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CASE NO.:

Appeal (civil) 160 of 1999

PETITIONER:

Akkayanaicker

RESPONDENT:

A.A.A. Kotchadainaidu & Anr.

DATE OF JUDGMENT: 23/09/2004

BENCH:

Ashok Bhan & S.H. Kapadia

JUDGMENT:

J U D G M E N T

BHAN, J.

Appellant/decree-holder being aggrieved against the

judgment and order of the High Court of Judicature at Madras

in CRP No. 3540 of 1992 wherein the High Court while allowing

the Civil Revision Petition filed by the respondent has dismissed

the execution petition filed by the appellant, has filed the

present appeal by leave of the Court.

Appellant/decree holder (hereinafter referred to as "the

decree holder") filed O.S. No. 322 of 1972 seeking a decree in

the sum of Rs. 18,912/- along with agreed rate of interest @

12% p.a. being the principal and the interest due on the

promissory note dated 3.6.1968 executed by the

respondent/judgment debtor (hereinafter referred to as "the

judgment debtor"). The suit was decreed on 2.5.1973. This

decree became final between the parties.

Decree holder filed execution petition No. 226 of 1973 but

the proceedings in the same were closed because of the

legislative intervention of the Tamil Nadu Indebted

Agriculturists (Temporary Relief) Ordinance, 1975 (Ordinance

1 of 1975). As per Section 3 no suit for recovery of a debt or an

application for execution of a decree for payment of money

passed in a suit for the recovery of a debt could be instituted

against an agriculturist in a civil or revenue court before the

expiry of a year from the date of the commencement of the

Ordinance. Section 4 provided for the stay of proceedings in

the suits or applications of the nature mentioned in Section 3

in which relief claimed was against the agriculturist, not being

proceedings for the amendment of pleadings or for the addition,

substitution, or the striking off of parties, but otherwise

inclusive of proceedings consequent on orders or decrees made

in appeals, revision petitions, or applications for review.

Section 5 provided that in computing the period of limitation or

limit of time prescribed for a suit for the recovery of a debt or

an application for the execution of a decree passed in such suit,

the time during which the institution of the suit or making of

the application was barred by Section 3 of the Ordinance or

during which the plaintiff or his predecessor-in-title believing in

good faith that Section 3 of the Ordinance applied to such suit

or such application refrained from instituting the suit or

making the application shall be excluded. The execution of the

decree already obtained was suspended for a period of one year.

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The legislature thereafter enacted Tamil Nadu Indebted

Agriculturists (Temporary Relief) Act, 1975 [Act 10 of 1975]

with the object to provide temporary relief to the indebted

agriculturists to spare them from the distractions and

expenditure involved in litigation launched by their creditors in

order that the maximum possible advantage may result to the

State in the matter of production of food crops. Section 3, as in

the Ordinance, created a bar to the institution of the suits or

applications for execution of a decree for payment of money

passed in a suit against an agriculturist for a period of one year

from the date of the commencement of the Act. Section 4

provided for stay of proceedings if the suits or applications for

execution of a decree had already been instituted and Section 5

provided for exclusion of time in computing the period of

limitation or limit of time prescribed for a suit for the recovery

of the debt or an application for execution of a decree passed in

such suit. After the expiry of one year of the Act 10 of 1975,

the legislature enacted The Tamil Nadu Indebted Agriculturists

(Temporary Relief) Act, 1976 [No. 15 of 1976] with the same

object as of Act 10 of 1975 and with similar provisions of bar of

institution of suits and the applications for execution, stay of

proceedings and exclusion of time while computing the period

of limitation for filing the suits or the applications for execution

of a decree. Thereafter, the legislature enacted The Tamil Nadu

Debt Relief Act, 1978 [Act No. 40 of 1978] for scaling down the

debts obtained by the agriculturists including the decrees

already passed. Judgment debtor filed an application for

scaling down the decree dated 2.5.1973 in terms of Act 40 of

1978. Executing Court scaled down the decree on 18.10.1979

in terms of the Act 40 of 1978.

The decree holder filed execution petition No. 412 of 1989.

