VELU PILLAI ALIAS VELUSWAMI PILLAI Vs. G V SUNDARARAJULU NAIDU
HIGH COURT OF MADRAS
VELU PILLAI ALIAS VELUSWAMI PILLAI
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Rajamannar, C.J. -
(1.) WE agree with the learned Judge Panchapakesa Aiyar J. against whose judgment this Letters Patent Appeal has been filed that the execution petition filed by the respondent is not barred by limitation. The decree in question was passed on 2-11-1933. It is a mortgage decree but by inadvertence, interest subsequent to the date of the decree was not awarded by it. On 20-3-1945 the respondent filed an execution petition including subsequent interest also which was not awarded by the decree. The petition was therefore returned to be represented after the decree had been amended. Thereupon the respondent filed an application for amendment within 12 years from the date of the original decree. The amendment, however, was ordered only on 28th March 1946. Thereafter when the respondent wanted to continue the execution proceedings, he was met with the plea that the decree had become barred under Section 48, C. P. C. as 12 years had elapsed from the date of the original decree. WE fail to see how the bar of limitation can be successfully sustained in this case. Admittedly the execution petition which is now sought to be proceeded with was filed within 12 years from the date of the original decree. The application for amendment of the decree was also made within that period. The fact that the amendment was eventually ordered on a date after the expiry of the period of 12 years would not make a difference because the amendment would obviously date back to the date of the application at least, if not to the date of the original decree. It was contended for the appellant judgment-debtor that the original execution petition must be deemed to be one not in accordance with law; but we are unable to accept this contention. He also relied upon the ruling in -' Faquir Chand v. Kundan Singh', 54 All 622. That decision, however) has no bearing whatever on the facts of this case because in that case the execution petition itself was filed after the lapse of 12 years from the date of the original decree. In the present case, the execution petition was filed well within time but was being returned to be represented after the amendment of the decree had been carried out. In these circum stances, there was no bar of limitation under Section 48, C. P. C. The appeal is dismissed with costs.;
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