“13. The next decision on which reliance was placed was Ouseph v. Lona [AIR 1979 Ker 14 : 1978 KLT 624] . This decision undoubtedly supports the case of the respondents. But I am unable to agree with the principle enunciated in this decision. No doubt, the principle of Section 48 is now embodied in Article 136 which provided for 12 years' period of limitation for the execution of a decree, but the starting point must be determined with reference to the express language of Article 136 which says ‘when the decree becomes enforceable’. These words were not there in Section 48. In my opinion, the proper interpretation would be, to reckon the period from the date of the decree that is sought to be enforced i.e. if there is an appeal, it is the appellate decree and if there is an amendment, it is from the date of the amended decree. As I said earlier, even in a case of affirmance, if time begins to run from the date of the appellate decree and not the original decree, much more so in the case of a decree which is amended as the original decree no longer retains its form. The amendment gives a fresh starting point of limitation. Even though Article 136 does not contain the words ‘in case of an appeal’, the courts have construed that it is the appellate decree that is relevant as ultimately it is that decree which becomes capable of execution. In the case of an amendment, the original decree no longer retains its form and what is sought to be executed is the amended decree. Therefore, the words ‘enforceable’ must be construed with reference to the decree that is sought to be enforced. Reckoned from the date of the amendment, the execution petition filed is within time.”
