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Abdul Sathar Sahib and anr. Vs. Abdul Lateef Sahib - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtChennai High Court
Decided On
Case NumberA.A.A.O. No. 38 of 1969
Judge
Reported inAIR1972Mad322
ActsCode of Civil Procedure (CPC), 1908 - Order 21, Rule 35
AppellantAbdul Sathar Sahib and anr.
RespondentAbdul Lateef Sahib
Cases ReferredJ. and Mohammed Ismail v. Fathma Bivi
Excerpt:
- - i am satisfied that the respondent must succeed. 182 has clearly left the provisions of section 48, c. fathma bivi air 1965 mad 45 and i respectfully agree with these decisions, and i would like to add in view of the use of the word amendment in the article that it is immaterial that the amendment was made not at the instance of the party seeking execution at a later stage......that in such execution it is not open to the judgment-debtor to contend that the execution is time barred on the ground that the earlier final decree was time barred on the date of application for amendment or that the amendment was not necessary and that these are matters which have to be dealt with by the court to which the application for amendment is made. the learned judges purported to give the words of art. 182(4) their plain meaning following the principle of construction laid down by the privy council in nagendranath dey v. suresh chandra dey and differed from the decision of madhavan nair, j. in ahmed kutti v. kottakat kuttu air 1933 mad 315, observing that the learned judge has not while construing the section kept in mind the decision of the privy council cited above.6......
Judgment:

1. The execution application out of which this appeal arises was filed by Abdul Lateef Sahib the first defendant in O.S. No. 54 of 1949 on the file of the Cuddalore Sub-Court under Order 21, Rule 35, C.P. Code for delivery of property as per terms of the decree against the appellants and some others.

2. The final decree in the suit which was passed on 6-10-1958 was actually engrossed on non-judicial stamp papers only on 2-8-1960. The fortyfifth defendant in the suit who had purchased item No. 77 in execution of a decree against the second defendant Abdul Sahib (the first appellant herein) filed an application for amending the final decree praying for allotment of that item to him instead of the first appellant herein. The amendment was allowed by the learned Subordinate Judge on 25-10-1962.

3. E.P. No. 43 of 1965 was filed by the first defendant respondent herein on 12th July, 1965 for delivery of the properties that were allotted to his share in the final decree.

4. The appellants contend that the execution application is barred by limitation; and the plea is resisted on the ground that the amendment ordered in favour of the fortyfifth defendant will enure in favour of the respondent herein. I am satisfied that the respondent must succeed.

5. Art. 182(4) of the old Limitation Act (1908) states that where a decree had been amended, the date of amendment would be the starting point of limitation for calculating the period of three years available for executing the decree. In Lakshmikanta Rao v. Ramayya : AIR1935Mad97 , a Division Bench of this Court has upheld the respondent's contention, holding that the words of Art. 182(4) must be given their plain meaning that for an application for execution of a final decree which has been amended, three years' limitation starts from the date of amendment, that in such execution it is not open to the judgment-debtor to contend that the execution is time barred on the ground that the earlier final decree was time barred on the date of application for amendment or that the amendment was not necessary and that these are matters which have to be dealt with by the Court to which the application for amendment is made. The learned Judges purported to give the words of Art. 182(4) their plain meaning following the principle of construction laid down by the Privy Council in Nagendranath Dey v. Suresh Chandra Dey and differed from the decision of Madhavan Nair, J. in Ahmed Kutti v. Kottakat Kuttu AIR 1933 Mad 315, observing that the learned Judge has not while construing the section kept in mind the decision of the Privy Council cited above.

6. In Ramachandra Rao v. Parasuramayya, AIR 1940 Mad 127 the effect of the amendment of the decree came up for consideration vis-a-vis Sec. 48, C.P. Code and the Full Bench held 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 on the ground that Art. 182 has clearly left the provisions of Section 48, C.P.C. untouched. It is true that the learned Chief Justice had observed in the course of his judgment that 'a correction made in a time-barred decree leaves the decree still time-barred'; but in my view that observation must be read in the context in which it appears and it will be plain that the observation was meant only to cover a case of an amendment made beyond the 12 years period prescribed by Section 48, C.P. Code. The observations of the learned Chief Justice and Krishnaswami Aiyangar, J. found in their judgments tend to support the view that a fresh period of limitation will ensure for a decree-holder or any person entitled to execute the decree from the date of amendment even if the amendment has been made after the decree had become time-barred.

7. The same view has been taken by this Court in Venkata Reddayya v. Kondala Rao : AIR1953Mad1007 and recently by Ramamurti, J. and Mohammed Ismail v. Fathma Bivi AIR 1965 Mad 45 and I respectfully agree with these decisions, and I would like to add in view of the use of the word amendment in the Article that it is immaterial that the amendment was made not at the instance of the party seeking execution at a later stage.

8. The appeal is without any merit and is therefore dismissed with costs. Leave refused.

9. Appeal dismissed.


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