Kerala High Court
K. Rajammal vs State Bank Of Mysore on 27 July, 1992
Author: K.S. Paripoornan
Bench: K.S. Paripoornan
JUDGMENT K.S. Paripoornan, J.
K.S. Paripoornan, J.
1. The respondent in E. A. No. 328 of 1991, in E. P. No. 121 of 1981, in O. S. No. 77 of 1974 (judgment-debtor), Sub-Court, Kochi, is the revision petitioner. The decree-holder-petitioner in the court below is the sole respondent in this revision. The decree-holder filed an application to amend the execution petition. It was stated that there is an omission to claim interest for the entire principal amount in the original execution petition. So, it is necessary to allow the petitioner to amend the execution petition. The revision petitioner (respondent in E. A. No. 328 of 1991) objected to the above and stated that the petition lacks bona fides. The court below allowed me amendment. The judgment-debtor has come up in revision. I heard counsel.
2. Counsel for the revision petitioner, Mr. R. D. Shenoi, vehemently contended that the prayer to amend the execution petition is barred by limitation. The court below was in error in allowing the amendment. Counsel for the decree-holder (respondent) submitted that the petition to amend the execution petition was filed bona fide, and there is no bar of limitation.
3. The decree in O. S. No. 77 of 1974 was passed on October 23, 1978. E. P. No. 121 of 1981 was filed on November 25, 1981. The court below held that the petition for amendment is filed within twelve years from the date of the execution petition and so is not time-barred. Counsel for the revision petitioner contended that it is a clear error. It was submitted that under Article 136 of the Limitation Act, 1963 (formerly Section 48 of the Code of Civil Procedure) (now repealed), the prayer for amendment should have been made within twelve years from the date of the decree. Since the petition for amendment was filed more than twelve years from the date of decree, it is patently time-barred. Mr. Shenoi placed reliance on Order 21, Rule 11 of the Code of Civil Procedure read with Order 21, Rule 17 of the Code of Civil Procedure and the decisions reported in Marulasiddappa v. Lakshmipathi, AIR 1950 Mys 64 [FB], Narayanan Damodaran Namboodiri v. Kuriathu Yohannan, AIR 1957 Trav-Coch 109 [FB] and Maharaja Pateshwari Prasad Singh v. Aditya Prasad, AIR 1963 All 398, para 40, and submitted that the amendment petition should be considered to be a "fresh" execution petition and so time-barred. Counsel for the decree-holder (respondent) submitted that the decree allowed interest for three items, that, in the earlier execution petition filed, by a mistake, interest was claimed only for one item, and by way of amendment, the interest not claimed for the two other items is now claimed and that tbe amendment seeks relief which is similar in scope and character to E. P. No. 121 of 1981 which is still pending. The court has got ample powers to allow the amendment. This can be done even after the period of limitation. Reliance was placed on the decision in Shekendarali Meah v. Abdul Gafur Choudhury, AIR 1942 Cal 306, Rajendra Prasad Agarwalla v. Allahabad Bank, AIR 1987 Cal 262, Rameshwar Lal Amar Chand Choudhary v.
Commercial Co-operative Bank Ltd., AIR 1972 Raj 46, para 28 and Banerjee's Law of Execution, third edition, page 393.
4. The important facts in the case are as follows : The suit was for realisation of the balance amount due as per accounts, by sale of immovable property. The suit was filed in 1974. It was decreed on October 23, 1978. Amounts were decreed on three counts, viz., (i) cash credit pledge, lock and key account and interest thereon from April 1, 1973, to July 17, 1974 ; (ii) cash credit pledge (mundi type) account and interest thereon from April 1, 1973, to July 17, 1974 ; and (iii) medium-term loan account and interest thereon from April 1, 1973, to July 17, 1974.
5. In E. P. No. 121 of 1981, in column 10, interest at 6% from July 18, 1974, to October 23, 1978, on the principal amount of Rs. 44,837.88 was claimed (Rs. 7,879.02). This principal amount of Rs. 44,837.88 is the amount decreed under item No. 1 above under cash credit pledge, lock and key account. In column 9, the entire amount decreed on the three counts and the interest on those three counts was claimed (Rs. 78,873.83). The total amount so claimed included the principal amount due under three heads and interest on those three heads for a period up to July 17, 1974. For the period from July 18, 1974, in column 10 of the execution petition, interest was claimed only for item No. 1, cash credit pledge, lock and key account. Interest was not claimed for the amount decreed under items Nos. 2 and 3 (cash credit pledge (mundi type) account and medium-term loan account). There was omission to claim interest from July 18, 1974, on items Nos. 2 and 3 stated above. So, if interest on those two items is also to be included in column 10, the interest at 6% from July 18, 1974, till October 23, 1978, should, be on the principal amount of Rs. 69,941.13 instead of the principal amount of Rs. 44,837.88. The principal amount under the three items would come to Rs. 69,941.13. Briefly stated, there was omission to claim interest on two items which the petitioner is entitled to get as per the decree. The decree-holder stated that, due to a mistake and inadvertent omission, in column 10, interest was claimed on the principal amount of Rs. 44,837.88 representing item No. 1 alone ; cash credit pledge, lock and key account and the principal amounts under items Nos. 2 and 3 (cash credit pledge (mundi type) account and medium term loan account) were not included in the principal amount for claiming interest. The court below accepted the plea of the decree-holder and held that the decree-holder is entitled to the interest claimed in the original execution petition and also the interest awarded in the other two loan transactions. This was so held on a perusal of the decree and the execution petition. In this view, it was held that this is a fit case to allow the decree-holder to amend the execution petition by supplying the omission. Since there was delay in filing the amendment petition, the decree-holder was directed to pay cost of Rs. 200.
