18 Pat. 395.) In Faqir Chand v. Kundan Singh I.L.R.(1932) 54 All. 622, the Allahabad High Court observed:

Now no change was made in Section 48 of the Code of Civil Procedure providing for the extension of the period of twelve 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 13. 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 twelve years allowed by Section 48; that is the period of twelve 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 twelve years or whether that amendment is made after the expiry of the period of twelve years. The reason why no amendment was made in Section 48 is that probably the greater period of twelve years is allowed by that section,, and it is probably the intention of the legislature that that period of twelve 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 twelve years to allow him to obtain his remedy by execution, then he has only himself to blame.

8. I agree entirely with what is said here.

9. In an unreported case of this Court (C.M.A. No. 264 of 1931) Madhavan Nair and Cornish, JJ., without giving any reasons, held that the period of limitation should be, calculated from the date of the amendment of the decree. As their decision runs contrary to the plain wording of Section 48 of the Code of Civil Procedure and Article 182 of the Limitation Act it cannot be allowed to stand.

10. The learned Advocate for the respondent has argued that Section 48 of the Code of Civil Procedure is not in all cases final and has drawn attention to the provisions of Section 15 of the Limitation Act, but all that need be said is that Section 48 is final unless there is some statutory provision which governs it in a particular case, and that is not the position here. Section 48 applies in the present case and as more than twelve years had elapsed before the last application for execution was made the decree had become time barred.

11. The appeal will be allowed and the judgment of the Subordinate Judge restored. The appellant is entitled to his costs in this Court and in the District Court. A memorandum of cross-objections filed by the respondent does not call for consideration and will be dismissed without costs.

Krishnaswamy Aiyangar, J.

12. I am of the same opinion. Indeed there is no escape from it when the language of Section 48 of the Code of Civil Procedure is read in the light of the provisions of Article 182 of the Indian Limitation Act. The words used in the first column of that article make it clear that the Legislature did not intend to interfere in any way with the limit of time fixed by Section 48. The Code of Civil Procedure and the Limitation Act were enacted at the same time and a comparison of the provisions of the two statutes makes it abundantly clear that there is an intimate relationship between the two. In the Limitation Act of 1908 a new provision was inserted to fix the point of time from which the period of limitation under Article 182 has to be calculated where the decree is amended; Clause (4) was added to the article, so as to make it clear in such a case that it is the date of the amendment from which limitation will run. While the case of an amendment is thus met and provided for by Article 182 of the Limitation Act it is significant that the language of Section 48 of the Code of Civil Procedure has been left unaltered. It is therefore a fair inference that the period of twelve years should be counted from the date of the decree irrespective of any amendment that it might have undergone since. The date of the amendment does not therefore furnish a fresh starting point under Section 48 of the Code of Civil Procedure and must accordingly be ignored in making the calculation.

13. It was suggested on behalf of the respondent that the fact that there is no period of time limited for an application for an amendment under Section 152 introduces an anomaly. It was said that a Court may grant and may be obliged to grant an amendment even after the period of twelve years fixed by Section 48 of the Code of Civil Procedure and where an amendment is so granted the order would be rendered futile and barren unless Section 48 is understood as permitting the twelve years' period to be calculated from the date of the amendment. This may be an anamoly but the remedy is in the hands of the Legislature. When the language of the statute is clear we cannot refuse to give effect to it on a consideration of this kind.

Somayya, J.

14. I agree with my Lord the Chief Justice.


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