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1990 DIGILAW 174 (ALL)

Rama Singh v. Vth Addl. District Judge

1990-02-12

S.N.SAHAY

body1990
JUDGMENT S.N. Sahay, J. - This short question which arises for determination in this case is whether the application for execution of the final decree passed in a suit for partition is barred by time. 2. The material facts giving rise to this writ petition are not disputed. The suit for partition was filed by Sri Shyam Narain Sinha, Opposite Party No. 3, and in that suit the preliminary decree was passed on 17.5.66 and the final decree was passed, on 13.4.68. Dr. Bipin Behari Sinha, predecessor-in-interest of the petitioners, applied under Order IX, Rule 13, C.P.C. for setting aside the aforesaid final decree. The application was rejected on 23.12.69 and the appeal filed against the order of rejection was also dismissed on 24.5.69. In the meantime, the Opposite Party No. 3 deposited the requisite stamp papers in Court on 16.1.70 and the final decree was drawn on 31.1.70. The Opposite Party No. 3 made' an application dated 11.7.80 for execution of the final decree. Dr. Bipin Behari Sinha filed an objection under Section 47, C.P.C. that the execution application was barred by time. The objection was, however overruled by the learned Civil Judge, Gonda who, by his order dated 8.12.80 rejected the application under Section 47, C.P.C. Dr. Sinha filed revision against the said order and the revision was also dismissed by the learned V Additional District Judge, Gonda on 26.2.85. Copies of the orders passed by the learned Civil Judge and the learned Additional District Judge have been filed as Annexures Nos. 7 and 10 respectively to the writ petition. 3. Sri H.N. Tilhari, learned counsel for the petitioners, has urged that both the courts below have erred in taking the view that the execution application is not barred by time. He has submitted that the final decree was passed on 13.4.68 and the decree could not be drawn until 31.1.70 because of the fact that the Opposite Party No. 3 failed to deposit the requisite stamp papers until 16.1.70. It was accordingly contended that time will begin to run from 13.4.68 and the Opposite Party No. 3 could not stop the running of time by his own inaction or negligence and in that case the application for execution which was filed on 11.6.80 would be barred by time. It was accordingly contended that time will begin to run from 13.4.68 and the Opposite Party No. 3 could not stop the running of time by his own inaction or negligence and in that case the application for execution which was filed on 11.6.80 would be barred by time. In support of this contention the learned counsel has placed reliance on Yeshwant Deorao v. Walchand Ramchand, AIR 1951 S.C. 16 , Lala Bal Mukand v. Lajwanti and others, AIR 1975 SC 1089 and Udayan Chinubhai v. R.C. Bali, AIR 1977 S.C. 2319 . On the other hand, Sri N.N. Jaiswal, learned counsel for the respondents has submitted that since the decree was not drawn till 31.1.70 there was no decree which was enforceable within the meaning of Article 136 of the Limitation Act, 1963 and so time will begin to run from that date. He has contended that the execution application is within limitation and the objection filed under Section 47, C.P.C. was rightly dismissed. 4. It is common ground between the parties that the limitation in this case will be governed by Article 136 of the Limitation Act, 1963. Article 136 provides that the limitation for the execution of any decree (other than a decree granting a mandatory injunction or order of any Civil Court shall be twelve years. Time from which period begins to run, will be when the decree or order becomes enforceable or where the decree or any subsequent order directs and payment of money or the delivery of any property to be made at a certain date or at recurring period when default in making the payment of delivery in respect of which execution is sought takes place. An application for the enforcement or execution of a decree granting a perpetual injunction shall not, however, be subject to any period of limitation. It is necessarily applied in the above provision that there should be a decree or order in existence and that the same should be enforceable. When these two conditions are satisfied the right to apply for execution of a decree or order will arise. In case any of these conditions does not exist, it will be impossible for the person claiming under the decree or order to apply for its execution. When these two conditions are satisfied the right to apply for execution of a decree or order will arise. In case any of these conditions does not exist, it will be impossible for the person claiming under the decree or order to apply for its execution. The copy of the final decree filed as Annexure 1 to the writ petition will show that the order for preparing the final decree in accordance with the directions given in that order was passed on 13.4.68 and the final decree was actually signed by the learned Civil Judge and issued on 31.1.70. The decree was not in existence before 31.1.70 and to it was impossible for the decree holder to apply for execution of the decree before that date. 5. It is no doubt provided in Order XX, Rule 7, C.P.C. that the decree shall bear date the day on which the judgment was pronounced and when the Judge satisfied himself that the decree has been drawn up in accordance with the judgment, he shall sign the decree. Under Order XX, Rule 21, C.P.C. (as made by this Court) the Judge is also required to make, when he signs the decree, ah autograph note stating the date on which the decree was signed. The detailed procedure for drawing up the decree is given in Rule 21 and the object of the provision is that it must be ensured that the decree has been drawn up in accordance with the judgment. This shows that the decree is not in existence before it is actually drawn up and signed by the Judge. Along with it will, by operation of law, bear the date of pronouncement of judgment, it does not actually come