“C.R.” IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 11TH AUGUST 2010 / 20TH SRAVANA 1932 WP(C).NO. 12651 OF 2010(O) ---------------------------------------- AGAINST THE ORDER IN EP 34/02,EA 354/2009 IN OS.719/1989 OF SUB COURT,NEYYATTINKARA .................... PETITIONER(S): ------------------------- R.S.MOHANACHANDRAN @ KANNAN, S/O.SUKUMARAN NAIR, KRISHNA VILASOM, REMADEVI MANDIRAM, KEEHKOLLA DESOM, CHENKAL PAKUTHI. BY ADV. SRI.G.P.SHINOD SRI.RAM MOHAN.G. RESPONDENT(S): -------------------------- BHAVANI AMMA PANKAJAKDHI AMMA, PIRIYAKKOTTU VEEDU,PANGAPPARA VILLAGE, THIRUVANANTHAPURAM. ADV. SRI.G.SUDHEER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX --------------- PETITIONER'S EXHIBITS: ---------------------------------- EXHIBIT P1 TRUE COPY OF THE PROCLAMATION SCHEDULE. EXHIBIT P2 TRUE COPY OF E.A. NO.354 OF 2009 IN E.P.NO.34 OF 2002 IN O.S. NO.719 OF 1989. EXHIBIT P3 TRUE COY OF THE ORDER DATED 4.3.2010 IN E.A. NO.354 OF 2009 IN E.P. NO.34 OF 2002 IN O.S. NO.719 OF 1989. RESPONDENT'S EXHIBITS: ----------------------------------- NIL TRUE COPY “C.R.” THOMAS P.JOSEPH, J. ==================================== W.P(C) No.12651 of 2010 ==================================== Dated this the 11th day of August, 2010 J U D G M E N T The Privy Council observed in General Manager of Raj Durbhanga v. Ramput Singh (14 Moor's Indian Appeals 605 age page 612): “Difficulties of a litigant in India begin when he has obtained a decree”. B.N. Banerjee J., observed in Sm.Anita Karmokar and Another v. Birendra Chandra Karmokar (AIR 1962 Calcutta 88): “The path of execution is not an easy going high way and provides no short-cuts to the destination.” W.P(C) No.12651 of 2010 -: 2 :- 2. As it happens usually in the present case also, may be without much difficulty respondent secured a decree against petitioner on 29.06.1994 for recovery of money. Certain items of immovable properties belonging to the petitioner were placed under attachment before judgment. To execute that decree respondent filed E.P.No.34 of 2002 within the period of limitation prescribed under Article 136 of the Limitation Act, 1963 (for short, “the Act”) and proceeded against some of the properties attached but the execution did not prove successful. On 11.07.2008 respondent filed Ext.P1, proclamation schedule to proceed against an item of property referred to therein and which also was placed under attachment before judgment but not included in E.P.No.34 of 2002. Petitioner preferred objection to Ex.P1, contending that proclamation (dated 10.07.2008) has been filed on 11.07.2008 after the period of limitation prescribed for execution of a decree under Article 136 of the Act expired on 29.06.2006, Ext.P1, proclamation schedule should be treated as execution against the property mentioned therein filed beyond the prescribed time and hence barred by limitation. Petitioner filed Ext.P2, application (EA No.354 of 2009) challenging maintainability of Ext.P1, proclamation schedule. That application was dismissed by the executing court as per W.P(C) No.12651 of 2010 -: 3 :- Ext.P3, order which is under challenge in this Writ Petition. 3. The following question arises for a decision in this Writ Petition: “Whether an item of property (though placed under attachment before judgment) can be proceeded against in execution of a decree for recovery of money after the period of limitation prescribed under Article 136 of the Act though the execution petition was filed within the period of limitation?” 4. It is contended by learned counsel for petitioner that though E.P.No.34 of 2002 was filed within the period of limitation prescribed under Article 136 of the Act, Ext.P1, proclamation schedule was filed on 11.07.209 with intend to proceed against a new item of property not mentioned in the execution petition and hence it is an execution against the new item of property which cannot be permitted after period of limitation computed from the date of decree (29.06.1994). Learned counsel contends that when the decree holder seeks to proceed against an item of immovable property in execution it W.P(C) No.12651 of 2010 -: 4 :- is in effect execution against that item of property and hence Ext.P1, proclamation must be treated as an application for execution against the property mentioned therein. Learned counsel contends that though Section 48 of the Code of Civil Procedure, 1908 (for short, “the Code”) was repealed by Sec.28 of the Act, the rigour of that provision and the period of limitation for execution of a decree continued to be in force in view of Article 136 of the Act. Learned counsel has placed reliance on the decisions in Pentapati