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2007 DIGILAW 102 (GAU)

Lohit Prokash Dutta v. Kanai Dutta

2007-02-01

I.A.ANSARI

body2007
JUDGMENT I.A. Ansari, J. 1. This revision is directed against the order, dated 22.3.2005, passed by the learned Civil Judge (Jr. Divn.) No. 1, Jorhat, in Title Execution Case No. 15/1979, whereby the learned Court below dismissed the execution proceeding. 2. The facts giving rise to the present revision may, in a nutshell, be set out as follows: (i) The present petitioner's predecessor-in-interest, Sailadhar Dutta, instituted TS No. 2/1978 for eviction of the opposite party herein, as defendant in the suit, from a piece of land, which was described by boundaries and area in the plaint. The suit was decreed on 15.9.1978. The decree, so granted, had two parts, one for possession of the land by evicting the defendant therefrom and the other part was regarding realization of money. Pursuant to the Title Execution No. 15/1979, which the decree-holder initiated, the decree-holder received delivery of possession of 5 Lessas of land, though the defendant-judgment debtor was actually in possession of 15 Lessas of the decree-holder's land. As the decree was in respect of 5 Lessas of land, the judgment-debtor remained in the remaining portion of the land. The decree-holder, then, applied for amendment of the decree by an application, dated 11.3.1980, his case being, in brief, that it was following an inadvertent error that the measurement of the land was mentioned in the schedule of the plaint as 5 Lessas instead of 15 Lessas and that the mistake, being clerical in nature, be corrected. This petition was summarily rejected by the learned Munsiff No. 1 on 5.8.1981. The decree-holder, then, came to this Court with a revision petition, which gave rise to Civil Revision No. 64 of 1982. While the revision was pending in this Court, the decree-holder made an application, in the execution proceeding, praying for stay of the said proceeding on account of pendency of the revision petition. This prayer was allowed on 30.5.1980 and it was directed by the learned Executing Court that the execution proceeding shall remain stayed. This direction staying the execution proceeding was not vacated at any later stage, (ii) In the revision, the Court observed as follows: 7. Considering that the petitioner had filed suit for ejectment of the opposite party it may be reasonable to think that the petitioner wanted to eject the opposite party from the entire land in latter's possession. This direction staying the execution proceeding was not vacated at any later stage, (ii) In the revision, the Court observed as follows: 7. Considering that the petitioner had filed suit for ejectment of the opposite party it may be reasonable to think that the petitioner wanted to eject the opposite party from the entire land in latter's possession. Moreover, the description of the land in the plaint does appear to suggest that the petitioner had intended to eject the opposite party from the entire land in his occupation and not from only a portion of it, for it was stated that there was plaintiff's own land of the patta, on the east and north. On the remaining sides were the boundary fencing and the road. In the circumstances, it appears that the petitioner had raised a substantial question which should have been heard and considered on merits. 8. It is true that the petitioner had in the earlier applications stated that the land in possession of the opposite party was 10 lechas, and in another application it was stated to be 15 lechas. While it may be said that there was some negligence but any error by accidental slip or omission or clerical mistake is also not without an element of negligence. The fact therefore that there was some element of negligence does not in my opinion mean that there could be no clerical mistake or that the error could be no clerical mistake or that the error could not be due to accidental slip or omission in the preparation of the plaint and consequently in the decree or in the application for amendment. In any case, the probability that it can be a clerical mistake or an error due to accidental slip or omission in my opinion cannot be and should not be excluded or ruled out. (iii) For the conclusions, as reached above, the Court, on 26.7.1988, allowed the revision, set aside the order, dated 5.8.1981, aforementioned and remanded the case to the learned Court below for considering afresh the decree-holder's application for amendment of the decree. [See Shri Sailadhar Dutta v. Shri Kanai Dutta reported in 1988 (2) GLJ 298. (iii) For the conclusions, as reached above, the Court, on 26.7.1988, allowed the revision, set aside the order, dated 5.8.1981, aforementioned and remanded the case to the learned Court below for considering afresh the decree-holder's application for amendment of the decree. [See Shri Sailadhar Dutta v. Shri Kanai Dutta reported in 1988 (2) GLJ 298. Following the