into existence till it is signed by the Judge. The date of signature is, therefore, material for the enforceability of the decree and cannot be ignored altogether. It was, accordingly, held by a Division Bench of this Court in Anant Ram v. Basdeo Sahai and others, 1935 AWR 470 that for purpose of execution of a decree time will begin to run from the date on which the decree is actually prepared and signed by the Judge. In this connection, the Division Bench has also held that the order for preparation of a final decree is not a judgment, as it does not adjudicate upon the rights of the parties. In this connection, the Division Bench has also held that the order for preparation of a final decree is not a judgment, as it does not adjudicate upon the rights of the parties. The learned Additional District Judge has rightly held that before 31.1.70, the final decree was not in existence and could not be enforced in this case and, therefore, the period of 12 years prescribed under Article 136 will be calculated from the said date. 6. In the cases relied upon by Sri Tilhari, the provisions of Article 136 were not considered; instead the provisions of Section 12 (2) of the Limitation Act were considered. Section 12 (2) provides that in computing the period of limitation for an appeal or on application for leave to appeal or for revision or for review of a judgment, the day on which the judgment complained of was pronounced and the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be revised or reviewed shall be excluded. Before the enactment of the Limitation Act, 1963 there was a difference of opinion among the various High Courts with regard to the interpretation of the words "the time requisite for obtaining a copy of the decree or order". On a strict view, the expression "time requisite" was to be confined to the period commencing with the date of making the application for copy and ending with the date of grant of the copy, in respective of whether the decree or order, copy of which was sought, was in existence or was not in existence. According to the contrary view, which was founded on a liberal interpretation the expression "time requisite" is not restricted to the time actually taken but is wide enough to encompass all the time properly required. Consequently, the time properly taken for the preparation of the decree and the time which properly elapses in the circumstances of the particular case between the pronouncement of the judgment and the signing of the decree should also be excluded as the time necessarily for obtaining its copy. Consequently, the time properly taken for the preparation of the decree and the time which properly elapses in the circumstances of the particular case between the pronouncement of the judgment and the signing of the decree should also be excluded as the time necessarily for obtaining its copy. The conflicts of opinion was resolved in the case of Lala Bal Mukand cited above and it was held that the expression "time requisite" as used in Section 12 (2) means all the time counted from the date of the pronouncement of the judgment (the same being under Order XX. Rule 7, C.P.C. the date of the decree) which would be properly required for getting a copy of the decree including the time which must ex-necessities elapse in the circumstances of the particular case, before a decree is drawn up and signed. It was in this context that it was further laid down that if any period of delay in preparing the decree was attributable to the default or negligence of the party (appellant in that case) he shall not be entitled to the exclusion of such period under Section 12 (2) of the Limitation Act, 1908. 7. The law was enunciated in the above terms on the view that the Limitation Act deprives or restricts the right of an aggrieved person to have recourse to legal remedy, and where its language is ambiguous, that construction should be preferred which preserves such remedy to the one which bars or defeats it. It was observed that a Court ought to avoid an interpretation upon a statute of Limitation by implication or inference as may have a penalising effect, unless it is driven to do so by the irresistible force of the language employed by the legislature. Upon the particular facts of the case, it was found that the appellant was not required to take any steps towards the preparation of a decree and no period of delay in drawing up the decree was attributable to the fault of the appellant. The delay was mainly due to the delayed deposit of the court fees by the plaintiffs and partly due to laxity of the office of the court. The delay was mainly due to the delayed deposit of the court fees by the plaintiffs and partly due to laxity of the office of the court. Under the circumstances, the appellant was held as entitled to the exclusion of the entire time between the date of the pronouncement of the judgment and the date of signing of the decree as the time requisite for obtaining a copy of the decree and after such exclusion the appeal filed by the appellant was held to be within time. 8. In Lala Bal Mukand's case no opinion was expressed on the effect of the explanation to Section 12 of the Limitation Act, 1963. The explanation which did not exist in the earlier enactment was added on the basis of the recommendations of the Law Commission in its 3rd report on the Limitation Act, 1908. The Law Commission recommended that a delay of the office before the application for copy is made, should not count in favour of a party and a suitable provision should be added to make this clear. In accordance with the recommendations of the Law Commission, the corresponding provisions of Section 12 in Limitation Act, 1908 were expanded and applications for revision and leave to appeal were also brought within its scope, and the explanation was added in 1963 Act. In the Act of 1963 the explanation provided that in computing under this section the time requisite for obtaining a copy of the decree or an order any time taken by the Court to prepare the decree or order before an application for a copy thereof is made, shall not be excluded. The provisions of the explanation were interpreted by a Full Bench of the Bombay High Court in Subhash Ganpatrao Buty v. Maroti Krishnaji Darlikar, AIR 1975 Bom. 244 to mean that While computing the time requisite for obtaining a copy of a decree; any time taken by the Court to prepare the decree or order before an application for a copy thereof is made shall be included. The correctness of this view was assailed in the case of Udayan Chinubhai v. R.C. Bali (supra). 