China Venkanna v. Pentapati Bengararaju and Others (AIR 1964 SC 1454), Lalji Raja & Sons v. Hansraj Nathuram (AIR 1971 SC 974), Anandilal v. Ram Narain (AIR 1984 SC 1383), Rajammal v. State Bank of Mysore (1992 (2) KLT 321) and Chandi Prasad v. Jagadish Prasad ([2004] 8 SCC 724). In response it is contended by learned counsel for respondent that property mentioned in Ext.P1, proclamation schedule was placed under attachment before judgment. By virtue of Order XXXVIII Rule 11 of the Code attachment before judgment continues to be in force even after passing the decree and hence property mentioned in Ext.P1, proclamation schedule should be treated as attached in execution of the W.P(C) No.12651 of 2010 -: 5 :- decree. According to the learned counsel until the decree is executed in full attachment over the property remains in force and hence Ext.P1, proclamation schedule can only be treated as an amendment to the pending execution petition to incorporate in the execution petition property referred to in the proclamation schedule and proceed against that item which is permissible under Order XXI Rule 17 of the Code. It is also contended by learned counsel that since Sec.48 of the Code is repealed by Sec.28 of the Act, the bar created by that provision no more applies. So far as Article 136 of the Act is concerned, what is required is only to file the execution petition within the period of limitation which has been done in this case. Learned counsel has invited my attention to the prayer made in the execution petition that the properties scheduled thereunder and which are already attached in the course of the suit may be proceeded against for realization of the amount. Reliance is placed on the decision of this Court in Porinchu v. John (1995 [2] KLT 339). 5. The decree for recovery of money in the present case was passed on 29-06.1994. As per Article 136 of the Act the period of limitation to execute that decree expired by 29.06.2006. Respondent filed E.P. No.34 of 2002 within the said period. Exhibit P1, Proclamation schedule was filed on 11.07.2008. It is not W.P(C) No.12651 of 2010 -: 6 :- disputed that property sought to be proceeded against in Ext.P1 was not mentioned in E.P.No.34 of 2002. But that property was also placed (among other items of property referred to in E.P.No.34 of 2002) under attachment before judgment. The question is whether in view of repeal of Sec.48 of the Code Ext.P1, proclamation schedule filed on 07.11.2008 can be treated as an application for amendment of the execution petition under Order XXI Rule 17 of the Code and at any rate since the said property was placed under attachment before judgment it could be said that the bar of limitation under Article 136 of the Act did not apply to proceed against the said property for the reason that attachment remained in force in execution as well in view of Order XXXVIII Rule 11 of the Code. 6. The relevant provisions of Sec.48 of the Code which was repealed by Sec.28 of the Act read: “(1) Where an application to execute a decree not being a decree granting an injunction has been made, no order for the execution of the same decree shall be made upon any 'fresh application' presented after the expiration of twelve years from - (a) the date of the decree sought to be W.P(C) No.12651 of 2010 -: 7 :- executed. (b) .............” The said provision corresponded to paragraphs 3 and 4 of Section 230 of the Code of Civil Procedure, 1882 (for short, the Old Code”). The relevant provision read: “Where an application to execute a decree for the payment of money or delivery of other property has been made under this section and granted, no 'subsequent application' to execute the same decree shall be granted after the expiration of twelve years from any of the following dates.....” A comparison of the said provision shows that the expression ‘fresh application’ (occurring in Sec.48 of the Code) has been substituted for the expression ‘subsequent application' (in Sec.230 of the Old Code). In Venkata Lingama v. Venkata Narasimha (AIR (34) 1947 Madras 216) the scope of Sec.48 of the Code (since repealed) was considered. It was held that though the Code spoke of an application for W.P(C) No.12651 of 2010 -: 8 :- execution it did not contemplate an application for execution being made in its general terms and kept pending till the decree amount is fully satisfied. It was held that a subsequent application to continue the pending application with a prayer for sale of a new property included in the decree but not included in the previous application is a fresh application attracting the bar under Sec.48 of the Code. It was observed in