Kerala High Court
Muhammed Kunju vs Lancilad P. Gomez on 7 June, 2001
Equivalent citations: AIR 2002 KERALA 74, ILR(KER) 2001 (3) KER 157, (2001) 2 KER LJ 334, (2001) 3 KER LT 21, (2002) 1 ICC 99, (2002) 1 CURCC 298
Author: P.K. Balasubramanyan
Bench: P.K. Balasubramanyan
ORDER P.K. Balasubramanyan, J.
1. Judgment debtor No.3 in O.S. 444 of 1953 on the file of the Munsiff's Court of Attingal filed this revision challenging the order of the executing court rejecting his contention that the execution proceeding initiated by the decree-holder was not barred by limitation. Pending the revision, judgment debtor NO.3 died and his legal representative have been impleaded as additional petitioner 2 to 10.
2. The decree-holder filed O.S. 444 of 1953 in the Munsiff's Court for redemption of a mortgage. That suit was decreed on 31.5.1958. The decree-holder filed E.P. 461 of 1958 for execution of the decree of the trial court. Some of the defendants field an appeal, A.S. 205 of 1958 before the lower appellate court challenging the decree in O.S. 444 of 1953. In that appeal they sought for and obtained an interim order of stay of execution of the decree of the trial court pending disposal of the appeal. In the light of the order of stay granted by the appellate court, the executing court dismissed E.P. 461 of 1958 on 27.10.1958 without going into the merits of the claim for execution. It is not disputed by Senior Counsel appearing for the revision petitioners that this dismissal of E.P. 461 of 1958 by the executing Court could be treated only as a ministerial or statistical disposal.
3. The appeal A.S. 205 of 1958 was subsequently dismissed by the appellate Court by judgment and decree dated 9.7.1959. The dismissal of the appeal and consequently the decree for redemption passed in the suit became final. The decree holder filed E.P. 53 of 1978 only on 22.3.1978 praying that E.P. 461 of 1958 dismissed earlier in view of the order of stay granted by the lower appellate Court may be revived and the execution proceeded with. The predecessor of the revision petitioners raised objections. One of the main contention he raised was that the decree in O.S. 444 of 1953 passed on 31.5.1958 by the trail court having been confirmed by the decree of the lower appellate court on 9.7.1959 in A.S. 205 of 1958, the decree of the trial Court had merged in the appellate decree and in that situation the only decree capable of being executed was of the appellate decree. The trial court decree could not be executed after it has merged with the decree of the appellate court. The execution petition having been filed more than 12 years after the decree in A.S. 205 of 1958, the execution was clearly barred by limitation. It was contended that since the decree passed by the trial court could not any more be executed in view of the merger of that decree with that of the appellate court,m no question of reviving E.P. 461 of 1958 arose. That execution petition could not be proceeded with in the circumstances. The executing Court held that the earlier execution petition, E.P. 461 of 1958, could not be revived in the circumstances and cold be proceeded with and hence the objection that the execution was barred by limitation could not be sustained. The Court referred to a decision of the Supreme Court and a decision of this Court in support of the position adopted by it. It is this decision of the executing Court that is challenged in this revision on the ground that it is vitiated by material irregularity and even otherwise illegal and unsustainable.
4. Learned Senior Counsel appearing for the revision petitioner submitted that in a case where the decree of the trial Court has merged with the decree of the appellate court, the decree that is executable is the decree of the appellate Court and not of the trial Court. Counsel submitted that the doctrine of merger clearly leads to that legal position. In this case even assuming that E.P. 461 of 1958 was disposed of only for statistical purposes and it could be revived in appropriate cases, the same would not help the decree holder because the decree holder cannot seek to execute the decree of the trial Court in view of the merger of that decree with that of the appellate court. Counsel submitted that even if revived, E.P. 461 of 1958 had to be dismissed on the ground that it is not maintainable since the prayer in the execution petition was to execute a non-existent decree or a decree that had no independent existence in view of its merger with the decree of the appellate Court. Counsel for the decree holder submitted that since E.P. 461 of 1958 was not judicially disposed of and was disposed of only for statistical purposes, the same could be revived and once it is revived, it would only mean that the prayer in the execution petition is defective in that what is sought for, is execution of the decree of the trial Court, whereas the prayer ought to be for execution of the decree of the appellate Court and such a defective prayer cold always be permitted to be amended by the Court in the interests of justice. Counsel, therefore, submitted that the executing Court was justified in holding that E.P. 461 of 1958 was still pending, could be revived and the present petition filed is only a reminder to the Court to take up and dispose of E.P. 461 of 1958 judicially. Counsel submitted that there was no question of any limitation in the matter of reminding the Court of dispose of a petition already pending on its file and not disposed of judicially.
5. In Padmanbha Nadar Velayudhan Nadar v. Narayanan Nadar Raman Nadar 1949 KLT 191, it was held that when there was an affirmation or variation of a decree of the trial court by a decree of the appellate Court, the execution petition filed on the basis of the decree of the trial court ceased to have any operative force with the supersession of that decree by the appellate Court decree. In Ekram Hussain v. Mt. Umatul Rasul AIR 1931 Patna 27, the Court was prepared to construe or treat the petition for executing the decree of the court of first instance, which was affirmed in appeal, as one to execute that part of the decree affirmed in appeal. In Ujagar Lal Shankar Dayal (01) 4 OC 333, it was held that in such a situation the appellate Court decree alone could be executed where it merely affirmed the decree of the trial Court. But in such a case, the alteration of the application for execution by substitution of the appellate decree in the place of the original decree is only a technical and formal amendment and the Court called upon to execute the decree can always permit or direct the amendment of the execution petition. In Bhargavan v. Halima Bivi, 1964 KLT 532, His Lordship Justice S. Velu Pillai refused to follow the decision of the Travancore Cochin High Court in Padmanabha Nadar Velayudhan Nadar v. Narayanan Nadar Raman Nadar (1949 KLT 191), and preferred to follow the approach made by the Patna High Court and the Oudh Chief Court and took the view that it was open to the executing court to revive the original execution petition and permit it to be amended so as to make the prayer consistent with the appellate decree and seek further execution of that decree.
