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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.