Fazl Ali, J.The only question to be decided in this case is one of limitation and it arises on the following facts: The respondent obtained an ex parte decree for money against the appellant on 22nd June 1931 but he took no step for executing the decree within three years of that date. On 3rd May 1935 (more than three years after the date of the decree) he made an application for the amendment of the decree u/s 152, Civil P.C., on the ground that the pleaders fee and certain other costs awarded to him had been wrongly calculated. On 3rd May 1935 the Court without issuing notice to the defendants, but after hearing the decree-holders pleader, directed that the pleaders fee be raised from Rs. 26-5-0 to Rupees 26.13.0 and the other costs be reduced from Rs. 3.5-6 to Rs. 1-11-9 with the result that the total claim awarded to the decree-holder was reduced by Rupees 1-2.0.

2. Subsequently on 26th April 1935 the respondent (decree, holder) applied for the execution of the decree but the appellant (judgment-debtor) resisted the application on the ground that it was barred by limitation. The appellants objection was upheld by the Munsif before whom the execution petition had been filed but was negatived by the District Judge on appeal. The judgment-debtor has accordingly preferred this second appeal u/s 47, Civil P.C.

3. Now, as the Courts below have pointed out, the question whether the application for execution is barred or not depends upon the proper construction of Article 182, Clause (4), Lim. Act. The period of limitation under Article 182 is three years and Clause (4) provides that when the decree has been amended, the period of three years is to run from the date of the amendment. The construction of the clause presents no difficulty when the decree is amended within three years of the date on which it was passed. In those oases however in which the amendment is made more than three years after the date of the decree, a question arises as to whether Clause (4) of Article 182 is to be read independently of Clause (1) or subject to it; or, in other words, whether a decree which has been amended after the execution is barred under Clause (1) can be executed. The decisions of the High Courts are not uniform in such cases and may be classified under three groups.

(1) In a number of oases it has been held that where a decree has not been executed within three years from its date, it can no longer be executed under Article 182(1) and the amendment of such a decree, after its execution has become barred under that clause, cannot give a fresh start to limitation from the date of amendment: Anandram v. Nityananda Barham A.I.R.1916. Cal. 511, Rabiuddin v. Ram Kanai SenA.I.R.1920. Cal. 769, Jhamman Lal v. Daulat Ram A.I.R.1924. Lah. 329, Haidri Khanam v. Bhawani Shankar A.I.R1934.. Oudh 43 and Debi Bakhsh v. Shambhu Dial A.I.R.1926. All 384.

(2) In another group of oases it has been decided that where the original decree is incapable of execution, time runs from the date when the decree is amended and when a proper decree capable of execution is drawn up: Sanatan Sant v. Dinabandhu Giri A.I.R.1921.Cal. 89 and Mahamaya Prasad Singh v. Abdul Hamid A.I.R.1914. Cal. 36.

(3) There is a third group of oases in which it has been held that inasmuch as Article 182(4) expressly provides that the date from which the period of limitation for execution of a decree should be computed is the date of the amendment, it is not for the Court of execution to inquire whether the amendment was properly made or whether the original decree was capable of execution or whether for any other reason the Court was wrong in making an order for amendment of the decree: Durga Prosad v. Kedar Nath Nayek A.I.R.1929. Cal. 650, Lakshmikanta Rao v. N. Ramayya A.I.R.1935. Mad. 97, Mt. Bhagwati Kuer v. Narsingh Narayan Singh A.I.R.1935. Pat. 286 and Maganlal Marwari v. Sitaram Pannalal A.I.R.1926. Pat. 316.

4. It was contended on behalf of the respondent that the last view is the view which should be adopted by us, firstly, because at least two previous decisions of this Court are based upon this view and secondly, because it is supported by certain observations made by the Judicial Committee in Nagendra Nath Dey v. Suresh Chandra Dey A.I.R.1932. P.C. 165 as to the proper construction of Clause (2) of Article 182 which provides that where there has been an appeal, the period of limitation runs from the date of the final decree or order of the Appellate Court or the withdrawal of the appeal. The observations made by the Judicial Committee in that case were to the following effect:

Their Lordships think that nothing would be gained by discussing these varying authorities in detail. They think that the question must be decided upon the plain words of the Article; "where there has been an appeal", time is to run from the date of the decree of the Appellate Court. There is, in their Lordships opinion, no warrant for reading into the words quoted any qualification either as to the character of the appeal or as to the parties to it; the words mean just what they say. The fixation of periods of limitation must always be to some extent arbitrary, and may frequently result in hardship. But in construing such provisions equitable considerations are out of place and the strict grammatical meaning of the words is, their Lordships think, the only safe guide.

5. In my opinion these observations do not preclude the view that Clause (4) of Article 182 should be read subject to Clause (l), but as the view taken in the two earlier decisions of this Court is one which may well be taken on the language of the Clause as it stands, I am not prepared to dissent from it. It was pointed out to us on behalf of the appellant that the facts of the two cases are somewhat different, for, in Mt. Bhagwati Kuer v. Narsingh Narayan Singh A.I.R.1917. Pat. 286 the application for the amendment was made within three years of the date on which the decree was passed, whereas in Maganlal Marwari v. Sitaram Pannalal A.I.R.1932. Pat. 316 it was made more than three years after the decree.

6. Having regard however to the words of Clause (4) of Article 182, it is difficult to distinguish these cases in principle. It appears to me that if Clause (4) of Article 182 is to be literally construed, there can be no escape from the conclusion that the amendment of a decree provides a fresh starting point for limitation and it is immaterial whether the application for amendment was made within three years of the date of the decree or more than three years after it. At the same time, upon reading Article 182 as a whole, it appears to me to be doubtful whether it was contemplated by the Legislature that a decree which is barred under Clause (1) should be revived by mere amendment. In my opinion Clause (4) of Article 182 has been somewhat unhappily drafted and if in fact the Legislature did not contemplate that a decree witch was barred under Clause (1) could be revived by an order of amendment, the clause should be suitably amended by providing that it will be applicable only if either the amendment or the application for the amendment is made within three years of the decree. If the decree as it is framed is incapable of execution or is to be amended in other respects, it will not be unreasonable to require the decree-holder to make an application for its amendment within three years of the date of the decree.

7. I may also incidentally remark that the construction of Clause (2) of Article 182 also presents certain difficulties which will be removed if it is made clear that the clause will not save limitation if the appeal is on the face of it incompetent. This will cover all those cases in which an appeal is preferred out of time or on insufficient court-fee or where it is preferred in oases in which no appeal can be preferred.

8. Coming now to the merits of the pre. sent case, it appears to me that the amendment which gives a fresh start to limitation must be an amendment in the real sense of the term, that is of some substance as affecting the rights of the parties, and not merely the correction of a clerical error or a trifling arithmetical mistake such as the Court might at any time correct of its own motion.

9. In the present case there was no real amendment of the decree and the Court which was asked to amend it, did not issue notice to the opposite party before passing final orders upon the decree-holders application.

10. I am therefore inclined to think that Article 182, Clause (4) cannot be availed of by the decree-holder and the execution is barred by limitation.

11. I would therefore allow this appeal, set aside the order of the District Judge and restore the order passed by the Munsif. Parties will bear their own costs in this Court.

Madan, J.

I agree.