Ram Bachan
Rai & Ors Vs. Ram Udar Rai & Ors [2006] Insc 277 (5 May 2006)
Arijit
Pasayat & Tarun Chatterjee Arijit Pasayat, J.
Challenge
in this appeal is to the order of a learned Single Judge of the Patna High
Court summarily rejecting the Civil Revision filed by the appellants under
Section 115 of the Code of Civil Procedure, 1908 (in short the 'Code').
The
Civil Revision was filed against the order of the Executing Court allowing the application for
execution of a decree which was passed more than 14 years ago.
A
brief reference to the factual aspect would suffice.
The
respondents-plaintiffs filed a suit for declaration of title and recovery of
possession in which the appellants had appeared and filed a written statement.
The suit was decreed ex parte as the defendants did not appear on the date
fixed. The ex parte decree in the concerned suit was passed on 3.5.1976. No
appeal was, however, filed against the aforesaid judgment and decree. The
present appellants who are the judgment debtors filed an application under
Order IX Rule 13 CPC for setting aside the ex parte decree which was dismissed
for default on 14.7.1978. The said application was not restored by the trial
Court and a Miscellaneous Appeal filed also stood dismissed on 10.1.1987. The
Civil revision filed against the order of dismissal was also dismissed on
6.4.1987. At no stage any stay was granted by any Court and the respondents as
decree holders filed an application for execution on 5.4.1991. According to the
appellants, only a symbolic possession was taken as no notice as mandatorily
required to be served in terms of Order XXI Rule 22 or Order XXI Rule 58 of the
Code of Civil Procedure was ever served on the judgment debtors.
When
the judgment debtors came to know of the symbolic possession taken by the
decree holders, they filed objection under Section 47 CPC saying that the
decree was not legally enforceable as it was barred by time.
The
learned Subordinate Judge dismissed the objection holding that the period of
twelve years had to be counted from the date of dismissal of the Civil Revision
by the High Court i.e. from 6.4.1987 as the ex- parte decree had merged in it.
As already noted, the Civil Revision was summarily dismissed.
In
support of the appeal, learned counsel for the appellants submitted that the
High Court was not justified in summarily rejecting the Civil Revision.
According
to him, the Executing
Court had erroneously
held that the period of limitation had to be reckoned with effect from the date
of dismissal of the Civil Revision. On the contrary, in view of what has been
stated in W.B. Essential Commodities Supply Corporation v. Swadesh Agro Farming
& Storage Pvt. Ltd. and Anr. (1999 (8) SCC 315) the application was clearly
filed beyond the period of limitation. Article 136 of the Limitation Act, 1963
(in short the 'Limitation Act') provides for a period of 12 years for filing an
application for execution of a decree for recovery of immovable property. Since
the application was filed on 5.4.1991 it was beyond the period of limitation.
In
response, learned counsel for the respondents submitted that the judgment and
decree dated 3.5.1976 was passed in the suit admittedly under Order XX Rule 7
of the CPC. As the cost for enforcement of the decree was not quantified, the
period of limitation could not have commenced from the date of judgment and the
decree.
The
basic issue, therefore, is when would the period of limitation for execution of
a decree passed in a suit commence. Article 136 of the Limitation Act reads as
follows:
Description
of application Period of limitation Time from which period begins to run for
the execution of any decree (other than a decree granting a mandatory
injunction) or order of any civil Court.
Twelve
years When the decree or order becomes enforceable or where the decree or any
subsequent order directs any payment of money or the delivery of any property
to be made tat a certain date or at recurring periods, when default in making
the payment or delivery in respect of which execution is sought, takes place;
Provided
that an application for the enforcement or execution of a decree granting a
perpetual injunction shall not be subject to any period of imitation.
Noticing
some conflicts in views expressed by two Judge Benches judgment of this Court,
reference was made to a three Judge Bench in Chiranjilal (dead) by Lrs. V. Hari
Das (dead) by Lrs. (2005(2) SCC 261). A three Judge Bench by its judgment dated
May 13, 2005 in Dr. Chiranji Lal (D) by Lrs. V. Hari
Das (d) by Lrs. (2005 (10) SCC 746) has decided the matter observing inter-alia
as follows:
-
"A decree in a suit for
partition declares the right of the parties in the immovable properties and
divides the shares by metes and bounds. Since a decree in suit for partition
creates rights and liabilities of the parties with respect to the immovable
properties, it is considered as an instrument liable for the payment of stamp
duty under the Indian Stamp Act. The object of the Stamp Act being securing the
revenue for the State, the scheme of the Stamp Act provides that a decree of
partition not duly stamped can be impounded and once the requisite stamp duty
along with penalty, if any, is paid the decree can be acted upon." In
paragraph 25 of the same decision, this Court also observed as follows:
-
The engrossment of the final decree
in a suit for partition would relate back to the date of the decree. The
beginning of the period of limitation for executing such a decree cannot be
made to depend upon date of the engrossment of such a decree on the stamp
paper. The date of furnishing of stamp paper is an uncertain act, within the
domain, purview and control of a party. No date or period is fixed for
furnishing stamp papers. No rule has been shown to us requiring the Court to
call upon or give any time for furnishing of stamp paper. A party by his own
act of not furnishing stamp paper cannot stop the running of period of
limitation. None can take advantage of his own wrong. The proposition that
period of thereupon an only thereafter the period limitation would remain
suspended till stamp paper is furnished and decree engrossed of twelve years
will begin to run would lead to absurdity. In Yeswant Deorao Deshmukh v. Walchand
Ramchand Kothari, it was said that the payment of court fee on the amount found
due was entirely in the power of the decree- holder and there was nothing to
prevent him from paying it then and there; it was a decree capable of execution
from the very date it was passed. (Emphasis supplied) In view of the said
decision, the inevitable conclusion is that the Executing Court was not correct in its view. It is to be noted that learned
counsel for the respondents conceded to the position that the period of
limitation is not to be reckoned from the date of dismissal of the Civil
Revision which was filed relating to rejection of the application under Order
IX Rule 13, CPC. The entire focus was on the date from which the period of
limitation is to be reckoned. Reliance was placed on a decision of the Calcutta
High Court in Ram Nath Das and Ors. v. Saha Chowdhury and Co. Ltd. and Ors.
(AIR 1974 Cal 246) where it was held that the decree was enforceable and when
cost is assessed. The ratio in the said judgment clearly runs counter to what
has been stated in Dr. Chiranji Lal's case (supra).
For
the reasons aforesaid, the application for execution filed on 5.4.1991 was
clearly time barred having been filed beyond the period of twelve years
prescribed under Article 136 of the Limitation Act.
Accordingly
the High Court as well as the Executing Court
committed illegality in coming to a conclusion that it was not barred by
limitation. Therefore, the inevitable result is that the order passed by the
High Court and the Executing
Court cannot be
maintained and are set aside.
The
appeal is allowed. The application for execution stands rejected. No costs.
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