IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE THIRTEENTH DAY OF AUGUST TWO THOUSAND AND NINE PRESENT THE HON'BLE SRI JUSTICE C.V.RAMULU CRP Nos. 6466 of 2003 and 2412 of 2007 CIVIL REVISION PETITION NO : 6466 of 2003 Between: Kasala Balaiah and others ..... PETITIONERS AND 1.Mallipattu Ramakrishna Reddy (died) 2. Sannareddy Sundararami Reddy .....RESPONDENT(S) CIVIL REVISION PETITION No. 2412 of 2007 Between: Sannareddy Sundararami Reddy …Petitioner. And Kasala Balaiah and others …Respondents. The Court made the following : THE HON’BLE SRI JUSTICE C.V. RAMULU C.R.P. Nos. 6466 of 2003 and 2412 of 2007 COMMON ORDER: C.R.P. No. 6466 of 2003 is filed aggrieved by the order dated 24.10.2003 passed in E.P. No. --/03 in CF No. 582/2003 in O.S. No. 50 of 1978 on the file of the learned Senior Civil Judge, Gudur, Nellore District. Whereas, C.R.P. No. 2412 of 2007 is filed aggrieved by the order passed by the learned Senior Civil Judge, Gudur, Nellore District in I.A. No. 394 of 2002 in O.S. No. 50 of 1978 dated 10.10.2002. Since, the issue arises for consideration in both the C.R.Ps. is one and the same, both the C.R.Ps. are disposed of by this common order. An interesting and substantial legal point is involved in these two revisions. Brief facts are that the petitioner in C.R.P. No. 6466 of 2003 instituted O.S. No. 50 of 1978 for declaration of title and delivery of possession of an extent of Ac.0.06 cents of land against defendants 1 to 16. On contest, the trial Court decreed the suit on 8.3.1979, but the decree was restricted to defendants 1 and 16 only. Against the said judgment and decree, defendants 1 and 16 preferred A.S. No. 269 of 1980 before this Court and this Court, by judgment dated 28.1.1986, dismissed the said appeal. Later, the matter was carried by way of Letters Patent Appeal, being L.P.A. No. 59 of 1986, which also ended in dismissal on 24.1.7.1986. During the pendency of the appeal as well as L.P.A., the plaintiff/petitioner in C.R.P. No. 6466 of 2003, noticing that there was a mistake in drafting the decree, filed an application on 25.4.1985 bringing it to the notice of the Court that the decree was drafted against D1 to D6, but, in reality, it is only against D1 and D16. However, as the record was lying in this Court, the said application was not numbered by the trial Court. Subsequent to the dismissal of L.P.A., the said application was numbered as I.A. No. 394 of 2002 and the trial Court allowed the same on 10.10.2002. However, as the said order was passed without notice to D1 and D16 and further D1 died by the time of carrying out the said amendment, D-16 filed an application in the Court below i.e. I.A. No. 597 of 2004, and the trial Court dismissed the same on 27.9.2005 stating that it is not maintainable. Questioning the same, C.R.P. No. 434 of 2006 was filed in this Court and the same was dismissed on 28.1.2006; however, liberty was given to D-16 to question the said order dated 10.10.2002 made in I.A. No. 394 of 2002, in appropriate Court. Pursuant thereto, D-16 filed C.R.P. No. 2412 of 2007. Subsequent to the amendment of the decree on 10.10.2002, the plaintiff filed execution petition seeking execution of the decree dated 8.3.1979, as amended on 10.10.2002, and the executing Court suo motu took an objection about the maintainability of the said execution petition as it was filed beyond the period of 12 years from the date of judgment. After hearing the learned counsel for the petitioner, the Court refused to entertain the E.P., saying that it is contrary to the provisions of Article 136 of the Limitation Act and dismissed the application. Questioning the said order dated 24.10.2003, the plaintiff preferred C.R.P. No. 6466 of 2003. Therefore, it is necessary to first deal with C.R.P. No. 6466 of 2003 in order to find out whether the execution petition filed by the petitioner is maintainable after more than 12 years. Admittedly, the suit was decreed on 8.3.1979. Thereafter, I.A. No. 394 of 2002 was filed for correction of the decree passed in O.S. No. 50 of 1978. Admittedly, against the judgment and decree in O.S. No. 50 of 1978 dated 8.3.1979, A.S. No. 269 of 1980 was filed before this Court. However, the same was dismissed on 28.1.1986 and later the matter was carried by way of L.P.A. No.59 of 1986 