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1952 DIGILAW 171 (MAD)

Kollepara Venkata Reddayya v. Muthangi Kondala Rao

1952-07-10

BASHEER AHMED SAYEED

body1952
Judgment.- This appeal is against the order of the learned Subordinate Judge of Rajahmundry upholding the decision of the learned District Munsif that the execution application taken out by the decree-holder in O.S. No. 110 of 1941 was not barred by limitation. The main point that has been urged by the learned counsel for the appellants is that the final decree which had been passed on 9th February, 1946, had become barred by time on 16th March, 1949, when the execution application was represented with a petition to excuse delay in re-presenting the same petition, Which had been returned for complying with certain requirements on two previous occasions. In this case, after the final decree was passed on 9th February, 1946, an execution application was presented on 13th February, 1947. It was returned on 17th March, 1947, for complying with certain defects. It was re-presented again on 24th February, 1947, without complying with the defects pointed out and again it was returned on 27th February, 1947, with a direction that it should be re-presented within seven days. Even this was not done and finally on 16th March, 1949, the application was re-presented with a petition to excuse delay. That application to excuse delay was however dismissed. An interlocutory application was filed on 16th March, 1949, for bringing the guardian on record and to amend the decree so as to make it possible for the judgment-debtors to be represented by the guardian. This interlocutory application for amendment of the decree and for bringing the guardian on record was ordered on 30th April, 1949. But this was done without notice to the judgment-debtors. The contention raised by the learned counsel for the appellants before me and which was also the contention raised before the lower Court was that the amendment of the decree, which was ordered on 30th April, 1949, ought not to have been ordered, as, on that date, the decree had already become barred and the further contention is that the amendment was Ordered without notice to the judgment-debtors and therefore the order would not be binding against the judgment-debtors. No doubt, the fact is that the amendment was ordered after the decree had prima facie become time barred and for the reason that no notice was issued to the judgment-debtors, there was no opportunity given to them to point out that the decree had already been barred and no amendment was called for. These are no doubt legitimate grievances, which the judgment-debtors are entitled to agitate, but the question is as to the stage and the Court before which these grievances should have been agitated by the judgment-debtors, who are aggrieved by the amendment ordered by the Court which passed the decree and by the omission, which was caused by that Court in not issuing notices to the judgment-debtors. It is doubtful whether the judgment-debtors could raise this point in an application to execute the amended decree before the executing Court. The executing Court is not entitled to go behind the decree, which stands amended rightly or wrongly and the executing Court will not also be entitled to hear the judgment-debtors when they claim that the amendment had been ordered without notice to them, or that the decree had been amended, when it had become time-barred. These two points, which the learned counsel has taken, have been rightly negatived by both the Courts as the same should have been agitated before the Court which passed the decree and which ordered the amendment, Under Article 182, sub-clause (4) of the Limitation Act, it is made clear that the starting point for an amended decree is the date of the amendment and the decree-holder appears to be well within his rights, when he proceeds to execute the decree before the time prescribed had lapsed, though the decree might have been passed on 9th February, 1946. The date of the amendment gives him a fresh starting point, and if the benefit of that starting point has to be denied, steps should have been taken by the judgment-debtors earlier before the Court, which passed the decree and which ordered the amendment. Learned counsel for the appellants has invited my attention to the decision in Rameshwar Narain Misra v. Raghunandan Purbey1. I do not think that that decision would apply to the facts of this case. Learned counsel for the appellants has invited my attention to the decision in Rameshwar Narain Misra v. Raghunandan Purbey1. I do not think that that decision would apply to the facts of this case. On the other hand, the decisions relied on by the learned counsel for the respondent, viz., Lakshmikanta Rao v. Ramayya2, Imam Din v. Peoples I. and S. Bank3, Ghafoor Darzi v. Ramnath Misir4, which in turn follow the Privy Council decision in Nagendra Math Dey v. Suresh Chandra Dey5, seem to apply to the facts of this case and I am therefore inclined to hold that the decision of the lower appellate Court is correct, and though there might be some grievances so far as the judgment-debtors are concerned in that they were not given notice, still these grievances cannot be remedied by the executing Court from out of whose order this appeal has arisen. If there had been an appeal against the order of the Court which originally passed the decree and ordered the amendment, it would be possible to say that notice should have been given and the appellants should have been heard as to whether the amendment was called for or not and whether the decree-holders were in time in asking for the amendment. But, I do not think that in the present case I am called upon to give any such directions for the reason that this is an application, which has arisen out of the order made by the executing Court. Therefore, this appeal has to fail and is accordingly dismissed. In the circumstances of the case, I think there need to no order as to costs in this appeal. I make no order as to what the judgment-debtors might be advised to do in order to get such redress as is possible and available to them in the matter of their grievances referred to in this judgment before the Court which passed the decree and also ordered the amendment. (Leave to appeal is refused.) K.C. ----- Appeal dismissed.