Manohar
S/O Shankar Nale and Others Vs. Jaipalsing S/O Shivlalsing Rajput and Others
[2007] Insc 1159 (20
November 2007)
S.B.
Sinha & Harjit Singh Bedi
[Arising
out of SLP(C) No. 25959 of 2005] S.B. SINHA, J.
1.
Leave granted.
2.
Applicability of the provisions of Article 136 as contained in the Schedule
appended to the Limitation Act, 1963 is in question in this appeal which arises
out of a judgment and order dated 26.7.2005 passed by a learned Single Judge of
the Bombay High Court, Nagpur Bench at Nagpur in Writ Petition No. 5927 of 2004
affirming an order dated 26.10.2004 passed by the Civil Judge, Junior Division
in Regular Darkhast No. 32 of 2001.
3. Shivlalsing,
predecessor-in-interest of the respondents filed a suit in the Court of Civil
Judge, Junior Division, Malkapur. The said suit was marked as Regular Civil
Suit No. 250/1965. It was dismissed on 24.12.1968. An appeal preferred thereagainst
was also dismissed. However, a second appeal filed by the plaintiff-decree
holder was allowed upon setting aside the judgment and decree of the
Courts below, the operative portion whereof reads as under :
For
the reasons stated in the accompanying judgment, the court allows the appeal,
sets aside the decrees of both the courts below dismissing the suit and
instead. The Court orders that the plaintiffs suit for possession of 32 gunthas
area, as shown in the copy of the map Exh. 30, from out of Survey No. 59/1 area
3 acres 12 gunthas, shall stand decreed with costs throughout. The appellant-
plaintiff is also entitled to an enquiry under the provisions of the Order XX
Rule 12(1) C.P.C. for mesne profit in respect of the suit land from the date of
the suit till the actual delivery of possession.
4. An
application for review thereof was filed by the predecessor-in- interest of the
appellants herein. The said review petition was dismissed by an Order dated
12.8.1985. Appellants preferred a special leave petition thereagainst before
this Court and leave having been granted, the matter was marked as Civil Appeal
No. 1836 of 1986.
5. By
an Order dated 21.3.1988, this Court passed an order of stay in the following terms
:
The
Application for Stay above mentioned being called on for hearing before this
Court on the 21st day of March, 1988 upon hearing Counsel for the parties
herein. This Court Doth Order that the order of this Court dated the 8th May, 1986 passed in Civil Miscellaneous
Petition No. 10447 of 1986 be and is hereby confirmed and that pending the
hearing and final disposal by this Court of the appeal above mentioned, the
operation of the Order dated the 1st July, 1985 of the High Court of Judicature
at Bombay (Nagpur Bench) Nagpur in Miscellaneous Civil Application No. 134 of
1984 in Second Appeal No. 158 of 1972 be and is hereby stayed and the Civil Judge,
Junior Division, Malkapur, Maharashtra be and is hereby directed to ascertain
the amount of mesne profits which shall be deposited by the appellant
herein.
6. The
said appeal, however, came to be dismissed as being incompetent by this Court
opining that no appeal lay in terms of Order 47 Rule 7 of the Code of Civil
Procedure rejecting a review application.
7.
Admittedly, an application for executing the said decree was filed by the
decree holder only on 10.12.2001. Appellant, having been noticed in the said
execution proceeding, inter alia, raised a contention about maintainability
thereof on the premise that the same was barred by limitation. The Executing Court by an Order dated 26.10.2004
rejected the said contention holding :
It
is only a disputed point as to whether the decree was stayed by Honble Apex Court. If it was stayed, the Darkhast
would be within limitation and if not, it would not be Record of original darkhast
is called for copy of writ in respect of stay is on the said record, from Honble
Apex Court stayed the effect and operation of the order passed by Honble
High Court while deciding review petition against the order passed in Second
Appeal. It is submitted by Shri Tarkase, learned counsel for the J.D. that the
original decree was not stayed. It is submitted by Shri Rawant, learned counsel
for the D.H. that the said order had the effect of staying the original decree
as it merged into the orders passed by Honble High Court. I am in
agreement with this submission of Shri Rawant.