The judgment debtor filed application E.A. No. 399 of 1991 in

E.P. No. 412 of 1989 stating therein that the execution petition

filed by the decree holder in the year 1989 was beyond the

period of limitation, the same having been filed after 12 years

from the date of the passing of the original decree dated

2.5.1973. It was prayed that the proceedings in the execution

petition No. 412 of 1989 be terminated. The case of the decree

holder was that the execution petition was within limitation as

the same had been filed within 12 years of the scaling down of

the original decree and the passing of the amended decree on

18.10.1979. The executing court did not accept the contention

advanced on behalf of the Judgment debtor and dismissed E.A.

No. 399 of 1991 filed by them. It was held that limitation to

file the execution petition under Article 136 of the Limitation

Act, 1963 would start from the date the decree was amended

as it is from that date the decree became enforceable.

The judgment debtor being aggrieved against the order

passed by the executing court filed CRP No. 3540 of 1992 in the

High Court of Judicature at Madras which was accepted. The

High Court held that E.P. No. 412 of 1989 was filed beyond the

period of limitation. That the limitation of 12 years for

execution of the decree would start running from the date of the

passing of the original decree i.e. 2.5.1973 and not from the

amended decree dated 18.10.1979. Aggrieved against the

aforesaid, special leave petition was filed by the decree holder in

which the leave has been granted.

It may be mentioned here that the decree holder filed

execution petitions 62 of 1980, 12 of 1981 and 681 of 1984.

Thrice arrest warrants were issued against the judgment

debtor. Once he was arrested but he escaped from the custody

and absconded. On an application filed by the decree holder,

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his property was brought to auction sale. Judgment debtor

deposited Rs. 50/- and Rs. 100/- towards the payment of the

decreetal amount. The case was adjourned innumerable times

at the requests of the judgment debtor to pay the decreetal

amount but in spite of the arrest and the publication for

auction sale of his property the judgment debtor failed to

deposit the decreetal amount.

Shri Nedumaran, learned counsel appearing for the

decree-holder has argued that for the purpose of Article 136 of

the Limitation Act, 1963 (hereinafter referred to as "the Act")

the starting point of limitation is not the date of the decree but

the date when the decree becomes enforceable. The

proceedings in execution application No. 226 of 1973 filed by

the decree-holder were closed and adjourned sine die because

of the legislative intervention of Tamil Nadu Indebted

Agriculturists (Temporary Relief) Ordinance, 1975 and

thereafter by the Act 10 of 1975 and Act No. 15 of 1976 which

provided for the stay of filing of the suits and the applications

for execution of a decree for recovery/payment of money and

the period during which the execution of the decrees remained

suspended was to be excluded. When there was a legislative

bar for the execution of a decree and later due to legislative

intervention the decree had to be scaled down and amended

then enforceability of decree shall commence when the bar

ceases or from the date the decree is amended and scaled

down. The decree was scaled down on 18.10.1979 in terms of

Act No. 40 of 1978 and it is from that date the decree became

enforceable. Reckoned the period of 12 years from this date as

provided under Article 136 of the Act the execution application

filed by the decree-holder in 1979 was within the period of

limitation.

As against this Shri Rishiraj Borooah, learned counsel

appearing for the respondents strenuously contended that the

period of 12 years for execution of the decree is to be reckoned

from the date of the passing of the original decree and not from

the date the decree was scaled down and amended.

On the above contentions, it has to be determined whether

the execution application filed by the decree-holder was within

the prescribed period of limitation? We shall commence the

determination of the question by first reading Article 136 of the

Act which is as follows:

"Description of

suit

Period of

limitation

Time from which period

begins to run

136. For the

execution of any

decree (other than a

decree granting a

mandatory injunc-

tion) or order of any

civil court

Twelve

years

(when) the decree or order

becomes enforceable or where the

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decree or any subsequent order

directs any payment of money or

the delivery of any property to be

made at a certain date or at

recurring periods when default in

making the payment or delivery

in respect of which execution is

sought, takes place: Provided

that an application for the

enforcement or execution of a

decree granting a perpetual

injunction shall not be subject to

any period of limitation."

