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1987 DIGILAW 623 (KER)

OOMMEN NAINAN v. SOMASUNDARAM PILLAI

1987-12-02

VARGHESE KALLIATH

body1987
Judgment :- 1. The decree-holder who got a decree dated 30-11-1970 for recovery of money, filed an execution petition, E.P. 124 of 1981, on 7-8-1981. The suit was for realisation of some amount from the respondent-judgment debtor. A decree was drafted saying that the judgment debtor can pay off the amount in instalments and, in default, the decree-holder can apply for the passing of a final decree. This clause in the decree was not in conformity with the judgment. No doubt, in the judgment the plaintiff-decree holder was entitled to realise the amount. But, unfortunately, a proper decree had not been drafted in terms of the judgment. 2. When the decree-holder put the decree in execution, it was found out that the decree as it stood on 7-8-1981 was not enforceable by an execution court since that decree provided for the passing of a final decree. Realising this serious error, it seems that the decree-holder did not press the E.P. and it was dismissed. 3. The decree-holder approached the trial court and wanted the decree to be amended. The decree was amended en 31-7-1985. Of course, the counsel for the respondent submits that the decree-holder applied for amendment of the decree only in June 1984 With the amended decree, the decree-holder filed E P. 162 of 1985 on 9-10-1985. This E P. was dismissed stating that the E.P. was filed after 12 years from 30-11-1970, the date of the unamended decree. The decree-holder has now filed this Civil Revision Petition against the order of the execution court. 4. The counsel for the decree-holder submitted that the decree as it stood was not an enforceable decree and an enforceable decree came into existence only when the decree was amended. He submits that there was no time limit for amending a decree. 5. It is significant to note that when the new Limitation Act came into force, the provision for execution of decree was provided in a comprehensive manner in Art.136 in the place of Art.182 of the earlier Limitation Act. Art.136 of the Limitation Act reads thus: It is significant to note that in Art.182 of the old Limitation Act, the starting point of limitation was described on several basis and one of the basis was "where the decree has been amended the date of amendment; or". Art.136 of the Limitation Act reads thus: It is significant to note that in Art.182 of the old Limitation Act, the starting point of limitation was described on several basis and one of the basis was "where the decree has been amended the date of amendment; or". Now, the starting point of limitation is described as "when the decree or order becomes enforceable". Naturally, a question has arisen, when exactly a decree becomes enforceable? A decree becomes enforceable only when there is no impediment for the decree-holder to enforce the decree. 6. This Court had occasion to consider the question of amendment of a decree and the application of Art.136 of the Limitation Act in the decision reported in Ouseph v. Lona (1978 K.L.T. 624. This decision was very much relied on by the counsel for the respondent. Of course, in this decision, the court held that the date that has to be reckoned is the original date of the decree and not the date of the amendment of the decree. In this decision it has been said very clearly thus: "Although the decree underwent a change with its amendment on 24-7-1962, until the date of the amendment, the decree in its original form was enforceable as from the date on which it was passed, that is, 28-6-1961. It was that date which is crucial for computing the period of limitation as provided under Art.136." In fact, the learned judge has givers emphasis to the fact that the decree in its original form was enforceable even before the amendment and from the date on which the decree was passed, namely, 28-6-1961. 7. I am not applying the ratio of this decision to the circumstances revealed in this case. In this case, it is admitted that the decree that was passed on 30-11-1970 provided for the passing of a final decree which implicits that that decree which was passed on 30-11-1970 was not enforceable without the passing of a final decree. So, there is no point in saying that there was as enforceable decree as on 30-11-1970. Perhaps, it may be a mistake. Then the question is who has committed the mistake. Obviously, the answer is that the mistake has been committed not by the decree-holder but by the court itself. So, there is no point in saying that there was as enforceable decree as on 30-11-1970. Perhaps, it may be a mistake. Then the question is who has committed the mistake. Obviously, the answer is that the mistake has been committed not by the decree-holder but by the court itself. Then, the further question is, if the court has committed such a mistake whether the decree-holder has to suffer the consequences of it. My answer is the mistakes or omissions of the court should not cause any prejudice or injury to a suitor and, applying that principle, I must say that the proper and correct understanding of the situation is that the decree that was passed on 30-11-1970 is a decree which was not enforceable and it was not enforceable not on account of the fault of the decree-holder and so the decree-holder cannot be made liable for its consequences. The decree became enforceable only when it was amended and so applying Art.136 of the Limitation Act, the starting point has to be determined and I will determine the starting point as the date on which the decree becomes enforceable and, in this case, the decree became enforceable only on 31-7-1985 and so the execution petition filed en 9-10-1985 is within time and the decree is executable. In the result, I set aside the order of the court below and allow this Civil Revision Petition. I direct the court below to take E.P. 162 of 1985 on its file and proceed with the E.P. according to law. No costs. Issue photocopy of this order to the counsel appearing in this case, on usual terms. Allowed.