paragraph 13, “.....The Code contemplates successive applications being made to the Court to execute the decree by taking one or more of such steps and the Court is bound to assist the decree holder in the mode required by him subject to the exercise of the discretion as to simultaneous execution against the person and property of the judgment debtor under R.21, provided of course that the application is not barred by any provision of law. It seems to me that, under such a scheme, every application requiring the Court to proceed against a particular property is a substantive application for execution and an application for attachment and sale or for sale without attachment of property ‘B’ where a previous similar W.P(C) No.12651 of 2010 -: 9 :- application in respect of property ‘A’ has succeeded or failed or is still pending is a fresh application for execution and cannot be treated as one for amending and continuing the prior application, although the prayer in the later application may be worded in that manner. Where no question of limitation arises it is, of course, immaterial how the subsequent application is regarded, but when it is made beyond the period of limitation, its real character assumes importance and must be determined, paying more regard to the substance of the matter than to the form or the words used....” The Full Bench of the Travancore High Court considered the issue in N.D.Namboodiri v. K.Yohannan (AIR 1957 Trav- Co. 109). There the scope of Rule 17 of Order XXI vis-a-vis Sec.48 of the Code (since repealed) was considered. It was held that application giving fresh list of property after limitation is a fresh application and is barred under Sec.48 of the Code. A decree holder cannot be permitted to seek execution against fresh property after the expiry of 12 years from the date of passing of the decree even though when such an attempt is W.P(C) No.12651 of 2010 -: 10 :- made an earlier application filed within time happened to be pending. What a decree holder cannot do by means of an independent application, he cannot be allowed to do under the guise of amendment of pending application. In such a situation an application to include a fresh item of property to be proceeded against was found to be a fresh application within the meaning of Sec.48 of the code (since repealed) attracting the period of limitation therein. 7. The effect of repeal of Sec.48 of the Code and introduction of Article 136 of the Act and the scope of the expression “fresh application” occurring in Sec.48 of the Code were considered by the Supreme Court in Pentapati China Venkanna v. Pentapati Bengararaju (supra). It was held that the application mentioned in Sec.48 is a fresh application and not an application to revive or continue a substantive application already pending on the file of the court where the previous execution petition was closed for statistical purposes and decree holder was not in a position to proceed with the execution petition. In such cases the execution petition must be held to be pending on the file of the executing court and the subsequent application is only an application to continue the (closed) application and not a fresh one. But an application made after W.P(C) No.12651 of 2010 -: 11 :- 12 years from the date of decree will be a fresh application within the meaning of Sec.48 if previous application was finally disposed of. It would also be a fresh 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 the one asked for in the earlier application. The Supreme Court after a survey of all relevant decisions on the point including the decision in Venkata Lingama v. Venkata Narasimha (supra) held: “The result of the decisions may be summarised thus: An application made after 12 years from the date of the decree would be a fresh application within the meaning of S.48 of the Code of Civil procedure if the previous application was finally disposed of. It would also be a fresh 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.” W.P(C) No.12651 of 2010 -: 12 :- Going by the above decisions it is clear that an application made after 12 years of the date of decree would be a 'fresh application' within the meaning of Sec.48 of the Code (since repealed) if the previous application was finally disposed of and it would also be a 'fresh application' if it asked for a relief against parties or properties different from those proceeded against in the previous execution application. 