before a Division Bench of this Court, which also ended in dismissal on 24.7.1986. In the meanwhile, I.A. -- of 1985 (un-numbered) was filed on 25.4.1985 but it could not be taken up since the records were lying before this Court. The record from this Court has gone back to the executing Court after disposal of L.P.A. 69 of 1986 dated 24.7.1986. Thereafter, the I.A. filed in the year 1985 was numbered as I.A. No. 394 of 2002. Therefore, it cannot be said that the I.A. was not filed within reasonable time nor it can be said that the I.A. was filed beyond 12 years of the decree and therefore even if the decree is modified, it cannot be executed. In this regard, Sri P. Sudheer Reddy, learned counsel appearing for respondents in C.R.P. No. 6466 of 2003, relied upon the following decisions: 1) Hameed Joharan (d) & Others v. Abdul Salam (d) by L.Rs & Others, [1] wherein the Supreme Court held: “The language used by the legislature in Article 136 it read in its proper perspective to wit: when the decree or order becomes enforceable 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 intention of the legislature stands clearly exposed by the language used therein viz., to permit twelve year certain period from the date of the decree or order. It is in this context that a decision of the Calcutta High Court in the case of Biswapati Dey v. Kennsington Stores and others (AIR 1972 Cal 172) wherein the learned Single Judge in no uncertain terms expressed his opinion that there cannot be any ambiguity in the language used in the third column and the words used therein to wit: 'when the decree or order becomes enforceable' should be read in their literal sense. We do feel it expedient to lend our concurrence to such an observation of the learned Single Judge of the Calcutta High Court. The requirement of the Limitation Act in the matter of enforcement of a decree is the date of which the decree becomes enforceable or capable of being enforced- what is required is to assess the legislative intent and if the intent appears to be otherwise clear and unambiguous, question attributing a different meaning other than the literal meaning of the words used would not arise. It is in this context, we also do feel it inclined to record our concurrence to the observations of the full Bench of the Bombay High Court in Subhash Ganpatrao Buty v. Maroti Krishnaji Dorlikar (AIR 1975 Bom.244). Full Bench in the decision observed: "... it is the duty of the Court to interpret the language actually employed and to determine the intention of the legislature from such language and since there is no ambiguity about the language actually employed, neither the recommendation of the Law Commission nor the aims and object as set out in the Statement of Objects and reasons can be brought in aid or can be allowed to influence the natural and grammatical meaning of the Explanation as enacted by the Parliament." 2) W.B. Essential Commodities Supply Corporation v. Swadesh Agro Farming and Storage Pvt. Ltd.[2] wherein the Supreme Court held: “It follows that the decree became enforceable the moment the judgment is delivered and merely because there will be delay in drawing up of the decree, it cannot be said that the decree is not enforceable till it is prepared. This is so because an enforceable decree in one form or the other is available to a decree holder from the date of the judgment till the expiry of the period of limitation under Article 136 of the Limitation Act”. 3) Vyravan v. Rayalu Ayyar & Co.[3], wherein a Division Bench of Madras High Court held: “The period of 12 years under S.48 would be computed from the date of the decree and not from the date when that decree is amended”. However, on a perusal of the above decisions, this Court is of the considered view that the facts of the case on hand are quite different and distinguishable from that of the decisions referred above and, therefore, the said decisions are not applicable to the present case. Since the un-amended decree as it is was not executable and there was no scope for filing E.P. against D-16, the theory that even if the decree is amended, the E.P. is maintainable only within 12 years from the date of original decree, cannot be applied. Further, it may be necessary to notice para 37 of the judgment rendered in