w w w . L a w y e r S e r v i c e s . i n

K. Mohammed Ibrahim, (The Petitioner is Rep. by his Power of Attorney holder Sakkeer Hussain, (Died), Palakkad) & Others v/s Mehabooba & Others

    OP(C). No. 2121 of 2011
    Decided On, 23 March 2022
    At, High Court of Kerala
    For the Petitioners: V. Chitambaresh, Sr. Advocate, P.S. Appu, C.A. Anoop, Jibu P. Thomas, P.B. Krishnan, Mathews Raju, P.M. Neelakandan, A.R. Nimod, T.C. Suresh Menon, Sabu George, P.B. Subramanyan, Advocates. For the Respondents: K. Sajan Vargheese, Advocate.

Judgment Text
1. This is Original Petition filed under Section 227 of the Constitution of India. The petitioner who filed E.P.69/2004 before the Subordinate Judge, Palakkad is aggrieved by order dated 25.02.2011 whereby the learned Sub Judge dismissed the E.P holding that the decree sought to be executed is barred by limitation.

2. Heard the learned senior counsel Adv. S.V.Balakrishna Iyer appearing for the petitioner and Adv. Sajan Varghese appearing for respondents 1 and 2.

3. It is argued by the learned senior counsel that while executing a decree, the period of limitation shall be counted from the date of amendment of the decree if the amendment sought for is not merely a clerical mistake. In support of this contention the learned counsel placed reliance on a decision of the Apex Court, reported in [AIR 2004 SCC 4822] Akkayanaicker vs. AAA Kotchadainaidu and Another. In the said decision while dealing with an execution petition where question of limitation was raised, the apex court held as under:

“ In view of the words "when the decree or order becomes enforceable" occurring in Article 136 of the Limitation Act, 1963, 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. The Decretal amount was substantially reduced because of the scaling down of the decree on 18-10-1979 in terms of Act 40 of 1978. It was the decree so amended which became enforceable. Prior to that date the decree holder could not enforce his decree because of the legislative intervention. The original decree could not be enforced. Therefore, the enforceability of the decree would commence when the bar ceased or from the date the decree was amended. and scaled down. More so when in the present case the decree-holder had all through been vigilant and initiated several proceedings to recover the decretal amount.”

4. After highlighting the legal position as such the learned Senior Counsel urged that in this matter though the decree was passed based on compromise on 28.10.1991, the decree as such found to be not executable since the same found to be materially defective for want of inclusion of the building in the schedule allotted to the petitioner by describing the same correctly. It is submitted further that accordingly amendment application was allowed and the same was allowed unopposed on 05.07.2002. Thereafter, during 2004, the present E.P was filed and therefore the E.P filed within the period of limitation. As such the learned Execution Court went wrong in non suiting the petitioner and therefore the said order is liable to be set aside in the interest of justice.

5. The learned counsel highlighted two other decisions in this regard, one is reported in [AIR 1986 Andhra Pradesh 355], Fatimunnisa Begum vs Mohammed Zainulabuddin Saheb. In paragraphs 14 of the said decision, the Andhra Pradesh High Court discussed the impact of amendment as under:

“It is lastly submitted by Mr. P. V. R. Sarma that in this case the amendment being of a formal nature, it cannot give rise to a fresh starting point of limitation. I do not agree. While it is true that an innocuous amendment such as change in cause title e.t.c. which does not affect the rights of the parties does not give a fresh starting point of limitation, a substantial amendment stands on a different footing. In the present case, the original decree is a joint decree in favour of the plaintiffs and the 2nd defendant against the first defendant. Now the decree is amended giving the plaintiff only a 9-16th share in the amount. Thus the plaintiffs are not entitled to recover the entire amount along with the 2nd defendant. Their entitlement is reduced and it is limited to 9/16th share. The decree is substantially varied. Hence time has to be reckoned from the date of the amendment and so reckoned the Execution Petition is within time.”

Similarly in another decision reported in [AIR 1969 Patna 85], Ramaya Dubey and Others vs. Chitradeo Rai and Others, in paragraph 7 after referring the earlier decisions in this point, the Patna High Court concurred with the legal possession as canvassed by the learned counsel appearing for the petitioner.

