Report No. 89
42.61.Article 136.- Article 136 reads as unde.-
|"136.||For the execution of any decree (other than a decree granting a mandatory injunction) or order of any civil court.||
|Where 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 of at recurring periods, when default in making the payment or deliver yin 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."|
Corresponding provisions in the Act of 1908 were contained in Articles 182 and 183, which were much more elaborate. As the entire scheme has been changed, no useful purpose would be served by quoting the earlier provisions.
Parallel provisions in the Act of 1877 were contained in Articles 179 and 180, which also need not be quoted. Parallel provisions in the Act of 1871 were contained in Articles 167, 168 and 169.
42.62.Law Commission's Report.- The Law Commission, in its Report1 on the Act of 1908, observed as under, with reference to Article 182 (applications for executions):
"170. Article 182 has been a very fruitful source of litigation and is a weapon in the hands of both the dishonest decree-holder and the dishonest judgment debtor. It has given rise to innumerable decisions. The commentary in Rustomji's Limitation Act (5th Edn.) on this article itself covers nearly 200 pages.
In our opinion the maximum period of limitation for the execution of a decree or order of any civil court should be 12 years from the date when the decree or order became enforceable (which is usually the date of the decree) or where the decree or subsequent order directs any payment of "money or the delivery of any property to be made at a certain date or at recurring periods, the date of the default in making the payment or delivery in respect of which the applicant seeks to execute the decree.
There is, therefore, no need for a provision compelling the decree-holder to keep the decree alive by making an application every three years. There exists a provision already in section 48 of the Civil Procedure Code that a decree ceases to be enforceable after a period of 12 years. In England also, the time fixed for enforcing a judgment is 12 years. Either the decree-holder succeeds in realising his decree within this period or he fails and there should be no provision enabling the execution of a decree after that period.
To this provision an exception will have to be made to the effect that the court may order the execution of a decree upon an application presented after the expiration of the period of 12 years, where the judgment-debtor has, by fraud or force, prevented the execution of the decree at some time within the twelve years immediately preceding the date of the application. Section 48 of the Civil Procedure Code may be deleted and its provisions may be incorporated in this Act. Article 183 should be deleted..."
In pursuance of the aforesaid recommendation, the present article has been enacted in place of Articles 182 and 183 of the 1908 Act. Section 48, Code of Civil Procedure 1908 has been repealed.
1. Law Commission of India, 3rd Report, (Limitation Act, 1908), para. 170.
42.63.No change needed.- There is extensive case law on the corresponding articles of the earlier Act; and we have examined a large number of those cases. We find that most of the controversies that once arose now do not survive, the matter having been either settled by subsequent Supreme Court decisions or clarified or rendered obsolete by the changes made by the Act of 1963. Hence, no change is needed in the article under consideration.