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Sureshwar Prasad Bhakat Vs. Maharaj Bahadur Sinha - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtKolkata
Decided On
Reported inAIR1937Cal581,173Ind.Cas.584
AppellantSureshwar Prasad Bhakat
RespondentMaharaj Bahadur Sinha
Cases ReferredMungal Pershad Dichit v. Grija Kant Lahiri
Excerpt:
- .....whether the two clerical errors which were corrected amounted in fact to an amendment within the meaning of article 182(4).4. for the appellant, the cases in anandram v. nityananda barham air 1916 cal 611, decided by sharfuddin and teunon, jj., and rabiuddin v. ram kanai sen air 1920 cal 769, decided by n.r. chatterjea and panton, jj., are quoted in support of the proposition that when no steps have been taken for execution of the decree for a period of three years, the decree becomes barred and a subsequent amendment will not have the effect of reviving the said decree or giving a fresh start to the decree-holder unless the decree was incapable of execution before the amendment.5. on behalf of the respondent, the cases in durga prosad das v. kedar nath. : air1929cal650 decided by b.b......
Judgment:

M.C. Ghose, J.

1. This is a second appeal by the judgment-debtor 3 in an execution case. The suit was instituted in 1915. The decree of the High Court in second appeal was passed on 30th March 1927. No step was taken to execute the decree for three years from that date but after the three years had expired, viz. on 21st January 1931, the decree-holder made an application in the lower Appellate Court for amendment of the decree on the ground that there were two errors in the decree of the Appellate Court: one, in respect of the number of the original suit and the other in respect of the name of appellant 2, viz. that the number of the suit should be not 438 of 1925 but 438 of 1915 and the name of judgment-debtor 2 should be Tareshwar Prosad Bhakat instead of Tarakeshwar Prosad Bhakat. The amendment was made on 1st April 1931. Thereafter an application for execution was made on 23rd November 1932. A notice upon the judgment-debtor was issued, but no further steps being taken by the decree-holder, the application was dismissed on 26th July 1933. Thereafter on 12th July 1935, the present execution petition was filed. The judgment-debtor 3, the present appellant, objected to the execution on the ground that the alleged amendment was a mere verbal correction of matters which in no way affected the execution of the decree and as such the amendment did not save the limitation of the decree which was barred not having been executed for three years. The objection was rejected by the trial Court and an appeal to the District Judge was dismissed.

2. In this Court, the learned advocates on both sides have argued the matter at length dwelling upon the relevant rulings. The words of Article 182, Sch. 1, Lim. Act, so far as are relevant in the present case are these:

For the execution of a decree the period of limitation is three years from (1) the date of the decree or (2) (where there has been an appeal) the date of the final decree of the Appellate Court or the withdrawal of the appeal or (3) (where there has been a review of judgment) the date of the decision passed on the review, or (4) (where the decree has been amended) the date of amendment.

3. Both the Courts below have held that inasmuch as the decree was amended on 1st April 1931, the execution petition of 23rd November 1932 was in order and the second execution petition which was filed within three years of the decision of the first was also in order. The question is whether the amendment made in this case comes under Clause (4) of Article 182. The word 'amend' according to the Oxford Dictionary means 'to abandon evil ways; to make better; (in law) to correct an error'. The question is whether the two clerical errors which were corrected amounted in fact to an amendment within the meaning of Article 182(4).

4. For the appellant, the cases in Anandram v. Nityananda Barham AIR 1916 Cal 611, decided by Sharfuddin and Teunon, JJ., and Rabiuddin v. Ram Kanai Sen AIR 1920 Cal 769, decided by N.R. Chatterjea and Panton, JJ., are quoted in support of the proposition that when no steps have been taken for execution of the decree for a period of three years, the decree becomes barred and a subsequent amendment will not have the effect of reviving the said decree or giving a fresh start to the decree-holder unless the decree was incapable of execution before the amendment.

5. On behalf of the respondent, the cases in Durga Prosad Das v. Kedar Nath. : AIR1929Cal650 decided by B.B. Ghose and N.K. Bose, JJ. and Lakshmikanta Rao v. Kamayya : AIR1935Mad97 have been quoted in support of the proposition that an amendment whenever made will revive the decree on the plain reading of Article 182(4). Whether the amendment was formal or unnecessary were matters for the Court which allowed the amendment and not for the executing Court. In the Madras case reference was made to the Privy Council decision in Nagendra Nath Dey v. Suresh Chandra Dey where the question was as to the meaning in Article 182(2) of the expression 'where there has been an appeal'. Sir Dinshah Mulla giving the judgment of their Lordships stated:

The question of the meaning of the words 'where there has been an appeal', should be decided upon the plain words of the Article. The fixation of periods of limitation must always be to some extent arbitrary, and may frequently result in hardship. But in construing such provisions, equitable considerations are out of place, and the strict grammatical meaning of the words is the only safe guide.

6. Accepting the view of their Lordships that equitable considerations are out of place and the strict grammatical meaning of the words is the only safe guide, the question is whether the correction which was made in this case amounts to an amendment within the meaning of Article 182(4).

7. Having given the matter my best consideration, I am of opinion that the verbal corrections which were unnecessary did not in this case mean an amendment within the meaning of Article 182(4). The decree as it stood before the amendment was fully capable of execution. The error of the figure 2 instead of 1 in the column of the number of the suit and a slight error in the name of judgment-debtor No. 2 did not in any manner prevent the execution of the decree of 1927 and the decree-holder by not taking any steps to execute the decree for three years lost his right to execute the decree and having by negligence lost the right to execute the decree, he made an application afterwards for the verbal corrections in order thereby to secure a further period of limitation in his favour. There is nothing bona fide in the so-called amendment.

8. The learned advocate for the respondent has urged that the time for making this submission was when the amendment was allowed by the Court. It does not appear that the judgment-debtor appeared in the amendment matter. It is next said that a previous application for execution was made in November 1932 and as the judgment-debtor did not raise the objection in that case, it is too late for him to make the objection now. The decision of the Privy Council in Mungal Pershad Dichit v. Grija Kant Lahiri (1881) 8 Cal 51 has been quoted in this connexion. There it was held that although the execution of a decree might have been actually barred by time at the date of an application made for its execution, yet, if an order for such execution has been regularly made by a competent Court, having jurisdiction to try whether it was barred by time or not, such order, although erroneous, must, if unreversed, be treated as valid. In that case the judgment-debtor so far from appealing against an order, acknowledged its validity and presented a petition by which he prayed for stay of attachment. That case has no analogy to the present case where an application was made for the execution, a notice was issued upon the judgment-debtor, there was no appearance on his behalf and no further step was taken by the decree-holder and the application was dismissed for default. This appeal is allowed with costs in all Courts, hearing fee in this Court two gold mohurs. Leave to prefer an appeal under the Letters Patent is refused.


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