Amendment of an execution application after 12 years from the date of passing of the decree, introducing reliefs different from those contained in the last application filed within time, is a fresh application and is barred by limitation under section 48 C.P.C.

JUDGMENT :

Ramachandra Raju, J.

This Civil Miscellaneous Appeal is directed against an order dated 7-7-69 of the court of the Addl. District Judge, Krishna Machilipatnam, passed in E.A. No. 54 of 1958 in O.S. No 9 of 1956 rejecting the amendment sought under order 21 Rule 17 and section 151 of the Code of Civil Procedure in E.A No. 67 of 1963 in O. S. No. 9 of 1956 by including the reliefs under order 21, Rules 21, 22, 54, 66 and 82 C.P.C. for attachment and sale of some immovable properties of the judgment-debtors 3 to 7 in execution of the decree.

2. The suit O.S. No. 9 of 1956 was filed by the 1st respondent herein against the respondents 2 to 10. Respondent 2 was a firm of which respondents 3 to 10. were partners. The suit was decreed on 29-2-1956 for a sum of Rs. 6,000/-. Thereafter the 1st respondent transferred the decree on 31-8-1963 in favour of the present petitioner. The petitioner then filed E. A. 67 of 1963 referred to above on 9-10-1963 for two reliefs namely (1) for recognition of his transfer under order 21 Rule 16 C.P.C., and (2) to transfer the decree for execution to the Sub Court, Gudivada as provided under section 39 C.P.C. Notices were issued on that E.A. and counters were filed and that E. A. is still pending. The present E.A. 54 of 1968 was filed by the petitioner on 5-10-1968 to amend the prayer in E. A. 67 of 1963 for execution of the decree in the District Court, itself instead of transmitting it to the Sub Court, Gudivada, as originally prayed for and for attachment and sale of certain properties of the judgment-debtors referred to above. This application for amendment of the prayer in E. A. 67 of 1963 was dismissed on the ground that on 5-10-1968 on which date the E. A. 54 of 1968 for amendment was filed, the decree was barred by time as provided under section 48 C.P.C., 12 years time having been elapsed since the date of its passing. The period of limitation under section 48 C.P.C., within which the decree has to be executed is 12 years from the date of the decree sought to be executed. It is assailing that view taken by the learned District Judge in dismissing E. A. 54 of 1968 this Civil miscellaneous Appeal has been filed.

3. As already noticed above the date of the decree is 29-2-1956. When the amendment application E. A. 54 of 1968 was filed on 5-10-1968 it was more than 12 years since the date of passing of the decree. When E. A. 67 of 1963 was filed on 9-10-1963 it was well within 12 years from the date of passing of the decree and also it is not in dispute that it was filed within three years from the date of the final order passed on an earlier application filed in execution. Therefore, E. A. 67 of 1963 was within time. If the amendment sought can not be allowed and it dates back to the date of the filing of E. A. 67 of 1963, the decree is capable of execution by the attachment and sale of properties now sought by way of amendment. The question is whether such an amendment can be allowed to enable the petitioner to execute the decree and realise the decree amount though the present application was filed after more than 12 years from the date of passing of the decree.

4. Sri G. Venkatarama Sastry, the learned counsel appearing for the petitioner has contended that E. A 67 of 1963 filed by the petitioner is a petition to execute the decree itself and it having been filed in time when there was no bar of limitation on the date of its filing there is no reason why even after the lapse of 12 years from the date of the passing of the decree, the amendment sought for cannot be allowed. On the other-hand, Sri K. B. Krishna Murthy the learned counsel appearing for the contesting respondents has argued that E. A. 67 of 1963 is not an E.P., for executing the decree and there is no question of now making the amendment of an E. P. already filed and even otherwise after the lapse of 12 years from the date of passing of the decree no amendment can be allowed either to execute the decree against new judgment-d