P L D 1954 Lahore 263 (PLP)

[Case‑law referred to.] Maulvi Ghulam Mohy‑ud‑Din, for Appellants. Nemo, for Respondents. SOOFI, J.‑‑The facts giving rise to this Execution Second Appeal are as follows :‑ In a suit for the partition of a house the final decree was passed on the 19th of January 1944. When an execution appli cation was put in by the decree‑holder on the 6th of December, 1944, it was found that although the stamped paper necessary for the preparation of the decree had been put in the decree sheet had not been prepared. On the 27th of April 1945 the formal decree sheet was drawn up. On the 2nd of May 1945 a warrant of possession was issued in respect of the decree holder's share in the property. On the 7th of July 1945 Maula Bakhsh, one of the defendants in the case, applied for the amendment of the decree on the ground that the term about the construction of a wall had been omitted in the final decree sheet as drawn up. On the 23rd of February 1950 the amendment was made. On the 26th of April, 1950 the appellants Maula Bakhsh and Muhammad Bashir applied for execution, of the amended decree. An objection was taken before the executing Court that the execution was time barred. On the 19th of May, 1950 the executing Court, relying on Imam Din v. Peoples Instalment and Saving Bank Ltd., Lahore (A I R 1941 Lah. 131.), made the order that the execution was within time. On the 29th of August 1.952 the learned Additional District judge, hearing an appeal against that order, without considering the authority cited by the lower Court, regarded it as distinguishable and reversed the decision holding that the execution was time barred. Mania Bakhsh and Muhammad Bashir have come up on second appeal. The case has been heard ex parte as the‑respon dents despite service did not put in appearance. Clause (4) of Article 182 of Schedule I to Limitation Act 1908 provides three years limitation for the execution of a decree of a Civil Court (not provided for by Article 183, or by section 48 of the Civil Procedure Code) from the date of the amendment of the decree, where the decree has been amended. The introduction of clause (4) set at rest the conflict between the two views that previously existed, one view being that the amendment of the decree amounted to a review of judgment within the meaning of clause (3) and it furnished a fresh starting point for limitation ; the other being to the contrary based on the reason that the amend ment could not be regarded as review. The language of clause (4) is to be given its plain meaning according to the well‑known canon of construction. The natural meaning does not admit of any ambiguity. Where a decree is amended, it is immaterial whether the amendment is of a clerical nature or of substantial character. It is not the function of san executing Court to question the correctness or the propriety of a decree. I come to the conclusion that clause (4) of Article 182 of the Limitation Act would apply to the facts of the case and the A amendment of the decree would give a fresh starting point for limitation. I am fortified in this view not only by the decision in Imam Din v. Peoples Instalment and Saving Bank Ltd. Lahore (A I R 1941 Lah 131), which was cited by the lower Court, but also by authorities of Bombay, Patna and Allahabad High Courts. A Division Bench of Bombay High Court in Basawa Chamba sawraj v. Somashekhararaj Shivraj (A I R 1948 Bom. 49.), laid down that the language of Article 182 (4) is plain and unqualified and an amendment of a decree gives a fresh starting point for limitation whether the amendment be formal or substantial and whether the decree amended was or was not barred by limitation at the time of the amendment. A mere reference need be made to Gouri Kant Prasad v. Rambilas Narain and others (A I R 1948 Pat. 158.) and a Full Bench authority of the Allahabad High Court in Ballabh Das and another a. Shiva Prasad (A I R 1951 All. 245.) in this connection. I, therefore, holding that the limitation commences from the date of the amendment and that the petition is within time, set aside the order of the lower appellate Court and restore that of the Court of first instance. A. H. Appeal accepted.