8. This Court in Porinchu v. John (supra) has struck a different note. There, decree holder filed execution petition with a prayer for personal execution against the judgment debtor. After the expiry of 12 years from the date of decree, the decree holder filed an application seeking to add an alternative prayer for recovery of the decree amount by sale of certain properties belonging to the judgment debtor. Judgment debtor resisted that application on the ground that it is barred by limitation since virtually a new relief is sought for after the period of limitation, though by way of amendment to the execution petition which is already pending. Executing court overruled the objection. In this Court judgment debtor relied on Sec.48 of the Code (since repealed) and the decisions of this Court in N.D.Namboodiri v. K.Yohannan (1956 KLT 888), W.P(C) No.12651 of 2010 -: 13 :- Kochikka v. Kunju Pennu (1963 KLT 357) and Vasudevan Unnithan v. Karthyayani Amma (1966 KLT 78). Learned Judge held that those decisions concerned application of Sec.48 of the Code which was repealed by Sec.28 of the Act and by which Article 136 of the Act was introduced. Learned Judge proceeded to say that Sec.48 of the Code prescribed a bar for fresh application while Article 136 of the Act prescribed a limitation for execution and holding so it was held that in so far as the bar under Sec.48 of the Code is not available on account of its repeal by Sec.28 of the Act, the decisions of this Court (referred supra) are not applicable. It was held that an application to amend the execution petition (which is filed within the period of limitation) to incorporate an alternative relief cannot be treated as a 'fresh application' for execution as contemplated under Article 136 of the Act. It was therefore held that application to amend the execution petition to incorporate a fresh relief against judgment debtor is not barred under Article 136 of the Act. 9. A different view was taken by another learned Judge of this Court in Rajammal v. State Bank of Mysore (supra). There, reference was made to the decisions in N.D. Namboodiri W.P(C) No.12651 of 2010 -: 14 :- v. K.Yohannan and Venkanna v. Rangararaju (supra). Learned Judge held that the import of Article 136 of the Act and Sec.48 of the Code (since repealed) is that a fresh execution petition/application (filed after 12 years of the decree) will be patently barred and that the bar cannot be circumvented even by filing an application for amendment or seeking to revive a pending application. Such methods to overcome the bar of limitation will not be recognised by the court. Specific reference was made to the observations in Pentapati China Venkanna v. Pentapati Bengararaju, quoted supra. 10. It is relevant to note that while deciding Porinchu v. John (supra) the attention of learned Judge was not brought to the decisions in Pentapati China Venkanna v. Pentapati Bengararaju, Lalji Raja & Sons v. Hansraj Nathuram, Anandilal v. Ram Narain and the decision of this Court in Rajammal v. State Bank of Mysore (supra). In Lalji Raja & Sons v. Hansraj Nathuram (supra) it has been held that Sec.48 of the Code (since repealed) was a period of limitation and was controlled by the provisions of Act. It was argued in that case that Sec.48 of the Code prescribed a bar and not a period of limitation and consequently the decree holder cannot take benefit of Sec.14(2) of the Act. The argument was repelled and it W.P(C) No.12651 of 2010 -: 15 :- was held that Sec.48 of the Code prescribed a period of limitation for the application referred to therein. In paragraph 25 it was held, “......These provisions clearly go to indicate that the period prescribed under Sec.48(1) of the Code is a period of limitation. This conclusion of ours is strengthened by the subsequent history of the legislation. By the Limitation Act, 1963, S.48 of the Code is deleted. Its place has been taken by Art.136 of the Limitation Act of 1963.” (emphasis supplied) The same view was taken by the Supreme Court in Anandilal v. Ram Narain (supra). There, in paragraph 6 after referring to Sec.48 of the Code and Article 136 of the Act it is held, “It is well settled that Section 48 of the Code was controlled by S.15(1) of the Limitation Act. Section 48 of the Code enacted a rule of limitation and prescribed a period of 12 years for an application W.P(C) No.12651 of 2010 -: 16 :- for execution of decrees and orders. It has since been repealed by Section 28 of the Limitation Act, 1963 which enacts that “in the Code of Civil Procedure, 1908 (Act V of 1908), Section 48 shall be omitted” In its place a new provision, Art.136 has been introduced and that prescribes “for the execution of any decree (other than a decree granting a mandatory injunction) or order of any Civil Court a period of 12 years, etc.” Thus, the substance of Section 48 