From the perusal of Article, extracted above, it is clear

that the execution of a decree (other than a decree granting a

mandatory injunction) or order of any civil court, a period of 12

years is prescribed. Column 3 is in two parts indicating the

time from which the period of limitation begins to run, that is,

the starting point of limitation; the same are (i) when the decree

or order becomes enforceable and (ii) where the decree or any

subsequent order directs any payment of money or the delivery

of any property to be made at a certain date or at the recurring

period when default in making the payment or delivery in

respect of which execution is sought, takes place. Proviso says

that there shall be no period of limitation for enforcement or

execution of a decree granting a perpetual injunction. In the

present case, we are concerned with the first of the above-

mentioned starting points, namely, when the decree or order

becomes enforceable.

Before the enactment of the Limitation Act, 1963 (Act 36

of 1963) the limitation for the purposes of execution had been

dealt with under Section 48 of the Civil Procedure Code (for

short "CPC") and Articles 182 and 183 of the Limitation Act of

1908. We are not concerned with Article 183 in the present

case as the same was applicable to execution of decrees and

orders of Courts established by Royal Charter and of the

Supreme Court. Section 48 of the CPC and Article 182 covered

the execution of the decrees and orders of all the civil Courts.

Section 48 stated that "where an application to execute a

decree not being a decree granting an injunction has been

made, no order for the execution of the same decree shall be

made upon any such application presented after the expiration

of 12 years from the date of the decree sought to be executed."

Section 48 therefore provided a maximum period of 12 years

before the expiry of which any fresh application for execution

could be made and a decree ceased to be enforceable after 12

years. Article 182 governed the first and the successive

execution applications which the decree-holder could file

within such maximum period under the CPC. Article 182 also

provided that such applications should be made within a period

of three years from the various points of time specified in the

Article. A competent execution petition had to satisfy both the

requirements.

The Law Commission of India in its third report felt that

Article 182 was a very fruitful source of litigation and had

become a weapon in the hands of both the dishonest decree-

holder and the dishonest judgment-debtor. The Law

Commission in its report recommended that the maximum

period of limitation for the execution of a decree or order of any

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civil court should be 12 years from the date when the decree or

order became enforceable (which usually is the date of the

decree) or where the decree or subsequent order directs any

payment of money or the delivery of any property to be made at

a certain date or at recurring periods, the date of the default in

making the payment or delivery in respect of which the

applicant seeks to execute the decree. It was recommended

that there was no need for a provision compelling the decree-

holder to keep the decree alive by making an application every

three years. Normally, a decree-holder is to realize his decree

within a period prescribed but an exception was required to be

made to the effect that the Court may order the execution of a

decree upon application presented after the expiration of a

period of 12 years, where the judgment-debtor had by fraud or

force prevented the execution of the decree at sometime within

the 12 years immediately from the date of the application. That

Section 48 of the CPC may be deleted and its provisions may be

incorporated in the Act. It was recommended that Article 183

should be deleted.

In pursuance to the recommendations made by the Law

Commission of India Section 48 of the CPC was repealed by

Section 28 of the Act and Article 182 was replaced by the

present Article 136. As noticed earlier in this judgment, Article

136 of the Act being the governing statutory provision,

prescribes a period of 12 years when the decree or order

becomes enforceable. This Court in Hameed Joharan Vs.

Abdul Salam, 2001 (7) SCC 573, after referring to the

meaning ascribed to the word "enforce" from various

dictionaries held that the words "when the decree or order

becomes enforceable" should be read in their literal sense and

as per intention of the legislature 12 years period is to be

reckoned from the date the decree became enforceable. It was

observed that the language used by the legislature in Article

136 if read in its proper perspective must have been to clear up

any confusion that might have arisen by reason of the user of

the expression "the date of the decree or order" which was used

in the earlier Act. The requirement of the Limitation Act in the

matter of enforcement of a decree is the date on which the

decree becomes enforceable or capable of being enforced. The

intention of the legislature being clear and unambiguous a

meaning other than the literal meaning of the words used in the

statute did not arise.

Section 48 of CPC which provided for a limitation of 12

years for the execution of a decree has been replaced by Article

136 of the Act. The words 'when the decree becomes

enforceable' which find place in Article 136 were not there in

Section 48 of CPC. Because of the change brought about by

the legislature the starting point of limitation would be the date

on which the decree becomes capable of execution. The

amendment carried out in the decree in the present case was

substantial and not inconsequential like correction of clerical or

arithmetic mistake under Section 152 of CPC. The decreetal

amount was substantially reduced because of the scaling down

of the decree in terms of Act 40 of 1978. A learned Single

Judge in Fatimunnisa Begum vs. Mohd. Zainulabuddin

Saheb, AIR 1986 AP 355, relying upon the expression in Article

136 of the Act "when the decree becomes enforceable" which is

not there in Section 48 of the CPC concluded that the decree

which was subjected to an amendment can be enforced only as

amended and the period of limitation would start only from the

date of the amendment of the decree. The learned Single Judge

held as follows:

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"The next decision on which reliance was

placed was Ouseph v. Lona, AIR 1979 Ker. 14.

