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Nawal Kishore Patel V/S Most. Indrapari Devi

    Civil Revision No. 1357 of 2001

    Decided On, 24 September 2002

    At, High Court of Patna

    By, THE HONORABLE JUSTICE: NAGENDRA RAI

   



Judgment Text


1. The decree holder is petitioner against the order dated 21.6.2001 passed in Title Execution No. 15 of 1996 by Spl. Execution Munsif, Muzaffarpur holding that the execution case filed by him is barred by limitation.

2. The sole question for consideration in this case is as to whether the decree under execution is barred by limitation in terms of the provisions contained under Article 136 of the Limitation Act, 1963, (hereinafter referred to as the Limitation Act).

3. The factual matrix essential to decide the controversy are as follows. Janki Devi Pramod Kumar and Prem Kumar filed a Title Suit being Title Suit No. 76 of 1964 against the descendants of Jogendra Tiwari for specific performance of contract. Defendant No. 7 only contested the suit. During pendency of the case, Janki Devi died. The suit was decreed on 30th November, 1976 in favour of Pramod Kumar and Prem Kumar. They were directed to deposit Rs. 2,000 (rupees two thousand) by 3.1.1977 to the credit of defendant No. 7 who was directed to deliver the possession of the suit land in the light of the judgment within one month from the date of decree to the plaintiff/decree holder. The defendants 1st Party including defendant No. 7 filed Title Appeal No. 10 of 1977. During pendency of the appeal all the appellants died except Mostt. Indrapari Devi defendant No. 7. The decree holder Prem Kumar died unmarried. Pramod Kumar also died leaving behind his widow Veena Devi as his legal heir. While the appeal was pending Pramod Kumar entered into an agreement for sale of the suit properties in favour of the petitioner and accepted the part of the money and executed ah unregistered Mahadnama but during his life time no sale deed was executed in his favour. After his death, his widow Veena Devi executed a registered sale deed dated 29.7.1980 in respect of the suit property in favour of the petitioner and thus the petitioner stepped into shoes of the decree holder. He filed an application for being imploded as party in the appeal which was rejected. He came to this Court and this Court set aside the order and directed the appellate Court to hear the matt

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er afresh and, thereafter, on 17.12.1987 the petitioner was imploded as a party in the appeal. The said order has attained finality.

4. The aforesaid appeal was dismissed on 9.2.1993. Mostt. Indrapari Devi filed Miscellaneous case for restoration of the appeal and the same was also dismissed on 17.10.1996 after contest. On 17.12.1996, the petitioner filed an execution case to execute the decree passed in Title Suit No. 76 of 1964 and in pursuance of that delivery of possession was given to the petitioner. The judgment debtor Indrapari Devi filed an objection for setting aside the order of delivery of possession which was set aside and the said order was upheld by this Court.

5. The petitioner had filed amendment petition in the execution case on 23.4.1999. The judgment-debtor filed a rejoinder and the Court below by order dated 17.7.1999 was stated above disposed of both the matters i.e., the application filed by the judgment debtor for restoration of the possession toiler and the amendment petition filed by the decree holder. It allowed the application of the judgment debtor with regard to restoration of possession and kept the amendment petition filed by the decree holder in abeyance. The, petitioner came to this Court in Civil Revision No. 1462 of 1999 and this Court by order dated 10.11.1999 directed the Court below to consider the amendment matter. Thereafter, the Court bellow allowed the amendment petition. The judgment debtor came, to this Court in Civil Revision No. 633 of 2000. This Court set aside the order allowing the amendment petition dated 17.1.2000 and remitted the matter to the Court below to decide the amendment matter and observed that the main question is to be decided is as to whether the petitioner can proceed with the execution case or not and that is the question which is to be decided first before allowing the amendment petition in the execution case and the thereafter the Executing Court has considered the question and held that the execution case is barred by limitation. Hence, the present application.

6. The earned Counsel appearing for the petitioner submitted that the Court below has committed jurisdictional error in holding that the execution case was barred by limitation. Elaborating his submission, he submitted that in this case the suit was decreed on 30.11.1976 and the defendants filed Title Appeal No. 10 of 1976 which was admitted that thereafter the same was dismissed for default on 9.2.1993 and as such the enforceable order or decree is of the appellate Court dated 9.2.1993 and as the execution case was filed on 17.12.1996, the same is well within 12 years, the maximum period prescribed for execution of the decree under Article 136 of the Limitation Act.

7. The earned Counsel appearing for the opposite party on the other hand submitted that the appeal was not disposed of on merit, on the other hand, it was dismissed for default and as such the enforceable decree is of the trial Court dated 30.11.1976 whereas admittedly the execution case was filed beyond 12 years from 17.12.1976 and as such the Court below rightly held that the execution case was barred by limitation.

8. Both the parties, have relied upon the decisions of the Apex Court in the support of their respective contentions and the same would be referred to at appropriate places while dealing with the matter.

