NAICKEN GOVINDAN Vs. KALLIYANI AMMA
HIGH COURT OF KERALA
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(1.) The short point for determination in this second appeal preferred by the judgment debtors is whether the execution of the decree in question was hit by the twelve years rule enacted by S.48, Civil Procedure Code. The decree under execution is one passed by the Trichur District Munsiffs Court on 19.2.1113. The execution application wherefrom the second appeal arises was filed on 8.12.1125. It is common ground that this application was made within three years of the dismissal of the one that immediately preceded it, but it was made beyond twelve years from the date of decree. The decree holder, however, depended on three grounds to show that it was not hit by the limit prescribed by S.48.
(2.) The first ground was that there was no judicial disposal of the prior application and that therefore, the application made on 8.2.1125 was only one to revive the earlier one. The second ground was that by virtue of an amendment of the decree under S.24 of the Cochin Agriculturists Relief Act (Act XVIII of 1114), made on 3.8.1115 a new decree had come into being and that the decree holder was therefore entitled to a fresh period of twelve years from the said date. The third and the last ground was that even if the amendment did not produce a fresh decree and a consequent fresh lease of life for twelve years, the order amending the decree would amount to a subsequent order within the meaning of S.48(1)(b) and that it gave a fresh period of twelve years from the date when the judgment debtors committed default in paying the first instalment under the scaled down decree, namely, the last day of Makaram 1115. The learned District Munsiff repelled all these grounds and held that the application was barred under the twelve years rule. On appeal by the decree holder, the learned Additional District Judge of Trichur accepted the decree holders contentions under all the three heads and in reversal of the order of the execution court, held that there was no bar of limitation for the execution application. The judgment debtors have come up to this court in second appeal against the learned Judges decision.
(3.) In our opinion, whether the lower appellate courts decision on the first and the second grounds be good or not, the order appealed against has to be upheld on the third ground that the order amending the decree under S.24 of the Cochin Agriculturists Relief Act amounted to a subsequent order within the meaning of S.48(1)(b) of the Code of Civil Procedure. S.24 of the Cochin Agriculturists Relief Act provided inter alia that in the case of a decree passed before the commencement of the Act, the court that passed the decree shall amend it according to the provisions of the Act, if and when an application in that behalf is made within ninety days of the Act coming into force by a judgment debtor who is an agriculturist. S.7(3) of the Act provided that the debt scaled down under the Act shall be payable in two equal instalments falling on the last day of Makaram and Karkadagam 1115 and that if default is made in any instalment the whole or the balance, as the case may be, of the debt as scaled down with interest as specified in S.13 from the date of default shall become immediately payable. The provision in S.48(1)(b), Civil Procedure Code, so far as relevant is to the effect that where the decree or any subsequent order directs any payment of money to be made at a certain date or at recurring periods, the date of the default in making the payment of which the applicant seeks to execute the decree shall be the starting point for the application of the twelve years rule. Cl. (a) of Sub-s. 1, S.48, provides the normal starting point and that is the date of the decree. Admittedly the amendment made on 3.8.1115 was in terms of S.7(3) of the Cochin Agriculturists Relief Act. To our minds it is difficult to understand why such an order made by the court which passed the decree should not be treated as a subsequent order within the meaning of S.48(1)(b). The order for amendment as also the decree as amended and the provision in S.48(1)(b) well go together and the order has to be treated as a subsequent order within the meaning of the section. We therefore uphold the lower appellate courts order that the execution is not hit by the twelve years rule.;
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