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Judgment
On 08.05.2017 this Court has made the following order :
"None for the petitioner.
Since this is a matter, which is specifically fixed for hearing during vacation, it is not possible to adjourn this matter indefinitely. However, an additional opportunity is granted and the matter is posted on 11/05/2017.
It is made clear that if on this date as well, neither the petitioner nor his Advocate appears, the matter will be disposed of in accordance with law."
Today when the matter was called out, none appears for the petitioner. Ms. Razaq, learned Advocate appears for the respondent.
The challenge in this petition is to the order dated 27.08.2012 by which the Executing Court has permitted the respondent to amend its execution application.
In the Execution Application, the respondent/decree holder had stated as against the column "the amount of costs ( if any awarded ) Rs.2281/50 as per the decree dated 18/8/1998". It is the case of the respondent that the reference to the amount of costs to be Rs.2281/50 was incorrect, since the correct amount of costs was "Rs.280.086-34 and Rs.72,773.40 as per decree dated 20/08/1964".
The petitioner/judgment debtor had opposed the amendment application mainly on the ground that the claim for corrected costs is barred by limitation. The learned Executing Court has held that the plea of limitation is mixed question of law and fact, the amendment can be allowed and the issue of limitation can always be kept open.
The Executing Court has held that the execution proceedings are at the initial stage and therefore, if the error which has crept into the execution application is permitted to be corrected, no prejudice would occasion the judgment debtor, and they will always have the opportunity of contesting the claim on merits, including, by way of raising plea of limitation, if available. The learned Executing Court has relied upon the decision in Bharat Petroleum Corporation v/s Precious Finance Investment, 2006(6) Bom. C. R. 510 in which it is held that the amendment can be permitted and the issue of limitation can be kept open, particularly where such question is mixed question of law and fact.
There is neither jurisdictional error in making of the impugned order nor it can be said that the impugned order is vitiated by perversity in the matter of approach. It does not appear to be the case of the petitioner that the Execution Application, originally instituted was barred by limitation. It is the case of the respondent that the Execution Application was instituted within the prescribed period of limitation and by the proposed amendment, only quantum of costs is sought to be corrected. Such correction is consistent with the amount of costs provided for in the Decree dated 20.08.1964, of which, the execution is applied for. In such circumstances, it cannot be said that there is jurisdictional error in the impugned order, particularly since, issue of limitation has been kept open.
In South Konkan Distilleries and another V/s Prabhakar Gajanan Naik and others, reported in (2008) 14 SCC 632, it is held that the Court should be extremely liberal in granting amendment, provided the same was within the period of limitation or there would be an arguable issue with regard to the point of limitation. In the latter situation, the Court should allow the amendment and frame an issue on whether the amended claim was barred by law of limitation.
In Ragu Thilak D. John Vs. S. Rayappan, reported in (2001) 2 SCC 472, it was held that where the amendment was barred by time or not, was a disputed question of fact and, therefore, that prayer for amendment could not be rejected, but, issue of limitation can be made an issue in the suit itself.
In Pankaja V/s Yellappa, reported in (2004) 6 SCC 415, where the question of limitation was found to be arguable issue, the Supreme Court allowed the amendment and directed the Trial Court to frame necessary issue on the question of limitation and to decide the same in accordance with law.
In T. A. Darbar and Company and others v/s Union Bank of India, reported in 1995(1) Mh. L. J. 610, the Division Bench has held that the Court should strive to ensure that execution of the decree passed by the Court is enforced and unless and until execution is clearly barred by law of limitation, the Court should not defeat the execution by reference to technical contentions.
Applying the aforesaid principles to the facts and circumstances of the present case, it cannot be said that the impugned order is vitiated by any jurisdictional error or perversity so as to warrant interference under Article 227 of the Constitution of India. As stated earlier, the respondents contend that this is a case of mere correction of the amount of costs awarded. The correction is consistent with the amount reflected in decrees. The petitioner contends that the bar of limitation is attracted. At least this is an arguable issue. The rejection of leave to amend would disable consideration of the claim for costs whereas the impugned order which has granted leave, has specifically kept open the issue of limitation. This is the appropriate approach in a matter of this nature as held in the decisions referred to above.
Accordingly, this petition is dismissed. The interim order, if any, is vacated.
The parties shall appear before the Executing Court on 12.06.2017 at 10.00 a.m. In case, the petitioner is not present before the Executing Court on 12.06.2017, the Executing Court to issue notice indicating the next returnable date in the matter.
Rule is therefore discharged. There shall be no order as to costs.