O.S. Nos. 10 and 50 of 1978 dated 8.3.1979, which reads as follows: “The 10th defendant examined as PW-4 is a party to the suit in O.S.No. 50 of 1978. But he remained ex parte. He too claims though without material that the defendants 58 to 61 are in possession of only Ac.4-00 of land in S.No.54. But it is added by him that he does not know if they were in possession of Ac.7-68 cents in that survey number. However, his evidence is of no material benefit to either the plaintiff or that of the defendants 2, 8 and 9 to establish their title and possession to the same as against the superior claims of the defendants 58 to 61. On careful consideration of all the above aspects, I am convinced that the land in S.No.54, a total extent of Ac.7-68 cents shown as item 13 of the plaint-A schedule is the exclusive property of the defendants 58 to 61. The 9th defendant is not entitled to any amount as he is held not effected any repairs to the said land in S.No. 54 and that the plaintiff in O.S. No. 50 of 1978 is held to be entitled to the plaint schedule land of that suit and for recovery of the same from the illegal occupation of the defendants 8 and 9 of O.S. No. 10 of 1978 corresponding to the defendants 1 and 16 of O.S. No. 50 of 1978. The plaintiffs in O.S. No. 50/78, and their predecessors-in-title are held to be entitled to the entire extent of Ac.7-68 cents in S.No. 54 and the patta granted for the above said land in favour of Kasala Subrahmanyam Setty by the Assistant Settlement Officer, Nellore in 1958 is held not superceded by his order dated 5.7.1963. In these circumstances, I find the plaintiffs in O.S. No. 50 of 1978 have enough cause of action to file this suit. The above issues are accordingly decided in favour of the defendants 58 to 61 in O.S. No. 10 of 1978 and plaintiffs in O.S. No. 50 of 1978”. Thus, there was genuine mistake crept in the decree and that was sought to be corrected as early as in the year 1985, but that could not be done immediately in view of pendency of First Appeal and L.P.A. before this Court. After disposal of the L.P.A., the application was taken up and it was ordered as per law. Under those circumstances, it cannot be said that the application was not filed in time for the purpose of correction of the decree as per para 37 of the judgment or that there was any delay in filing such an application. Further, it cannot be said that the E.P. is not maintainable on the ground that it was filed after 12 years. In this case, it may be necessary to notice that unless and until the decree is corrected, the plaintiff could not have filed E.P. against D-16 in O.S. No. 50 of 1978. Thus, in the facts and circumstances of the case, it must be deemed that the application for correction of decree was filed in time and the same was corrected as per para 37 of the judgment and as required under the law. Therefore, from the date of correction of the decree, 12 years’ time was not elapsed. Therefore, the E.P. is maintainable. Further, this is not a case where the application for amendment of the decree was filed after 12 years. The very fact that the petitioner could not have got the decree executed against D-16 unless the decree was amended, cannot be disputed. Therefore, the right of the plaintiff for the purpose of executing the decree accrued only after the clerical mistake in the decree was rectified and corrected. The very correction was made in the decree as per the order in I.A. 394 of 2002 dated 10.10.2002 and, therefore, it cannot be said that the E.P. is not maintainable. In a case of this nature, as stated above, since the un-amended decree as it is was not executable and there was no scope for filing E.P. against D-16, the theory that even if the decree is amended, the E.P. is maintainable only within 12 years from the date of original decree, cannot be applied. For all the above reasons, C.R.P. No. 6466 of 2003 is allowed and the E.P. is restored to file. The Court below is directed to number the E.P. and deal with the same, as per law. C.R.P. No. 2412 of 2007: For the reasons and the view taken in C.R.P. No. 6466 of 2003, C.R.P. No. 2412 of 2007 is liable to be dismissed and accordingly dismissed. JUSTICE C.V. RAMULU. Date: -8-2009. MVB. [1] AIR 2001 SC 3404 PARA 10 [2] AIR 1999 SC 3421 [3] AIR (38) Madras 844