244 to mean that While computing the time requisite for obtaining a copy of a decree; any time taken by the Court to prepare the decree or order before an application for a copy thereof is made shall be included. The correctness of this view was assailed in the case of Udayan Chinubhai v. R.C. Bali (supra). After placing the history of the provisions contained in the explanation and referring to the case of Lala Bal Mukand cited above their Lordships of the Supreme Court expressed themselves to be unable to agree with the opinion of the Full Bench of the Bombay High Court. They observed that computation of limitation is pre-dominently the governing factory in Section 12 and the subject-matter of Section 12 (2) and the explanation is identical. They did not approve of reading the words in the explanation "shall not be excluded" by mentally substituting them as "shall be included" for the purpose of construction. They declared the correct legal position to be that under Section 12 (2) read with explanation a person cannot get exclusion of the period that elapsed between the pronouncement of the judgment and the signing of the decree if he made the application for a copy only after preparation of the decree. 9. However, after making the legal position clear in the above terms with regard to the explanation to Section 12 (2), their Lordships proceeded to observe that there may be exceptional cases and accordingly endorsed the view taken in Lala Bal Mukand v. Lajwanti and others (supra) that the time requisite for obtaining a copy under Section 12 (2) must be that time which is "properly require" for getting a copy of the decree". It is not possible to conceive, they observed, how a person may obtain a copy of the decree, if that decree in view of the recitals in the judgment pronounced cannot be prepared without some further action by a party. A judgment which is unconditioned by the requirement of any action by a party stanch on a different footing and in that event the date of the judgment will necessarily be the date of the decree. A judgment which is unconditioned by the requirement of any action by a party stanch on a different footing and in that event the date of the judgment will necessarily be the date of the decree. In such a case; a party cannot take advantage of any ministerial delay in preparing a decree prior to his application for a copy, that is to say, that if there is no impediment in law to prepare decree immediately after pronouncement of the judgment, no matter if, in fact, the decree is prepared after some time elapses. No party in that event, car exclude that time taken by the court for preparing the decree as time requisite for obtaining a copy if an application for a copy of the decree has not been made prior to the preparation of the decree. It is only when there is a legal impediment to prepare a decree on account of certain direction; in the judgment or for non-compliance with such direction or for other legally permissible reasons, the party who is required to comply with such directions or provisions, cannot rely upon the time required by him under these circumstances, as running against his opponent. 10. Dealing with the facts of the particular case in the case of Udayan Chinabhai, their Lordships observed that without deposit of the deficient court fees by the plaintiffs the decree could not be instantly prepared under the law. Time was given to the plaintiff for that purpose and there could be no decree in existence in law until the plaintiff supplied the court fees. Without the existence of the decree, any application for a copy of the decree would be futile. Therefore, on the facts of this case, in view of the operative part of the judgment, the date of the decree was when the plaintiff furnished the court fees as ordered. It was only then for the first time possible to prepare the decree in terms of the judgment. The decree was prepared on the very date on which court fees was paid by the plaintiff. Therefore, the period of 90 days for filing the appeal will count from the date, when the plaintiff had deposited the court fees, as ordered, and the respondents cannot take advantage of his own default to defeat the appellant's appeal on the ground of limitation. 11. Therefore, the period of 90 days for filing the appeal will count from the date, when the plaintiff had deposited the court fees, as ordered, and the respondents cannot take advantage of his own default to defeat the appellant's appeal on the ground of limitation. 11. The learned counsel for the petitioners has also referred to the case of Yeshwant Deorao v. Walchand Ramchand (supra). In that case, it was held that Where the decree provided that the plaintiff should pay the deficit court fees on the decretal amount before the execution of the decree, it could not be considered a conditional decree and it was a decree capable of execution from the very date it was passed. The case of Yeshwant Deorao is distinguishable and is not applicable to the facts of the present case. Moreover a different view seems to have been taken in the case of Lala Bal Mukand cited above, as will appear from para 22 of the judgment in that case. 12. It may be mentioned that by an amendment made by C.P.C. (Amendment Act, 1976) passed after the controversy had arisen in this case, a new Rule 6-A was inserted in Order XX of the Code of Civil Procedure. Rule 6-A provides that the last paragraph of the judgment shall state in precise terms the relief which has been granted by such