Point of Law : Mere nomenclature of anything would have any predominance unless the contents of the document if read together would justify the nomenclature.

JUDGMENT :

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