continues to be the law and for that reason, and also for the reason that with regard to pending applications, the law as laid down in the decisions interpreting S.48 might have to be referred to, it is necessary to give reasons.” (emphasis supplied) This position is further made clear in Chandi Prasad v. Jagdish Prasad (supa) where in paragraph 16, it is stated that the substance of Sec.48 of the code (since repealed) continues to be the law and that it is trite that the provisions of the Code as also the Act have all along been considered to be supplemental to each other. It is settled position of law that execution of the W.P(C) No.12651 of 2010 -: 17 :- decree would mean enforcement of the decree by what is known as the process of execution. All process and proceeding in aid to or supplemental to execution would come within the meaning of the word 'execute' within the meaning of Sec.15(1) of the Act. Thus the position is clear that Sec.48 of the code (since repealed) was not a bar to file an application but prescribed a period of limitation and the substance of Sec.48 of the Code continues to be the law in the form of Article 136 of the Act. It is without referring to the decisions of the Apex Court above mentioned that this Court in Porinchu v. John (supra) held that limitation under Article 136 of the Act is applicable to only fresh application for execution and does not apply in the case of application for amendment of the execution petition already pending and instituted within the period of limitation. In so far as the decision in Porinchu v. John (supra) does not refer to the binding authorities on the point which I have referred supra and in the light of the discussion made above, I respectfully disagree with the decision in Porinchu v. John (supra). In the light of the binding decisions of the Supreme Court which has been referred to in Rajammal v. State Bank of Mysore (supra) I am persuaded to follow the decision in the said case. It follows that when an application for amendment of a pending execution W.P(C) No.12651 of 2010 -: 18 :- petition or an application containing an alternative mode of execution is made or the decree holder wants to proceed against a new item of property not already included in the pending execution petition by way of an application, it is a fresh application for execution as originally understood under Sec.48 of the code which is now imported to Article 136 of the Act and hence is subject to the period of limitation prescribed under Article 136 of the Act. 11. Then the next question is whether on the facts of the present case Ext.P1, proclamation schedule filed on 11.07.2008 requesting to proceed against an item of immovable property which was not mentioned in the execution petition but of course was attached before judgment could be treated as a fresh application for execution and having been preferred beyond the period of 12 years from the date of decree is barred under Article 136 of the Act. In this connection learned counsel for respondent placed reliance on the prayer made in the execution petition which is to the effect that after issue of notice under Rule 22 of Order XXI to the petitioner, court may proceed against properties attached before judgment and scheduled in the execution petition after issuing notice under Rule 66 of Order XXI. Learned counsel argued that the said statement in the W.P(C) No.12651 of 2010 -: 19 :- execution petition (which admittedly was filed within the period of limitation) shows that respondent wanted to proceed against all items of immovable properties attached before judgment though there happened to be an omission in not mentioning the property referred to in Ext.P1, proclamation schedule in the execution petition. According to the learned counsel when an attachment was made before judgment and subsequently a decree was passed it continues to be an attachment in execution and hence what was required was only to issue notice under Rule 66 of Order XXI of the Code and bring the said property for sale. Learned counsel contended that Ext.P1, proclamation schedule can be treated as a request to amend the execution petition as provided under Rule 17 of Order XXI of the code. In response it is contended by learned counsel for petitioner that the mere fact that the new item of property was attached before judgment and continued to be under attachment even after the decree was passed does not by itself mean that Ext.P1 did not relate to a fresh item of property. According to the learned counsel remedy against the property referred to in Ext.P1 though it was placed under attachment before judgment was lost on the expiry