This decision undoubtedly supports the case of

the respondents. But I am unable to agree

with the principle enunciated in this decision.

No doubt, the principle of S. 48 is now

embodied in Article 136 which provided for 12

years period of limitation for the execution of a

decree, but the starting point must be

determined with reference to the express

language of Article 136 which says "when the

decree becomes enforceable". These words

were not there in S. 48. In my opinion, the

proper interpretation would be, to reckon the

period from the date of the decree that is

sought to be enforced, i.e., if there is an

appeal, it is the appellate Decree and if there is

an amendment, it is from the date of the

amended decree. As I said earlier, even in a

case of affirmance, if time begins to run from

the date of the appellate decree and not the

original decree, much more so in the case of a

decree which is amended as the original decree

no longer retains its form. The amendment

gives a fresh starting point of limitation. Even

though Article 136 does not contain the words

'in case of an appeal', the Courts have

construed that it is the appellate decree that is

relevant as ultimately it is that decree which

becomes capable of execution. In the case of

an amendment, the original decree no longer

retains its form and what is sought to be

executed is the amended decree. Therefore,

the words 'enforceable' must be construed with

reference to the decree that is sought to be

enforced. Reckoned from the date of the

amendment, the execution petition filed is

within time."

In our opinion, learned Single Judge in the above case has

correctly interpreted the scope of Article 136. We agree with

the view expressed that in case of amendment the original

decree no longer retains its form and what is sought to be

executed is the amended decree. The word "enforceable" has to

be construed with reference to the decree that is sought to be

enforced. In the present case, as stated above, the decree-

holder filed an application for execution in the year 1973 itself

but its proceeding were closed and adjourned sine die because

of the legislative intervention which continued till the

legislature enacted Act No. 10 of 1978 and provided for the

scaling down of the debts obtained by the agriculturists

including decrees already passed. In pursuance to this

legislative enactment the decree passed in favour of the decree-

holder was substantially scaled down and the decree was

amended on 18.10.1979 in terms of the Act No. 40 of 1978. It

is this decree which became enforceable. Prior to this date the

decree-holder could not enforce his decree because of the

legislative intervention. The original decree could not be

enforced. It is only the amended decree which could be

enforced. When there was a legislative bar for the execution of

a decree and later due to legislative intervention the decree had

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to be scaled down and amended then enforceability of decree

shall commence when the bar ceases or from the date the

decree is amended and scaled down. If the period of 12 years

is counted from the date of the amendment of the decree then

the execution petition filed by the decree-holder on 18.9.1989 is

within the period of limitation.

Further, on verification of the record we find that the

decree-holder has all through been vigilant and initiated several

proceedings to recover the decreetal amount. The earlier

execution application filed in the year 1973 was adjourned sine

die because of the legislative intervention. After the

amendment of the decree he filed execution petition Nos. 62 of

1980, 12 of 1981 and 680 of 1984. Thrice arrest warrants were

issued against the judgment-debtor. Once he was arrested but

he escaped from the custody and absconded. His property was

put to sale. Judgment-debtor deposited Rs. 50/- and Rs. 100/-

towards the payment of decreetal amount. The case was

adjourned a number of times at the request of the judgment-

debtor but in spite of the adjournments given to satisfy the

decree, his arrest and publication to sell his property, the

judgment-debtor had failed to deposit the decreetal amount.

For the reasons stated above, this appeal is accepted with

costs. Order of the High Court is set aside and that of the

executing court is restored. The executing Court shall now

proceed with the execution petition and dispose it off in

accordance with law. Since the decree is of the year 1973 we

would request the executing Court to dispose of the execution

petition on priority basis and if possible within a period of three

months from the date of the receipt of the copy of this order.

Office is directed to remit back the original record to the

executing Court immediately.