AKKAYANAICKERversusA.A.A. KOTCHADAINAIDU AND ANR.

A                            AKKA YANAICKER
                                    v.
                    A.A.A. KOTCHADAINAIDU AND ANR.

                             SEPTEMBER 23, 2004

B                  [ASHOK BHAN AND S.H. KAPADIA, JJ.]

          Limitation Act, 1963-Artic/e 136-Execution Petition-Limitation-
    Computation-Legislative bar for execution ofdecree-Amendment ofdecree
    by legislative intervention-Execution petition, after lifting of the bar and
    amendment ofdecree-Held: Limitation period would be computed from the
c   date the decree was amended and not from the date of decree as decree
    became enforceable only after the amendment-The word "enforceable" in
    the. Article is to be construed with reference to the decree sought to be
    enforced-Tamil Nadu Indebted Agriculturists (Temporary Relief) Act, 1975-
    Sections 3, 4 and 5-Tamil Nadu Indebted Agriculturists (Temporary Relief)
D   Act, 1976-Tamil Nadu Debt Relief Act, 1978.

          Recovery suit filed by appellant-decree holder against respondent-
    judgment debtor was decreed on 2.5.1973. Execution petition filed in
    1973 was closed due to legislative intervention by enactment of Tamil
    Nadu Indebted Agriculturists (Temporary Relief) Act, 1976. Thereafter
E   by virtue of Tamil Nadu Debt Relief Act, 1978, on application of the
    Judgment Debtor, Executing Court scaled down the decree in 1979.
    Thereafter decree holder filed execution Petition in 1989. Judgment
    debtor objected the same as barred by limitation u/A 136 of Limitation
    Act, 1963 as it was filed beyond 12 years. Executing Court allowed the
    petition holding that the limitation would start from the date the decree
F   was amended as it is from that date the decree was enforceable. High
    Court held that the limitation period was to be counted from the date
    of original decree.

          In appeal to this Court appellant-decree holder contended that the
G   point of limitation is the date when the decree becomes enforceable and
    that in the present case the decree become enforceable when the legislative
    bar was raised and the decree was amended due to legislative intervention.

         Allowing the appeal, the Court
                                                                                   1-
H        HELD: The word "enforceable" in Article 136 of Limitation Act,
                                638
    AKKA YANAICKER v. A.A.A. KOTCHADAINAIDU [BHAN, J.] 639

1963 has to be construed with reference to the decree that is sought to          A
be enforced. In the present case the decree-holder filed an application
for execution in the year 1973 itself but its proceedings were closed and
adjourned sine die because of the legislative intervention which continued
till the legislature enacted Tamil Nadu Debt Relief Act, 1978 and
provided for the scaling down of the debts obtained by the agriculturists        B
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 Debt Relief Act. 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.      C
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 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              D
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. (645-E-H; 646-A]

     CIVIL APPEL LA TE WRISDICTION : Civil Appeal No. 160 of 1999.
                                                                                 E
     From the Judgment and Order dated 29.1.98 of the Madras High Court
in C.R.P. No. 3540 of 1992.

     R. Nedumaran and M.A. Chinnasamy for the Appellant.

     Rishiraj Borooah and K.K. Mani for the Respondents.                         F

     The Judgment of the Court was delivered by

      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
                                                                                 G
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. 322of1972 seeking a decree in the sum of Rs. 18,912 along         H
    640                   SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R.

A   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
B
    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
c   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
    proceedi~gs 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
D   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 su·ch suit, the time during which the
    institution of the suit or making of the application was barred by Section 3
E   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.
F
          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 possibie advantage may result to the State in the
G   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
H   a decree had already been instituted '1Ild Section 5 provided for exclusion of
    AKKAYANAICKER v. A.A.A. KOTCHADAINAIDU [BHAN, J.] 641

time in computing the period of limitation or limit of time prescribed for a      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 I 0 of 197 5
and with similar provisions of bar of institution of suits and the applications
                                                                                  B
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 decre~ dated 2.5.1973 in terms of Act 40         c
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. 399of1991 in E.P. No. 412 of
                                                                                  D
 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        E
 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. 399of1991 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
                                                                                  F
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            G
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. l 0.1979. Aggrieved against the aforesaid, special leave petition was
filed by the decree holder in which the leave has been granted.
                                                                                  H
    642                   SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R.

A        It may be mentioned here that the decree holder filed execution petitions
    62of1980, 12of1981 and 681of1984. 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, 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
B
    adJoumed 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.

C        Shri Nedumaran, learned coun~el 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-
D
          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
E   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,
F
    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 fqr the purposes of execution had been dealt with under Section
G   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
H   orders of all the civil Courts. Section 48 stated that "where an application
    AKKA YANAICKER v. A.A.A. KOTCHADAINAIDU [BHAN, J.] 643

to execute a decree not being a decree granting an injunction has been made,        A
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.
                                                                                    B
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.
                                                                                    c
       The Law Commission of India in its third report felt that Article 182
was a very fruitful source oflitigation 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 civil court sh<Juld be    D
 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              E
compelling the decree-holder to keep the decree alive by making an
application every three years. Normally, a decree-holder is to T>Oalize 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       F
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.
                                                                                    G
       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.       H
    644                  SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R.

A   This Court in Hameed Joharan v. 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
B   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
C   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
D   '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
E   correction of clerical or arithmetic mistake under Section 152 ofCPC. The
    decreetal amount was substantially reduced because of the scaling down of
    the decree in terms of Act 40of1978. A learned Single Judge in Fatimunnisa
    Begum v. 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
F
    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:

             "The next decision on which reliance was placed was Ouseph v.
G            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
H
    AKKA YANAICKER v. A.A.A. KOTCHADAINAIDU [BHAN, J.] 645

        which says "when the decree becomes enforceable". These words             A
        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
                                                                                  B
        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    c
        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
                                                                                  D
        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        E
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. 40 of 1978 and provided for the scaling
down of the debts obtained by the agriculturists including decrees already
                                                                                  F
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. l 0.1979 in tenns of the Act No. 40 of 1978. It is this c!ecree
which became enforceable. Prior to this date the decree-holder could not
enforce his decree because of the legislative intervention. The original decree   G
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 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          H
     646                   SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R.

A     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 sev.eral proceedings to recover the
B    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
c    absconded. His property was put to sale. Judgment-debtor deposited Rs. 50
     and Rs. l 00 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 j?dgment-debtor had failed to deposit the decreetal
     amount.
D
            For the reasons stated above, this appeal is accepted with <;:osts. 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
E    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.
F
     K.K.T.                                                        Appeals allowed.