6. In Meenakshi Amma v. Ramakurup (1973 KLT 489), a Division Bench of this Court had occasion to consider a similar question. Referring to the decision in Padmanabha Nadar Velayudhan Nadar v. Narayanan Nadar Raman Nadar (1949 KLT 191) and Bhargavan v. Halima Bivi (1964 KLT 532), their Lordship held:-
"Where there is confirmation, variation or reversal of a decree of a lower court by an appellate court, the executable decree thereafter is certainly the appellate decree-the affirmed decree, the varied decree or the reversed decree. But, that by itself does not put an end to the execution petition which had already been filed seeking to execute the decree of the original Court. On the passing of the appellate decree, the pending execution petition becomes defective, but the defect can be set right and the same execution petition can be continued. In other words, the passing the appellate decree cannot have any other effect on the pending execution petition - cannot have the effect of putting an end to it."
(Headnote) With respect we are inclined to agree with the view so expressed by the Division Bench in the above case. The learned Single Judge who referred this Revision to the Division Bench also noticed the above Division Bench decision and thereafter made the reference on the basis of an argument on behalf of the revision petitioner that the scope of provisions contained in Art. 136 of the Limitation Act of 1963 had not been taken note of. Under Art. 136 of the Limitation Act time for execution runs from the date when the decree becomes enforceable. What was argued before the learned Judge was that Art. 182 clause (v) of the Limitation Act of 1908 was not more available and there could be no concept of 'step in aid' in the matter of execution and the previous application for execution has no consequence. With respect to the learned Judge we feel that non-existence of a provision like Art. 182 clause (v) of the Limitation Act of 1908 cannot have any impact on the question that falls to be decided and that was decided by the Division Bench in Meenakshi Amma v. Rama Kurup (1973 KLT 489). Even going by art. 136 of the Limitation Act of 1963, the time to execute the decree passed by the trial court starts to run from the date of that decree. The decree holder has filed an application for execution of that decree within the time provided for by Art. 136 of the Limitation Act 1963. Even while that execution petition was pending, the decree that was sought to be executed, the trial court decree was confirmed by the appellate decree. The decree holder therefore gets a fresh starting point of limitation from the date of the appellate decree with which the decree of the trial court has merged. Instead of filing a fresh execution petition, what the decree holder seeks to do is to have the prayer in his execution petition filed on the basis of the decree of the trial court, amended, so as to make the prayer therein consistent with the modified or revised appellate decree in the suit. The aspect sought to be argued before the learned Single Judge based on Art. 136 of the Limitation Act of 1963, of the absence of a provision like clause (v) of Art. 182 of the Limitation Act of 1908, doe snot appear to have any relevance on this question. The question is whether on the decree being varied, modified or confirmed the execution petition already filed can only be dismissed or it can be permitted to be amended. The principle is that an amendment should as far as possible be allowed so as to avoid multiplicity of proceedings. Here, the Court can avert the filing of a fresh execution petition and the taking of all steps anew therein by permitting the decree holder to amend the execution petition which has already been filed and in which invariably the judgment debtor had already appeared and was contesting the proceeding. Amendment is always allowed by a court to shorten litigation. There is nothing in Art. 136 of the Limitation Act which interferes with the power of the Court to permit amendment of the prayer in the execution petition. We are of the view that the aspect on the basis of which the reference is made, is an aspect that cannot control the power of the executing court to permit the amendment of the prayer in an execution petition so as to bring it in conformity with the modified decree passed in appeal. In our view, the respect, Meenakshi Amma v. Rama Kurup (1973 KLT 489) is rightly decided.
7. No decision was brought to our notice which took the view that the executing court cannot permit the prayer int he execution petition to be amended so as to make the prayer consistent with the ultimate decree that is passed in the suit. The fact that an ineligible prayer had been made int he execution petition or that a prayer made in the execution petition had become not granted due to the development that have subsequently taken place,are no ground to hold that the existing execution petition should be ignored or that its filing and pendency cannot be taken not of. it is in such a situation that the court exercises its power to permit the party to amend the petition or the prayer portion therein so as to make it consistent with the relief he is found entitled to get in the litigation. That salutary power is not in any manner interfere with by the fact that the decree of the trial court on the basis of which execution petition was originally filed, had subsequently merged with the decree of the appellate court and only the appellate decree could be executed or only the appellate decree is the executable decree. We are of the view that the extreme view taken by the Travancore-Cochin High Court in Padmanbha Nadar Velayudhan Nadar v. Narayanan Nadar Raman Nadar (1949 KLT 191) cannot be accepted as laying the correct law.
We therefore, find no reason to interfere with the order of the executing court in exercise of our jurisdiction under S. 115 of the Code of Civil Procedure. We therefore confirm the order of the executing court and dismiss this Revision.