Shri Tarkase,
learned counsel for the J.D. placed his reliance on the decision in the case of
Ram Ratan 288. But, there was to stay is that case (sic) and hence the ratio is
not applicable to the facts of the present case.
Hence,
there is no substance in the submission that the execution is not within
limitation. Hence, I hold that the execution is well within limitation as an
order of stay to the order of Honble High Court was operating.
8. As
noticed hereinbefore, a learned Single Judge of the Bombay High Court, Nagpur
Bench, Nagpur by reason of the impugned judgment
dated 26.7.2005 dismissed the writ petition preferred by the appellant thereagainst
stating;
The
learned trial court while rejecting the application has found that the judgment
and decree dated 02/09/1983 had merged into the order of this
Court while rejecting review dated 01/07/1985. He, therefore, submits that the
effect of the stay granted by the Apex Court was to stay the execution of the decree and as such the execution of
the decree cannot be proceeded till vacation of the stay by the Apex Court. The execution of proceedings have
been filed within a period of 12 days from the date on which the Apex Court had vacated the stay.
In
that view of the matter, I do not find any perversity or infirmity in the
jurisdiction exercised by the learned trial court so as to warrant any
interference of this court in the extraordinary jurisdiction under Article 227
of the Constitution of India. Hence the petition is rejected.
9. Mr.
Satyajit A. Desai, learned counsel appearing on behalf of the appellant in
support of the appeal would submit that the learned Courts below acted
illegally and without jurisdiction in passing the impugned judgment insofar as
they failed to take into consideration that no order having been passed by this
Court staying execution of the proceedings or operation of the judgment and
decree, the impugned judgment must be set aside being wholly unsustainable in
law.
Mr. Makarand
D. Adkar, learned counsel appearing on behalf of the respondents, on the other
hand, would submit that a composite decree having been passed by the High Court
and furthermore in view of the fact that this Court in its order dated
21.3.1988 clearly directed computation of mesne profit, the execution case was
not barred by limitation.
It was
further submitted that the remedy of review being a statutory remedy available
to an aggrieved party, an Order passed in such proceedings would merge with the
main judgment and decree.
10.
The decree passed by the High Court in the aforementioned Second Appeal No. 158
of 1972 is in two parts. The Court granted a decree for possession In respect
of an area measuring 32 gunthas, as delineated in the map Exh. 30, out of
Survey No. 59/1 measuring 3 acres 12 gunthas.
Respondent
was also found to be entitled to an enquiry in terms of Order 20 Rule 12 of the
Code of Civil Procedure in regard to computation of mesne profit from the date
of the institution of the suit, till the date of the actual delivery of
possession. It is therefore, not correct to contend that the decree was a
composite one. The proceeding for computation of mesne profit required to be
undertaken in terms of Order 20 Rule 12 of the Code of Civil Procedure was
subject to institution of a proceeding but, by reason thereof, the execution of
the decree in regard to the possession of 30 gunthas of land was not required
to be awaited till the outcome.
11. It
is also incorrect to contend that in a case of this nature, namely where a
review petition was dismissed, the doctrine of merger will have any application
whatsoever.
It is
one thing to say that the respondent was entitled to file an application for
review in terms of Section 114 read with Order 47 Rule 1 of the Code of Civil
Procedure, but it is another thing to say that the decree passed in favour of
the respondent merged with the order dismissing the review application. Matter
might have been different, if the review application had been allowed either
wholly or in part in terms whereof an application for execution of the decree
could have been filed only in terms of the modified decree.
It is
not the contention of the respondent that any order of stay was passed in the
review application. There was, thus, no bar in proceeding with the execution
case.
12. Keeping
in view the aforenoticed factual backdrop, we may notice the law applicable
herein.
Article
136 of the Limitation Act reads as under:- Description of application Period of
limitation Time from which period begins to run 136 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 at 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 limitation
13.
