JUDGEMENT
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(1.)This Civil Revision Petition is filed by the 3rd judgment debtor in O.S. No. 138 of 1985 on the file of the Additional Munsiff's Court, Kottayam. The suit was for recovery of possession on the strength of title and it was decreed ex parte against defendants 1 to 3 on 18-6-1986. Subsequently the 1st defendant filed I.A.1973 of 1987 to set aside the ex parte decree. Though the trial court dismissed that application, the appellate court in C.M.A. No. 83 of 1988 allowed the same by order dated 21-5-1993. Subsequently, the trial court passed a fresh decree against the 1st defendant, by judgment and decree dated 5-11-1996. On 23-1-1998, the decree-holder filed E.P. No. 64 of 1998 to execute the decree against all the defendants. In that application, the decree sought to be executed was shown as the decree dated 5-11-1996. Subsequently, on 24.10.2001, the decree-holder filed E.A. No. 284 of 2001 to amend the execution petition to include the date of decree as 18-6-1986 also. The execution court allowed the application for amendment of the execution petition. This revision is filed challenging that order.
(2.)The learned counsel for the revision petitioner contended that since by the time the Execution Application No. 284 of 2001 was filed, the decree dated 18.8.1986 became barred by limitation, the amendment should not have been allowed. He also relied on the decisions in K. Raheja Constructions Ltd. v. Alliance Minstries (AIR 1995 SC 1788) and Manilal v. Oriental Fire & General Insurance Co. Ltd. to contend for the position that where the claim is barred by limitation, the pleadings cannot be amended. In Raheja Constructions' case, the suit for injunction was sought to be amended after seven years of the filing of suit into one for specific performance of an agreement and it was found that the amendment cannot be allowed. In Manilal's case, the amendment was sought while the case was pending in appeal which relief was already barred by limitation.
(3.)In Ragu Thilak D. John v. Dass Estate (P) Ltd. ((2001) 2 SCC 472), the Supreme Court held that when the suit was filed originally for injunction restraining the defendant from demolishing the plaintiff's compound wall and he alleged that during the pendency of the suit the defendant entered his property and demolished the compound wall and when the plaintiff filed application for amendment of plaint including recovery of damages, the dismissal of the application for amendment of plaint was found to be illegal. It was held that the amendment should be allowed and the question whether the relief was barred by limitation could be considered at the trial of the suit after framing an issue in that respect. In Estralla Rubber v. Dass Estate (P) Ltd. , the question arose whether the defendant in a suit for eviction filed under the West Bengal Premises Tenancy Act could file an application for amendment of the written statement denying the title of the landlord. The High Court had in exercise of the jurisdiction under Art.227 of the Constitution allowed the Writ Petition filed by the landlord and set aside the order of the District Judge in revision. The High Court had found that if the amendment was allowed, the respondent/plaintiff would be deprived of the benefit of the admission made by the defendant in its application under Sections 17(2) and 17(2-A) of the Act seeking extension of time for deposit of the admitted arrears of rent. It was also found by the High Court that there was a delay of three years in filing the application for amendment. The Supreme Court held that the amendment was only to elaborate the defence in support of its case and it was open to the defendant to explain the admission in the original written statement and the amendment was required for proper adjudication of the controversy between the parties and to avoid multiplicity of judicial proceedings.
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