6. The import of Article 136 of the Limitation Act, 1963, and Section 48 of the Code of Civil Procedure is that afresh execution petition/application filed after twelve years of the decree will be patently time-barred. The bar cannot be circumvented even by filing an application for amendment or an application seeking to revive a pending application. Such method to overcome the bar of limitation will not be recognised by the courts. But, it should be clearly noticed that it is a fresh execution petition or application that is barred. An application to revive a pending or earlier application or a petition to amend the execution petition already filed and which is pending cannot be said to be a "fresh" execution petition. The mere fact that the petition is to revive an earlier execution petition or to amend the execution petition, by itself, is not conclusive. The question is whether, in fact and in substance, the application so filed can be considered to be a "fresh" application, for the purpose of Article 136 of the Limitation Act, 1963, and Section 48 of the Code of Civil Procedure (now repealed). The matter is seen discussed in the Full Bench decision of the Mysore High Court in Marulasiddappa's case, AIR 1950 Mys 64. One of the decisions relied on therein is the decision of the Allahabad High Court reported in Bandhu Singh v. Kayastha Trading Bank Ltd. [1931] AIR 1931 All 134. The matter is also discussed in detail by the Full Bench of the Travancore-Cochin High Court in the decision in Narayanan Damodaran Namboodiri's case, AIR 1957 Trav-Coch 109. In the said decision, the decision of the Allahabad High Court reported in Bandhusingh's case, AIR 1931 All 134, the decision of the Madras High Court reported in Venkata Lingama v. Rajagopala Venhata Narasimha, AIR 1947 Mad 216 and other decisions have been adverted to. It is unnecessary to discuss the decisions of various High Courts since the matter is now concluded by a decision of the Supreme Court in Pentapati China Venhanna v. Pentapati Bangara-raju, AIR 1964 SC 1454 at page 1458 para 9. Subba Rao J., delivering the judgment of the Bench, stated the law thus :
". . . An application made after 12 years from the date of the decree would be afresh application within the meaning of Section 48 of the Code of Civil Procedure, if the previous application was finally disposed of. It would also be afresh application if it asked for a relief against parties or properties different from those proceeded against in the previous execution petition or asked for a relief substantially different from that asked for in the earlier petition".
7. Judged by the above test laid down by the Supreme Court, it cannot be said that the amendment prayed for in E. A. No. 328 of 1991, in E.P. No. 121 of 1981, is a "fresh" application. The decree is for recovery of money with interest, by sale of immovable properties. The money decree was passed on three different counts with interest. In the first execution petition filed, there was a claim for interest on one of the items decreed. There was an omission to claim interest for the other two items decreed. That is now sought to be included by way of an amendment. The relief claimed is against the same judgment debtor. It cannot be said that the relief is claimed against parties or properties different from those proceeded against in the previous execution petition or for a relief substantially different from that asked for in the earlier petition. It should be stated that the amendment prayed for is similar in scope and character to the relief claimed in the execution petition, which is still pending. No new relief is asked for. The relief asked for by way of amendment is substantially similar and akin to the relief claimed in the original execution petition itself. The party against whom the relief is sought is also the same. This is not a case where a new relief is added or any new property or party is sought to be proceeded against. So, it cannot be said that the amendment prayed for should be considered as a fresh application for execution. The amendment was properly allowed by the court below. The plea of bar of limitation raised by the judgment debtor (revision petitioner) should fail. There is a detailed discussion on the above aspect in U. N. Mitra's Law of Limitation and Prescription 1992, tenth edition (volume 2) at page 1975 and Rustomji on Limitation 1992, seventh edition, at page 1395.
8. This order of the court below allowing the amendment is perfectly justified and proper. The order passed by the court below dated February 5, 1992, does not merit interference in revision, as the court below has passed the order only in accordance with law. The revision is without merit. It is dismissed with costs.
Counsel fee Rs. 500.