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2013 DIGILAW 3579 (MAD)

Fathika Bibi v. Devendran

2013-10-03

B.RAJENDRAN

body2013
Judgment : 1. The Civil Revision Petition has been filed against the order dated 30.11.2000 dismissing E.P. No. 10 of 2000 in O.S. No. 24 of 1924 filed by the revision petitioners herein. 2. The suit in O.S. No. 24 of 1924 was filed for partition in which a preliminary decree for partition was passed on 09.04.1929. On the basis of the Preliminary decree, a final decree was passed on 18.01.1979. While so, the revision petitioners, who are the plaintiffs 2 to 6 in the suit, have filed E.A. No. 10 of 2000 in O.S. No. 24 of 1924 under Order 21 Rule 35 and Section 50 of CPC for execution of the decree. This application was dismissed by the trial court on 30.11.2000 on the ground that the execution application has been filed beyond the period stipulated under the Code. Aggrieved by the same, the present Civil Revision Petition has been filed. 3. The only argument raised by the learned counsel for the petitioner is that for executing the final decree, the period of limitation commences only from the date on which the final decree is engrossed on requisite stamp papers and not from the date of passing of the final decree. Therefore, she would contend that the Execution Petition has been filed within the period of 12 years but the trial court failed to appreciate the same. 4. On the contrary, the learned counsel for the respondents would contend that the trial court is justified in dismissing the Execution Application as time barred. According to the learned counsel for the respondents, the engrossment of the final decree in a suit for partition would relate back to the date of decree. In this context, the learned counsel for the respondents placed reliance on the decision of the Honurable Supreme Court reported in (Bimal Kumar and another vs. Shakuntala Debi and others) AIR 2012 SC 1586 wherein the Honourable Supreme Court held as follows:- "25. 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. 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 papers cannot stop the running of period of limitation. None can take advantage of his own wrong. The proposition that period of limitation would remain suspended till stamp paper is furnished and decree engrossed thereupon and only thereafter the period of twelve years will begin to run would lead to absurdity. In Yeshwant Deorao Deshmukh vs. Watchand Ramchand Kothari ( 1950 SCR 852 : AIR 1951 SC 16 ) 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. 5. The learned counsel for the respondents also relied on the decision of the Honourable Supreme Court reported in (Hameed Joharan (d) and others vs. Abdul Salam (d) by Lrs and others) 2002 1 Law Weekly 442 wherein in para No.38, it was held as follows:- "38......As a matter of fact, if somebody does not wish to furnish the stamp paper within the time specified therein and as required by the Civil Court to draw up the partition decree or if someone does not at all furnish the stamp paper, does that mean and imply, no period of limitation can said to be attracted for execution of a limitless period of limitation is available. The intent of the legislature in engrafting the Limitation Act shall have to be given its proper weightage. Absurdity cannot be the outcome of interpretation by a Court order and wherever there is even a possibility of such absurdity, it would be a plan exercise of judicial power to repel the same rather than encouraging it. The intent of the legislature in engrafting the Limitation Act shall have to be given its proper weightage. Absurdity cannot be the outcome of interpretation by a Court order and wherever there is even a possibility of such absurdity, it would be a plan exercise of judicial power to repel the same rather than encouraging it. The whole purport of the Indian Stamp Act is to make available certain dues and to collect revenue but it does not mean and imply, overriding the effect over another statute operating on a completely different sphere." 6. Relying on the aforesaid decisions, the learned counsel for the respondents would contend that limitation would commence only from the date of the decree or order when it became enforceable. In other words, the 12 year period commences from the date of the decree or order and not from the date on which the final decree is engrossed on requisite stamp papers. Therefore, the learned counsel for the respondents would contend the order passed by the court below is legally sustainable and it does not call for any interference by this Court. 7. I heard the counsel for both sides and perused the materials placed on record. The only point for consideration in this Civil Revision Petition is whether the dismissal of the Execution Application by the trial court on the ground that it was filed beyond the period of 12 years is legally sustainable or not. In this case, the preliminary decree was passed in the suit on 09.04.1929. Subsequently, a final decree was passed on 18.01.1979. The stamp papers were engrossed on 05.08.1990 on the basis of which the revision petitioners have filed the Execution Application during the year 1998 by contending that it was filed within 12 years from 05.08.1990. Such a contention urged on behalf of the revision petitioners cannot be countenanced. The engrossing of the stamp papers on 05.08.1990 has got nothing to do with the filing of the Execution Application during the year 1998. The Execution Petition has to be filed within 12 years from the date of passing of the final decree namely 18.01.1979. In this case, the revision petitioners have filed the Execution Application only during the year 1998. In other words, the Execution Application was filed after 19 years from the date of decree. The Execution Petition has to be filed within 12 years from the date of passing of the final decree namely 18.01.1979. In this case, the revision petitioners have filed the Execution Application only during the year 1998. In other words, the Execution Application was filed after 19 years from the date of decree. In such event, Article 185 of the Limitation Act will be a bar for the revision petitioners to agitate their right, if any, on the basis of the final decree passed on 18.01.1979. This position has also been reiterated by the Honourable Supreme Court in the decisions relied on by the learned counsel for the respondents, mentioned supra. Therefore, following the orders passed by the Honourable Supreme Court, referred to above, I hold that the trial court is right in dismissing the Execution Application filed by the revision petitioners as barred by limitation and such a reasoned order does not call for any interference by this Court. 8. In the result, the Civil Revision Petition is dismissed. No costs.