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Perumal Naicker and ors. Vs. Sheik Davood Rowther - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in34Ind.Cas.393
AppellantPerumal Naicker and ors.
RespondentSheik Davood Rowther
Cases ReferredIn Tata Charlu v. Konadala Rama
Excerpt:
civil procedure code (act xiv of 1882), section 210 - civil procedure code (act v of 1908), section 48, order xx, rule 11--order recording application under order xx, rule 1(2), effect of--order postponing execution, whether order for amendment of decree--execution--limitation. - - 2. the court endorsed on the petition 'mr. but if it had been filed within six months the reason given for treating an order for registration of such an application as an order granting it would still hold good. as we said the question is not free from difficulty, the difficulty having been created principally by the action of the subordinate judge in not having passed a clearly expressed order in 1900. we, therefore, make no order as to costs here or in the lower appellate court......(2) of order xx, rule 11, of the new code directs the decree to be amended, when an order is passed under those provisions, granting time or permitting payment by instalments, though such an order is in substance an order varying the decree.4. in the result, though not without hesitation, we hold that the order of the subordinate judge, dated 1st december 1900, was an order under section 210 amending the decree and as under the amended decree, execution could not take place before 1st august 1901, the present execution application, dated in december 1912, was not barred under the 12 years' rule enacted in section 48, civil procedure code. the appeal is allowed and the district judge's order is set aside, that of the subordinate judge restored. as we said the question is not free from.....
Judgment:

1. The decree in this case was passed on 1st August 1900. A petition signed by all the parties was filed on 1st December 1900 under Section 210 (old Civil Procedure Code) and another under Section 257A of that Code. As a petition under Section 210, it was within time, as Article 175 of the Limitation Act allows such a petition to be filed within six months of the decree.

2. The Court endorsed on the petition 'Mr. T.R.' (Vakil) 'signs for defendants under special power. Recorded.' In Jhoti Sahu v. Bhubun Gir 11 C. 143 it was held that where the Court struck off an execution application on the 11th July 1881 on the judgment-debtor's putting in an application on that date, mentioning an agreement to pay the decree amount by instalments and such an agreement was also admitted by the decree-holder and the application mentioning such an agreement was registered' by the Court before the execution application was struck off, such registration amounted to a direction under Section 210 by the Court that the decretal amount be paid by instalments as agreed upon. That decision was, no doubt, admitted to be an erroneous decision on some other point in Abdul Rahaman Sodagur v. Dullaram Marwari 14 C.ds 348, as that decision overlooked the fact that the application of 11th July 1881 was barred by the six months' rule enacted in Article 175 of the Limitation Act. But if it had been filed within six months the reason given for treating an order for registration of such an application as an order granting it would still hold good.

3. In Tata Charlu v. Konadala Rama-chandra Reddi 7 M.k 152 it was held that an order passed on a petition under Section 210 granting two years time to pay the decretal amount is an order amending the decree, though no formal amendment was made in the original decree, We might add that neither the second paragraph of Section 210 of the old Civil Procedure Code nor Clause (2) of Order XX, Rule 11, of the new Code directs the decree to be amended, when an order is passed under those provisions, granting time or permitting payment by instalments, though such an order is in substance an order varying the decree.

4. In the result, though not without hesitation, we hold that the order of the Subordinate Judge, dated 1st December 1900, was an order under Section 210 amending the decree and as under the amended decree, execution could not take place before 1st August 1901, the present execution application, dated in December 1912, was not barred under the 12 years' rule enacted in Section 48, Civil Procedure Code. The appeal is allowed and the District Judge's order is set aside, that of the Subordinate Judge restored. As we said the question is not free from difficulty, the difficulty having been created principally by the action of the Subordinate Judge in not having passed a clearly expressed order in 1900. We, therefore, make no order as to costs here or in the lower Appellate Court.


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