judgment. However, an endeavour shall be made to ensure that the decree is drawn up as expeditiously as possible, where the decree is not drawn up within 15 days from the date on which the judgment is pronounced, the last paragraph of the judgment shall be deemed to be the decree for the purpose of execution and the party interested shall be entitled to apply for the purpose of execution, and as soon as the decree is drawn up the fast paragraph of the judgment shall cease to have effect of a decree for the purpose of execution or for any other purpose. The statement of Object and Reasons indicates that the new Rule 6-A was inserted with a view to ensure that the delay in the preparation of the decree may not affect the right of a party to file an appeal and in absence of a decree, an appeal may be preferred on the basis of the last paragraph of the judgment and that paragraph may also be used for the purpose of the execution of the decree. This also shows that it is a condition precedent for the execution of a decree that it should have been drawn up and be in existence, and that is why special provision was made to counter effect the delay in the preparation of decree for the purpose of execution as also appeal. 13. In the case before us the question is not with regard to computation of period of limitation under Section 12 (2) or any other provision, but with regard to the starting point of limitation under Article 136. The cases relied upon on behalf of the petitioners have no direct application. However, the default or negligence of the party responsible for the delay in preparation of the decree is to be taken into account in the context of the time requisite, interpreted is time properly required, for getting a copy of the decree, according to the principles laid down in the case of Lala Bal Mukand and Udayan Chinubhai cited above. The conduct of the party is a relevant factor in cases where the propriety of some thing attributable to that conduct is under consideration. No such question arises in the present case. It is remarkable that the drawing up of a decree and coming into existence of a decree is understood to be as inter-changeable terms. That is clear from the observations made in the aforementioned cases, If the decree had not been prepared, it would have been futile for Opposite Party No. 3 to apply for execution of the decree. Apart from this, it has not been shown by the petitioner that the delay in the preparation of the final decree is attributable to the default or negligence of Opposite Party No. 3. The petitioners have filed copies of application under Section 47 C.P.C., objection of Opposite Party No. 3 and memo of appeal filed by Dr. Apart from this, it has not been shown by the petitioner that the delay in the preparation of the final decree is attributable to the default or negligence of Opposite Party No. 3. The petitioners have filed copies of application under Section 47 C.P.C., objection of Opposite Party No. 3 and memo of appeal filed by Dr. Bipin Behari Sinha against the order of the learned Civil Judge as Annexure Nos. 4, 5 and 8 to the writ petition. From a perusal of these documents, it does not appear that Dr. Bipin Behari Sinha has stated the relevant facts, on the basis of which the plea of negligence or default could be raised. It was pleaded in general terms in the application under Section 17 C.P.C. that the final decree was actually passed on 13.4.68 and it was wrongly shown by the decree holder as 31.1.70 in the application for execution and therefore, the execution application was barred by time. It was the duty of the party concerned to state all the material facts and to give the necessary particulars in respect of the plea of default or negligence. This was necessary and in that case the Opposite Party No. 3 would have added notice of the case which he was required to meet and would not be taken by surprise at the time of hearing of their application under Section 47 or the proceedings arising therefor. It was stated by the Opposite Party No.3 in the objection Annexure 5 that soon after the order was passed for preparing final decree, an application was moved under Order IX, Rule 13 for setting aside the same and when that application was rejected on 23.12.69, he deposited the stamp papers within a reasonable time and the final decree itself was prepared and signed on 31.1.70. The explanation given by the Opposite Party No. 3 cannot be brushed aside. There was a reasonable possibility of an order for preparation of final decree being set aside and so it cannot be said that any default or negligence was committed by Opposite Party No. 3 as was responsible for the actual preparation of the decree on 31.1.70. The explanation given by the Opposite Party No. 3 cannot be brushed aside. There was a reasonable possibility of an order for preparation of final decree being set aside and so it cannot be said that any default or negligence was committed by Opposite Party No. 3 as was responsible for the actual preparation of the decree on 31.1.70. On the basis of the materials on record, it cannot be said that the Opposite Party No. 3 failed to take any action which was required to be taken by him on account of certain directions in the judgment. So the plea of the petitioners cannot be accepted that the Opposite Party No. 3 is wrongly taking advantage of his own in-action, default or negligence as against the petitioners and the same can not stop the running of time prescribed under Article 136 for the purpose of applying for execution of the decree. 14. In view of the foregoing discussion, I have come to the conclusion that there is no illegality committed by the courts below in dismissing the application under Section 47 C.P.C. on the ground that the execution application filed by the Opposite Party No. 3 is not time barred. There is no reason to interfere with the impugned orders, contained in Annexures 6, 7 and 10 to the writ petition. The writ petition is accordingly dismissed. The parties are directed to bear their own costs.