remand, the learned Munsiff No. 1, on 16.9.1988, passed an order, in Title Execution No. 15/1979, aforementioned allowing the decree-holder's prayer by amending, in the decree, the area of the decretal land as 15 Lessas in place of 5 Lessas. However, the decree-holder, thereafter, did not take necessary steps for execution of the amended decree. Upon his death, the legal representatives of the decree-holder applied, on 10.12.2004, in Title Execution No. 15/1979 aforementioned, for execution of the amended decree. It is worth emphasizing that until 10.12.2004, i.e., till making of the said application seeking execution of the amended decree, the said execution proceeding had remained stayed by a subsequent order passed, on 21.7.1980, in the said execution proceeding. (iv) The application, so made, on 10.12.2004, for execution of the amended decree was resisted by the judgment-debtor on the ground that the decree, having been amended on 16.9.1988 and the same having been remained without being executed for more than 12 years, is barred by Article 136 of the Limitation Act, 1963. The learned Court below accepted the objection so raised by the judgment-debtor and has dismissed the execution proceeding. It is against this order that the present revision has been filed by the petitioners as legal representatives of the decree-holder. 3. I have heard Mr. G.N. Sahewalla, learned Senior Counsel, for the petitioners, and Mr. D.C. Mahanta, learned Senior counsel, appearing on behalf of the opposite party. 4. Presenting the case on behalf of the petitioner, Mr. Sahewalla has submitted that since the Title Execution No. 15/1979 had been kept stayed, the time could not have been held to have started running with effect from 16.9.1988, when the amended decree was drawn. In support of this submission, Mr. Sahewalla places reliance on Government of Rajasthan and Anr. v. Sangram Singh and Ors. In the present case, contends Mr. In support of this submission, Mr. Sahewalla places reliance on Government of Rajasthan and Anr. v. Sangram Singh and Ors. In the present case, contends Mr. Sahewalla, the learned executing Court committed serious error of jurisdiction in treating the decree, in question, as having stood barred by limitation merely on the ground that the stay of the execution proceeding was at the request of the decree-holder. This view taken by the learned Court below is, according to Mr. Sahewalla, completely incorrect and not sustainable in law. 5. Controverting the submission made on behalf of the petitioners, Mr. Mahanta has submitted that under Article 136, a decree must be executed within 12 years from the date, when the decree becomes enforceable. In the present case, according Mr. Mahanta, the amended decree came into force on 16.9.1988, i.e., the date on which the decree was amended, and since pursuant to this decree, no execution proceeding was initiated until 2004, the decree, so amended, had become non-executable by efflux of time. Support for this submission is sought to be derived by Mr. Mahanta from the decision in Fatimunnisa Begum v. Mahammed Zainulabuddin Sahed (deceased by LRs) and Ors. AIR 1986 AP 355 and Ratan Singh v. Vijay Singh and Ors. reported in (2001) 1 SCC 469 . 6. While considering the correctness or otherwise of the rival submissions made before me on behalf of the parties, what is of utmost importance to note is that under Article 182 of the Limitation Act, 1908, a decree was enforceable on the date on which the decree was made. As the meaning of the expression "date of the decree" had led to divergent interpretations, the legislature did away with the expression "date of the decree" as the date for commencement of the period of limitation and made the date of enforceability of the decree as the date on which the period of limitation shall be treated to have commenced. It is in this backdrop that Article 136 of the Limitation Act needs to be considered. 7. To some extent, the reliance placed by Mr. Sahewalla, on the decision of Sangram Singh (supra), is not misplaced, for, the Full Bench of Rajasthan High Court, in Sangram Singh (supra), speaking through Bhandari, J, observed as follows: 33. It is in this backdrop that Article 136 of the Limitation Act needs to be considered. 