6. Dispelling this contention, the learned counsel for the respondent would argue that on perusal of the documents placed by the respondents along with the reply affidavit filed in this petition would make it clear that the amendment sought for by the petitioner, which led to amendment incorporated on 05.07.2002, it has been categorically stated that amendment by mistake sought to be corrected. It is submitted that going by the ratio in Akkayanaicker Case (supra) when the amendment is brought into with intention to correct a clerical or arithmetical mistake, the same by itself shall not extend the period of limitation and the period of limitation shall extend only in cases where the amendment itself shall be substantive and decisive in nature. In this regard, the learned counsel pointed out Ext.R1(c), the affidavit in support of the amendment application I.A No.2395/2001. On reading the averments therein, there is recital that the number of the building sought to be incorporated in A schedule was omitted to be included in the compromise by mistake. However, it is relevant to note that in both items A and B the number of building lying thereon not incorporated in the compromise entered into the parties and thereafter by way of amendment those buildings got incorporated. If so, it has to be held that the decree passed on the basis of the compromise without amendment cannot be executed in its letter and spirit and therefore only after getting inclusion of the correct building numbers of the property in the compromise decree, the execution will be possible.

7. The learned counsel for the respondents also placed a reliance on R1(b) the original compromise as well as R1(e) the execution petition. The learned counsel argued that even in the execution petition, in column No. 4, the date of the decree is shown as 28.10.1991 and there is no mention therein regarding the fact that the decree sought to be executed is one as amended on 05.07.2002. I am not inclined to give much emphasis on this argument, since the same is an omission, where admittedly decree was amended on 05.07.2002.

8. He also placed 'Commentaries on The Limitation' 6th Edition (2004) by R.Mithra dealing with the effect of amendment of the decree on the starting point of limitation. The said book after referring various decisions, the principle governing starting point of limitation has been discussed. For clarity paragraph 26th of the above book also is extract hereunder.

“26. Effect of amendment of the decree on the starting point of limitation.- It is not every amendment of the decree, which gives a fresh start to limitation: an amendment, which gives a fresh start to limitation, must be an amendment of a substantial character as affecting the rights of the parties. For example, in Kalanand Singh v. Raj Kumar Singh, it was held that an amendment of a rent decree, which consisted merely of a correction in the rate of rent, but did not alter the amount of rent decreed, did not provide for a fresh starting point of limitation. Similarly, in Rameshwar Narain Misra v. Raghunandan Purbey, it was held that an amendment consisting of a variation of the amount of costs to the extent of Rs 1/2 was really a clerical error or a trifling arithmetical error, and not an amendment of the decree within the meaning of Art. 136. Speaking for the Court in that case, Fazl Ali, J. (as he then was) made the Following observation:

"The amendment, which gives a fresh start to limitation must be an amendment in the real sense of the terms, that is of some substance as affecting the rights of the parties, and not merely the correction of a clerical error or a trifling arithmetical mistake such as the Court might, at any time, correct of its own motion."

On the same principle, it was held, in Kesho Singh v. Bhuneshwari Kuer that an amendment of a substantial nature gives a fresh start to limitation. In this case, the decree, as originally passed, was a money decree diving to the decreeholder the right to sell the right, title and interest of the judgment-debtors in the holdings. By the amendment the decree-holder was conferred the right to sell the holding of the judgment-debtors, and not merely their right, title and interest therein. In these circumstances, their Lordships held that the starting point of limitation was the date of the amended decree, and not the date of the original decree.”

9. The legal position emerges is that when there is an amendment of the decree which is not in the nature of clerical or arithmetical mistake, the date of amendment is the starting point of limitation and the amendment sought for is only clerical or arithmetical mistake, the limitation would start from the date of the original decree itself.

10. As argued by the learned counsel for the respondents 1 and 2, in the affidavit in support of the amendment petition, there are averments to the effect that the mistakes are only clerical mistakes. However, it is the settled law that mere nomenclature of anything would have any predominance unless the contents of the document if read together would justify the nomenclature. To put it otherwise, even though, in the amendment application, inclusion of correct building number so as to make the compromise decree effective and executable, there is mention that those are only mistakes. However, a practical application of mind would reveal that those are amendments materially changing the description of the scheduled items and inclusion of the room numbers in the schedule should have been necessary to execute the decree. If so, one cannot say that the same is only a mistake to be read as one which has no binding force in the matter of deciding the starting point of limitation. Therefore, it has to be hel

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d that the amendment brought into the decree herein, as on 05.07.2002, is not mere clerical or arithmetical mistake, but it was intended to include correct room numbers in the schedule so as to make the decree executable in its letter and spirit and otherwise the decree is not executable at all. In view of the matter, I am of the view that, in the case on hand, the amendment brought in to the compromise decree is not a mistake to count the starting point of limitation from the date of the original compromise decree, but the amendment is vital and decisive and without which, the decree could not be executed at all and therefore the limitation would start to run from the date of the amended decree. Therefore, the execution court went wrong in dismissing the execution application holding that the execution petition is barred by limitation. Therefore, I am inclined to set aside the order impugned. In the result, the Original Petition stands allowed. The order impugned is set aside. E.P No.69/2004 restored back to file with direction to the execution court to execute the amended decree in accordance with law.