KOLLEPARA VENKATA REDDAYYA Vs. MUTHANGI KONDALA RAO
HIGH COURT OF MADRAS
KOLLEPARA VENKATA REDDAYYA
MUTHANGI KONDALA RAO
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Basheer Ahmed Sayeed, J. -
(1.) This appeal is against the order (sic) the learned Subordinate Judge of Rajahmundry (sic)pholding the decision of the learned District (sic) that the execution application taken out by (sic) decree-holder in O. S. No. 110 of 1941 was not (sic) by limitation.
(2.) The main point that has been urged by the (sic) counsel for the appellants is that the final (sic) which had been passed on 9-2-1946 had be(sic) barred by time on 16-3-1949, when the execu- (sic) application was re-presented with a petition (sic) excuse delay in re-presenting the same petition, (sic) had been returned for complying with (sic) requirements on two previous occasions. In (sic) case, after the final decree was passed on 9-2-(sic), an execution application was presented on (sic)-2-1947. It was returned on 17-3-47 for complying (sic) certain defects. It was re-presented again on (sic)-2-1947 without complying with the defects point-(sic) out and again it was returned on 27-2-1947, with (sic) direction that it should be re-presented within 7 (sic). Even this was not done and finally on 16-3-(sic), the application was represented with a peti- (sic) to excuse delay. That application to excuse (sic) was, however, dismissed. (sic)An interlocutory application was filed on 16-3-1949 (sic) bringing the guardian on record and to amend (sic) decree so as to make it possible for the judg- (sic)-debtors to be represented by the guardian. (sic) interlocutory application for amendment of (sic) decree and for bringing the guardian on record (sic) ordered on 30-4-49. But this was done without (sic) to the judgment-debtors. The contention (sic) by the learned counsel for the appellants (sic)fore me and which was also the contention (sic) before the lower court was that the amendment of the decree, which was ordered on 30-4- (sic) ought not to have been ordered, as, on that (sic), the decree had already become barred and (sic) further contention is that the amendment (sic) ordered without notice to the judgment- (sic) and therefore the order would not be binding against the judgment-debtors.
(3.) 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), 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 9-2-1948. 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.;
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