Bashir Beg v. Wajid Ali — 1946 DIGILAW 148 (ALL)

JUDGMENT Malik, J. - This appeal has been filed by the decree-holder whose application for execution was dismissed on the ground that it was barred by limitation. The appellant brought a suit, No. 354 of 1935, in the Court of the Munsif of Amroha on the basis of a mortgage. The suit was decreed and a final decree for sale wad passed on 4-2-1936. The property included in that decree was, however, misdescribed and the decree was amended on 80-4-1938, under S. 152, Civil P.C. So far as the amendment of 1988 is concerned it was merely a correction of a clerical error and I do not want to express any definite opinion as to whether it can be said! that the decree was amended in the year 1938. The judgment-debtor being an agriculturist was entitled to the benefit of the Temporary Postponement of Execution of Decrees Act (10 [x] of 1937) and the decree-holder therefore did not apply for execution. The Act was repealed with effect from 31-12-1940. The judgment-debtor thereafter applied for amendment of the decree under s. 8, U.P. Debt Redemption Act (13 [XIII] of 1940). The decree was amended on 21-3-1941. The decree-holder filed this application for execution on 3-3-1944. 2. The trial Court held that the application for execution was within time and dismissed the objection of the judgment-debtor. The lower appellate Court has upset that decision on the ground that even if the benefit of the Temporary Postponement of Execution of Decrees Act is given to the decree-holder he would be entitled to a further period of three years from 4-2-1936, and that the application for execution should, therefore, have been filed by 4-2-1942. The application having been filed on 3-3-1944, it was, according to the lower appellate" Court, clearly burred by limitation. 3. The lower appellate Court has not taken into consideration cl. (4) of Art. 182, Limitation Act, which says that for the execution of a decree or order of any civil Court not provided for by Art. 183, or by S. 48, Civil P.C., the period of limitation is three years from the date of amendment where the decree has been amended. There can be no doubt that the decree was amended under S. 8, U.P. Debt Redemption Act on 21-3-1941. There can be no doubt that the decree was amended under S. 8, U.P. Debt Redemption Act on 21-3-1941. If the provision of Art 182 is applicable, there can be no doubt that the application filed on 3-81944, was within three years of the date of amendment. Learned counsel for the judgment debtor has, however, relied on sub-s. (2) of S. 8, Debt Redemption Act, which provides that a decree amended under the provisions of sub-s. (1) shall be deemed to bear the date of the original decree. It is nowhere laid down in the sub-section that the date of amendment shall be deemed to be the date of the original decree. The provision is, to my mind, unnecessary, unless it was enacted as a matter of precaution, as I know of no law which would entitle a Court amending a decree, except by way of review under O. 47, Civil P.C., where the previous decree is set aside and a fresh decree is passed, to change the date of the original decree. I have dealt with this matter at some length in B. Manmohan Lal and Others Vs. B. Raj Kumar Lal and Others, AIR 1946 All 89 Manmohan Lal v. Raj Kumar Lal My decision in that case no doubt was not in accordance with the majority view, but I can find nothing in the judgment of the other learned Judges which would compel me to hold that the date of amendment must also be deemed to be the date of the original decree. On the other hand, the Hon'ble the Chief Justice has observed as follows: All that clause (2) provides is that the amended decree 'shall be deemed to bear the date of the original decree' and not that the amended decree shall actually bear the date of the original decree. It is inevitable that the date appended to the amended decree will be the date on which the original decree is amended and for the purposes of limitation governing appeals, the actual date of the decree and not the date that the decree is 'deemed to bear' is the relevant date. To put the matter in another way. It is inevitable that the date appended to the amended decree will be the date on which the original decree is amended and for the purposes of limitation governing appeals, the actual date of the decree and not the date that the decree is 'deemed to bear' is the relevant date. To put the matter in another way. In view of the provisions of clause (2) of S. 8, the notional date of the amended decree is the date of the original decree, but in fact the actual date of the amended decree will be the date on which the decree was amended, and the limitation for appeal will be computed from the actual date that the amended decree bears. A party aggrieved from the amended decree can, therefore, appeal against the decree, within the period of limitation allowed by the Limitation Act. If I understand this correctly, it means that though sub-s. (2) provides that the decree shall be deemed to bear the date of the original decree for the purposes of appeal the date of the amendment is supposed to be the date of the decree. There is nothing in this judgment which would compel me to hold that the date of amendment must be taken to be the prior date, that is the date of the original decree. The judgment of Hon'ble Allsop J. is still more clear on the point. He held 'that' the order amending the decree is a decree and it must bear the date when the order of amendment was passed. He has said: I am satisfied that an appeal must lie either against the attended decree itself or against the direction that the decree should be amended. The order of amendment, therefore, must bear the date on which the order was made. In this view of the matter the decree-holder can execute his decree within three years of the date of amendment, that is within three years of 21-3-1941. As I have already said, the application was within time from that date. 4. Learned counsel for the respondent has relied on a Full Bench decision of the Oudh Chief Court in support of his contention. Section 30, U.P. Agriculturists' Relief Act, (27 [xxvii] of 1934), provides for amendment of decrees by reduction in the rate of interest. As I have already said, the application was within time from that date. 4. Learned counsel for the respondent has relied on a Full Bench decision of the Oudh Chief Court in support of his contention. Section 30, U.P. Agriculturists' Relief Act, (27 [xxvii] of 1934), provides for amendment of decrees by reduction in the rate of interest. Sub-section (3) of S. 30 is to the effect that a decree amended in accordance with the provisions of sub-s. (2) shall be deemed to bear the date of the original decree and notwithstanding any provision in any law to the contrary, no appeal shall lie from any order amending a decree under that sub-section. It would be noticed that the language of sub-s. (3) of S. 30, Agriculturists' Relief Act, is very similar to the language of sub-s. (2) of S. 8, Debt Redemption Act. Dealing, with sub-s. (3) of s. 30, Agriculturists' Relief Act, Srivastava Ag. C.J. in AIR 1937 312 (Oudh) Jhamman Lal v. Surat Singh at page 316, held as follows: As regards the argument based on sub-s. (3), S. 30, which provides that a decree amended in accordance with the provisions of sub-s (2), shall be deemed to bear the date of the original decree, it would be enough to say that the object of the sub-section appears simply to be that the decree-holder should not be allowed to claim a fresh period of limitation from the date of the amendment under Art. 182 (4), Sch. 1 to the Limitation Act. It is not clear to me how the point arose in that case and there is no discussion of that point in the judgment of any of the other learned Judges. So far as I can see, the observations were obiter, and with great respect to the learned Judge I am not prepared to follow his view. 5. In my opinion, the application for execution was, therefore, within time and the lower appellate Court erred in rejecting the same. For the reasons given above, I allow this appeal, set aside the order of the lower appellate Court and restore that of the Court of first instance with costs in all Courts. Leave to file an appeal under the Letters Patent is granted.