The decree of possession passed in favour of the respondent became enforceable
immediately on its passing. An execution petition therefor was required to be
filed within a period of 12 years.
In W.B.
Essential Commodities Supply Corpn. v Swadesh Agro Farming & Storage Pvt.
Ltd., [(1999) 8 SCC 315], this Court opined;
(1)
A decree or order is said to be enforceable when it is executable. For a
decree to be executable, it must be in existence. A decree would be deemed to
come into existence immediately on the pronouncement of the judgment. But it is
a fact of which judicial notice may be taken of that drawing up and signing of
the decree takes some time after the pronouncement of the judgment; the Code of
Civil Procedure itself enjoins that the decree shall be drawn up expeditiously
and in any case within 15 days from the date of the judgment. If the decree
were to bear the date when it is actually drawn up and signed then that date
will be incompatible with the date of the judgment. This incongruity is taken
care of by Order 20 Rule 7 CPC which, inter alia, provides that the decree
shall bear the date and the day on which the judgment was pronounced. (2)Rule
6-A enjoins that the last paragraph of the judgment shall state in precise
terms the relief which has been granted by such judgment. It has fixed the
outer time-limit of 15 days from the date of pronouncement of the judgment
within which the decree must be drawn up.
In the
event of the decree not so drawn Rule 1 of Order 41 CPC without filing a copy
of the decree appealed against and for that purpose the last paragraph of the
judgment shall be treated as a decree. For the purpose of execution also,
provision is made in clause (b) of the said sub-rule which says that so long as
the decree is not drawn up, the last paragraph of the judgment shall be deemed
to be a decree. Clause (b) has thus enabled the party interested in executing
the decree before it is drawn up to apply for a copy of the last paragraph
only, without being required to apply for a copy of the whole of the judgment.
It further lays down that the last paragraph of the judgment shall cease to
have the effect of the decree for purposes of execution or for any other
purposes when the decree has been drawn up. (3) It follows that the
decree became enforceable the moment the judgment is delivered and merely
because there will be delay in drawing up of the decree, it cannot be said that
the decree is not enforceable till it is prepared. This is so because an
enforceable decree in one form or the other is available to a decree-holder
from the date of the judgment till the expiry of the period of limitation under
Article 136 of the Limitation Act. [(2007) 2 SCC 355] Others [(2006)
13 SCALE 511], this Court opined;
9.
Under Article 136 to the Schedule of the Limitation Act, 1963 the period for
applying for execution of any decree is 12 years from the date when the decree
becomes enforceable. Since in the present case the final decree was passed and
became enforceable on 15.1.1987, the period of limitation for filing an
execution application expired on 15.1.1999
15.
The order of purported stay passed by this Court in terms of its Order dated
21.3.1988 is also of no assistance to the plaintiff-decree holder. The Special
Leave Petition was filed only against the Order dated 1.7.1985 refusing to
review its judgment and decree dated 2.9.1983. The stay of operation of the
Order dated 1.7.1985 for all intent and purport was meaningless as the review
petition already stood dismissed.
16.
Further direction of this Court that computation of mesne profit would go on
and the same would be deposited by the appellant is of no consequence inasmuch
as by reason thereof neither proceeding was stayed nor the operation of the
judgment and decree had been stayed. In fact, it was an order passed in favour
of the decree holder. The said direction did not come in his way to execute the
decree for possession.
17.
We, therefore, do not see any reason to hold that the said order could be
construed to be one passed in favour of the decree holder-respondent as was
contended or otherwise.
Mr. Adkar
relies upon the decision of this Court in Rekha Mukherjee v. Ashis Kumar Das
and Others [(2005) 3 SCC 427] which has no application in the present case.
18.
We, therefore, are of the opinion that the Executing Court as well as the High Court committed a manifest error in
opining that the Execution Petition was not barred by limitation. The appeal is
allowed. The impugned judgment is set aside with costs. Counsel fee quantified
at Rs. 5,000/-.
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