9. Article 136 of the Limitation Act replaces Articles 182 and 183 of the Old Limitation Act 1908 as well as Section 48 of the Code of Civil Procedure. There is no corresponding provision under the Limitation Act to Article 183 of the Old Limitation Act. Section 48 of the Code of Civil Procedure provided that decree not being a decree granting injunction shall not be executed after expiration of 12 years. The said provision as stated above has been repealed by the Limitation Act and its provision has been incorporated in Article 136 of the Limitation Act. The forerunner of the aforesaid Article of 136 under the Old Limitation Act is Article 182, Article 182 provided the period of execution of a decree or order of any civil Court not provided for by Article 183 or by Section 48 of the Code of Civil Procedure as three years (or where a certified copy of the decree or order has been registered as six years. The time from which the period began to run is the date of the decree or order, or where there has been an appeal the date of final decree or order of the appellate Court or withdrawal of the appeal.

10. Article 136 of the Limitation Act runs as follows.

136. For the execution of any Twelve years [When] the decree or order decree (other than a decree granting becomes enforceable or where the decree a mandatory injunction) order or any subsequent order directs any of any civil Court. 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.
11. Under the aforesaid Article the period of 12 years has been fixed for execution of any decree or order of any civil Court other than a decree granting a mandatory injunction and the period is to be counted from the date the decree or order became enforceable or where the decree or any subsequent order directs any payment of money or the delivery of any property to be made on certain date or at recurring periods, when default in making the payment or delivery in respect of which execution is sought, takes place. It is further provides that the period of limitation will not apply in execution of a decree granting a perpetual injunction.

12. Article 182 of the Old Limitation Act gave rise to numerous litigations. The Law Commission considered this aspect of the matter and then suggested the period of 12 years for execution of the judgment and decree when it became enforceable. It is apt to refer to the report of the Law Commission.

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 sometime within the twelve years immediate 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 of the Code of Civil Procedure, 1908 has been repealed.

13. The following object and reasons have been stated for replacing the Article 182 of the Old Limitation Act.

Existing Article 182 has been a fruitful source of litigation and therefore, the proposed Article 135 (now Article 136) in lieu thereof, provides that the maximum period of limitation for the execution of a decree or order of any civil Court shall be 12 years from the date when the decree or order became enforceable (which is usually the date of the decree or order) or where the decree or subsequent order directs any payment of money or delivery of any property to be made at a certain, date or at recurring periods, from the date of the default in making the payment or delivery in respect of which the applicant seeks to execute the decree or order. There is no reason why a decree should be kept alive for more than 12 years. Section 48 of the Civil Procedure Code, 1908, provides that a decree ceases to be enforceable after 12 years.
14. Thus, Article 136 of the Limitation Act has been enacted with the sole purpose to fix 12 years period for execution of a decree or order when the decree or order becomes enforceable except in a case which is mentioned above which is not relevant for the present case. Under Article 182 as noticed above, the period has to be counted from the date of the decree or order or where there has been appeal from the t date of final decree or order of the appellate Court or withdrawal of the appeal. To remove uncertainty it has been provided that the period is to be counted from the date when the decree or other became enforceable. There is no dispute that the suit terminates by passing a decree of the trial Court and if the same is not challenge m appeal it attains finality in that case the decree of the trial Court is enforceable and period of 12 years is to be counted from the date of passing of the decree. In a case where the decree is challenged In appeal and that results into decree passed by the appellate Court then there is also no difficulty as the decree of the trial Court merges with the judgment and decree of the appellate Court and the appellate decree becomes enforceable and the period of limitation is to be counted from that date under Article 136 of the Limitation Act.

15. However when the appeal is not disposed of on merit but dismissed on the ground of limitation, for default, or non-deposit of printing cost or like other reasons, in such a situation, the question arises as to whether the decree of trial Court is enforceable or by virtue of the matter has been taken up in appeal, it is an order of the appellate Court which will be treated as a decree affirming the decree of the trial Court and will be treated to be enforceable for the purpose of counting the period of limitation under Article 136 of the Limitation Act.

16. The earned Counsel for the opposite party relied upon the following judgment of the Apex Court in support of his submission; W.B. Essential Commodities Supply Corporation v. Swadesh Agro Farming & Storage Pvt. Ltd. & Anr : AIR1999SC3421 , Ratan Singh v. Vijay Singh and Ors. (2001)1. Supreme Court Cases 469, Hameed Joharan (Dead) and Ors v. Abdul Salam (dead) by LRS. and Ors. : AIR2001SC3404 .

17. So far as the cases of W.B. Essential Commodities Supply Corporation (supra) is concerned, in that case the question for consideration was as to when the decree becomes enforceable, that is from the date of decree or when the decree is actually drawn up and signed dealing with the said matter, the Apex Court held that the period of 12 years begins to run from the date of the decree and not from the date of signing and drowning up the decree. The said decision has no application to the points involved in this case.

18. Similarly in the case of Hameed Joharan (supra) the question for consideration was whether the period of 12 years under Article 136 will being to run from the date of the decree when the right stands crystallized or till the decree is formal copied out on stamp paper. The Apex Court held that the time will run from that date of decree and not from the date when the decree is engrossed on stamp paper. The said case has also no application in the present case.

