Madras High Court
Gnanambal vs Perumal Pillai And Anr. on 9 January, 1992
Equivalent citations: (1992)2MLJ60
ORDER Srinivasan, J.
1. There is no merit in this revision petition. The first respondent filed the suit O.S. No. 87 of 1968 on the file of Sub Court, Cuddalore, and obtained a decree on 6.8.1969 against the petitioner and the second respondent. That was challenged in Appeal and it was confirmed on 16.11.1970 by the dismissal of the appeal. Thereafter, the petitioner filed a suit O.S. No. 194 of 1972 for setting aside the decree and for restraining the decree-holder from executing the decree. Injunction was granted during the pendency of the suit stopping execution. Ultimately, the suit was dismissed. An appeal was filed against it in A.S. No. 34 of 1975 which was dismissed on 30.8.1978. The matter was brought to this Court in S.A. No. 531 of 1979 which was dismissed on 30.10.1983. Thus, the decree holder was not in a position to execute the decree from 6.8.1969 to 30.10.1985.
2. Apart from that, the petitioner claimed benefits of the Debt Relief Acts 4 of 1938, 10 of 1975 and 15 of 1976. She got also an order of stay of execution proceedings from 19.11.1974 onwards. The moratorium was in force for 4 years and 9 days. If that period is added to the period of 12 years normally allowed for execution the last date for filing the execution petition was 16.11.1986.
3. The decree-holder filed the present execution petition on 8.7.1986. He brought some of the properties which were attached during the pendency of the suit to sale. These ales were held on 16.4.1987 and 22.2.1988. Applications were filed by the petitioner for setting aside the sales on several grounds. One of the grounds was that the execution petition was barred by limitation. By order dated 17.8.1990 the Subordinate Judge, Cuddalore, set aside the sales on the ground that there was no subsisting attachment on the dates of sales. He took the view that the attachment was affected during the pendency of the suit and it came to an end when a prior execution petition was dismissed because of the order of injunction in O.S. No. 194 of 1972. However, the Subordinate Judge negatived the plea of the petitioner that the execution proceeding was barred by limitation. He wrote a detailed order holding that the execution petition was in time. He also held that the properties were liable to attachment.
4. After the setting aside of the sales, the decree-holder filed a memo on 15.10.1990 for amending the execution petition by including a prayer for attachment of the properties set out therein. The amendment was granted. It is against the said order, the present revision has been filed.
5. It is the contention of the petitioner that the execution petition is itself barred by limitation. That contention is not available to the petitioner in view of the order dated 17.8.1990 in E.A. Nos. 364 of 1987 and 220 of 1988 to which I have already made a reference. Even apart from that order, it is clear from the facts stated above that the execution is in time and the plea of Limitation is without any substance.
6. It is next contended that in any event when the memo was filed for amendment of the execution petition, it was very much out of time and it is as if a new relief is sought in the execution proceeding which is not available to the decree holder. There is no substance in this contention. So long as the execution petition is pending and it has been filed within time, it is open to the decree-holder to have the process of execution carried out by attaching the properties of the judgment debtor. There is no separate period of limitation for a prayer for attachment. If the execution petition is within the period of limitation, any prayer for enabling the court to carry out the execution and realise the fruits of the decree is not subject to any period of limitation. Such a prayer can be made so long as the execution petition is pending.
7. Even otherwise, an execution petition can certainly be amended even if the relief sought is barred by limitation. A Full Bench of the Andhra Pradesh High Court in D. Seshaiah v. Veerabhadrayya , held that petitions for amendment of execution proceedings are on par with petitions for amendment of pleadings in a suit. Learned Judges have taken the view that the court has a discretion to grant an amendment even if by granting such amendment the right of the respondent which had accrued to him by virtue of the law of limitation will be effected. The relevant discussion is found in the following passage:
The principles on which the power to amend should be exercised by now are fairly well settled. The principles underlying Order VI, Rule 17, C.P.C. are substantially the same as underlying Section 153, C.P.C. The width and the amplitude of this power is well illustrated in L.J. Leach and Company Ltd. v. Jardine Skinner and Company , P.M. P atil v. K.S. Patil and A.K. Gupta & Sons v. Damodar Valley Corporation .
One class of cases in which it is quite often pointed out that amendment might work injustice to the other side is where it takes away from that party a night accrued to him by expiration of certain time. In such class of cases it is now thoroughly well established that ordinarily a decree-holder will not be allowed to amend his execution on petition by including a new relief which since the date of decree has become barred by the provisions prescribing limitation.
There is no reason to make any distinction between cases to which Section 48, C.P.C. or Article 182 applied on the one hand and the cases covered by Section 3 of the Indian Limitation Act read with relevant entries in the schedule to the Indian Limitation Act.
It is a mistake to think that Section 48, C.P.C. lays down any inflexible rule in not allowing any amendment whatever may be the circumstances of the case, to the execution petition merely on the ground that if permitted it would be contrary to Section 48, C.P.C. or Article 182 of the Limitation Act. The same argument can relevantly be raised in regard to suits in which amendment is sought, and is quite often so raised. The two situations therefore are similar and not different in so far as the principle underlying the amendment is concerned. In either case the amendment would not normally be allowed if the effect of the amendment is to deprive the other side of a valuable right to plead limitation. Nevertheless, there can be exceptional cases where special circumstances demand that in order to do substantial Justice between the parties and with a view to settle all disputes necessary for the effective disposal of the cases amendment may be allowed. The rule therefore that ordinarily in such cases amendment should not be allowed is not a universal rule and in peculiar or special circumstances an amendment may be allowed even where it has the effect of depriving the other side of his right to plead limitation. What follows is that the question of limitation, is one of the factors to be taken into account in the exercise of the courts discretion as to whether the amendment should be allowed. It would be erroneous to confuse this discretion of the court with its power to permit amendment. It does not affect the power of the court to order amendment, if that is required in the interests of justice.
8. In any event, I am of the view that on the facts of this case, justice has been rendered to the decree-holder. It is seen that the judgment debtor has kept the decree-holder in abeyance for nearly 21 years by now and prevented him from executing the decree. In such circumstances, I refuse to exercise my discretionary power under Section 115, C.P.C A bench of this Court has held in S.N. Kuha v. P.P.I. Vaithyanathan 1988 T.L.N.J. 1, that if the order of the court below is in the interest of Justice, this Court can refuse to interfere under Section 115, C.P.C. even if the court below had no jurisdiction to pass such an order. Applying that principle I hold in this case that the order of the court below does not warrant any interference as justice has been done to the decree-holder.
9. The civil revision petition is dismissed with costs.