7. To some extent, the reliance placed by Mr. Sahewalla, on the decision of Sangram Singh (supra), is not misplaced, for, the Full Bench of Rajasthan High Court, in Sangram Singh (supra), speaking through Bhandari, J, observed as follows: 33. Thus, in the present case, I find that the record of the previous application for the enforcement of the decree was consigned to record room by the order of the Court. The previous application for enforcement of the decree was not dismissed at the instance of the decree-holder. In considering whether an application is for the revival of the previous application or not there is no question of partial or total stay. What is to be considered is whether the previous execution application was disposed of or was kept pending. If it was kept pending, it automatically follows that it can be revived either suo moto by the Court or being invited to do so by the decree-holder. This part should be borne in mind while applying the principles of revival. Considering of a case to record without properly disposing it off is an act of the Court and a decree-holder cannot be penalized by treating such application as disposed of and not pending. I am, therefore, of the opinion that the present application of the decree-holder for the enforcement of the decree is an application for the revival of their old execution application which was not disposed of but was only consigned to record. In this view of the matter, I would dismiss the appeal with costs. 8. In the light of what has been observed in Sangram Singh (supra), it is clear that when the execution proceeding was kept pending, it could have been revived either suo moto by the Court or on a prayer of the decree-holder. Thus, when the decree-holder, in the present case, had not moved the Court and the Court had also not suo moto vacated the stay of the execution proceeding, the logical conclusion has to be that the period of limitation had not started running against the decree, when it was amended on 16.9.1988. 9. There can be no dispute with the proposition of law advanced by Mr. 9. There can be no dispute with the proposition of law advanced by Mr. Mahanta that under Article 136, the period of limitation would start running against a decree from the date, when the decree becomes enforceable. In the present case, however, 16.9.1988 is not the date of the original decree; rather, 16.9.1988 is the date of the amended decree. This amended decree would have been, ordinarily, enforceable with effect from 16.9.1988. However, this amended decree could not have been executed without the executing Court having vacated the stay, which it had imposed on the said execution proceeding. An amended decree, one must bear in mind, is not a decree whally divorced from, or completely independent of, the original decree. In fact, on amendment of a decree, the original decree is subsumed by, and merges into, the amended decree. An amended decree comes into force on the date, when the amended decree is prepared. If an execution proceeding was already pending before the decree, sought to be executed, was subsequently amended, the amended decree would not give rise to a fresh execution proceeding, but has to be made a part of the execution proceeding, which was already pending on the date, when the amended decree was prepared. It is, thus, clear that an independent execution proceeding could not have been started on the strength of the amended decree. No wonder, therefore, that it has not been questioned, in the execution proceeding, that the present petitioners ought to have initiated a separate execution proceeding on the strength of the amended decree. 10. What follows from the above discussion is that the amended decree could not have been executed until the stay, granted by the learned executing Court on further progress of the execution proceeding, was vacated. It is, no doubt, true that since the stay was granted at the behest of the decree holder, the decree-holder could have prayed for vacating the stay. The fact, however, remains that as long as the execution proceeding had remained stayed, the amended decree-could not have been executed. 11. What, thus, emerges from the above discussion is that notwithstanding the fact that the decree was amended on 16.9.1988, the period of limitation cannot be said to have been started running until the time the stay on the execution proceeding was vacated. 11. What, thus, emerges from the above discussion is that notwithstanding the fact that the decree was amended on 16.9.1988, the period of limitation cannot be said to have been started running until the time the stay on the execution proceeding was vacated. In other words, though the amended decree became enforceable on 16.9.1988, the fact remains that the period of limitation did not start running, because of the stay of the execution proceeding and since the stay had not been vacated, this decree could not have been executed and a decree, which cannot be executed because of a stay order, the period of limitation cannot be held to have started running against such a decree. 12. Because of what have been discussed and pointed out above, I have no hesitation in holding that the learned executing Court ought to have vacated the stay on the execution proceeding and, then, proceeded to execute the amended decree. 13. In the result, and for the reasons discussed above, this revision succeeds. The impugned order, dated 22.3.2005, is hereby set aside and the matter is remanded to the learned Court below with direction to pass appropriate orders in the light of the observations made hereinabove and proceed with the execution of the said decree. Send back the LCR. Petition allowed.