19. So far as Ratan Singh's case is concerned, relying upon the same, the trial Court has held that the execution case is barred by limitation, it appears from the facts of that case that the suit was decreed in favour of the decree holder on 14.12.1970. The judgment-debtor filed an appeal which was dismissed an 1.8.1973. The execution case was filed on 24.3.1988 which was beyond the date of limitation from the date fixed by the Limitation Act. The judgment debtor preferred in the meantime second appeal in the High Court which was dismissed on the ground of limitation on 31.3.1976. The Execution Court treated the date of order of the High Court dated 31.3.1976 as the date for the purpose of period of limitation and accordingly held that the execution case was not barred by limitation. In revision, the District Court held that it was barred by limitation as the period of limitation was to be counted from the order of the First Appellate Court dated 1.8.1973. The Apex Court held that as the dismissal of the appeal by the High Court on the ground of limitation was not a decree and accordingly, the decree of the First Appeliate Court remained unaffected, the period of 12 years is to be counted from 1.8.1973 and as the execution case was filed long after expiry of the aforesaid date, the same was barred by limitation. Their lordships took the view that rejection of the limitation application for condonation of delay and consequent upon dismissal of the appeal does not amount to decree and the subsequent dismissal of appeal on the ground of limitation is only an incidental order and the same will not supercede the decree of the first appellate Court. The said case has also no application in the present case. As stated above, in this case, the appeal was admitted and thereafter it was dismissed for default whereas in the case as Ratan Singh (supra) the appeal was not admitted as it was barred by limitation and in that situation it was held that dismissal of appeal on the ground of limitation was not a decree. Thus, on facts the said case has also no application. This apart, the judgment in the case of Ratan Singh (supra) has been rendered by a bench of two Hon'ble Judges of the Apex Court whereas the bench of four Hon'ble Judges of the Apex Court in the case of Sheodan Singh v. Daryao Kunwar, reported in : [1966]3SCR300 while dealing with the question of res judicata held that when the appeal filed against the trial Court judgment is dismissed on preliminary ground, like limitation or default in printing cost with the result that the trial Court's, decision is confirmed, the decision of the appeal Court will be res judicata and the appeal Court must be deemed to have heard and finally decided the matter. In such a case, the decision of the appeal Court is to confirm the decision of the trial Court given on merits, and if that is so, the decision of the appeal Court will be res judicata what ever may be reasons for dismissal. Though the judgment was rendered in different contest but it is a decision on the point that once the appeal is dismissed for any reason including dismissal of the appeal on the ground of limitation it is the order of the appellate Court, that is a final one and becomes enforceable as the judgment of the trial Court merges with the same

20. It is well settled that there should be liberal and broad based construction of the provision of the Limitation Act. There should be no rigid and narrow interpretation. However in interpreting the statutes dealing with the limitation, the consideration of hardships are out of place. However, the Court cannot ignore the fact that when the judgment and decree is rendered by the trial Court and the matter is sub-judice between the parties before the appellate Court, the decree holders generally do not pursue thorny path of execution for the reason that if the final result goes against them, they will be put into disadvantageous position. Generally they await the result of-the appeal which is filed by the loosing party. Life of law is reason and that comes from experience. The aforesaid aspect of the matter cannot be ignored while interpreting provision of Article 136 of the Limitation Act. It the narrow interpretation to the effect that if the appeal is dismissed on technical ground is given and the decree or order enforceable is not treated to that of the appellate Court against the judgment debtor, then that will be-boon to the dishonest judgment debtor who will file the, appeal and allow it to remain pending for several years and get it dismissed for default or on the ground of limitation after expiry of the period of limitation for execution of decree, the result would be that the successful party would be looser. It is known fact that disposal of the appeal including disposal of interlocutory matters like, Court fee limitation, take time and if narrow interpretation would be given it will be a boon for the judgment debtors.

21. This Court in the case of Raghu Prasad Singh and Ors. v. Jadunandan Prasad Singh and Ors. has considered the question as to what is the meaning of final decree or order within the meaning of Article 182(2) of the Old Limitation Act which provided that the period of limitation will start in case of filing of appeal from the date of judgment and decree of the appellate Court. This Court held "where there has been an appeal and where that appeal has been properly presented and is within time any order of the High Court dismissing the appeal or putting an end to the appeal in any way is either a decree or order within the meaning of the present Article 182(2), although it may be the in many cases such an order is not an order of which execution could be sought."

22. Thus, in a case where the appeal is dismissed on preliminary grounds, such as dismissed for default or other grounds, then that amounts to confirmation of the judgment and decree of the trial Court and final decision will be that of the appellate Court and that will be treated to be enforceable decree or order and the period of limitation for the purpose of Article 136 of the Limitation Act is to be counted from the date of the said order. It may be that in some cases the order will not be such of which execution could be sought. In that situation the execution will be of the appellate decree or order read with decree or order of the lower Court. In this case, the appeal after admission was dismissed for default on 9.2.1993 and the execution case has been filed on 17.12.1996 and as such it was within the time and the Court below has committed jurisdictional error in holding that the execution case was barred by limitation.

23. Accordingly, the impugned order is set aside and the matter is remitted to the Court below to proceed with the execution case in accordance with law.

24. in the result, the civil revision application is allowed
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