GA No.1679 of 2015 APOT No.222 of 2015 EC No.559 of 2013 CS No.71 of 1999 IN THE HIGH COURT AT CALCUTTA Civil Appellate Jurisdiction ORIGINAL SIDE PREMIER THREADS PRIVATE LIMITED Versus SHINEUP FIBRES LIMITD & ORS.BEFORE: The Hon'ble CHIEF JUSTICE MRS.MANJULA CHELLUR AND The Hon'ble JUSTICE JOYMALYA BAGCHI Date: 8th June, 2015 Mr.Anuj Singh, Adv.with Mr.Saunak Sengupta, Adv.Mr.Anuran Samanta, Adv..for the appellant Mr.Reetabrato Mitra, Adv.with Mr.Sudhasatya Banerjee, Adv.Mr.Pradip Sarawagi, Adv..for the respondents The present appeal is directed against the judgment dated 29.04.2015.
The controveRs.that arose before the Learned Single Judge was whether 4.12.2001, is the date of initial decree or 13.12.2001, the date of amendment of the decree, would be taken into consideration for the purpose of computation of period of limitation under Article 136 of the Limitation Act, 1963.
It is not in dispute that there was a suit for recovery of money and the suit became decreed on 4.12.2001.
Since several deficits and defects were found in the decree dated 4.12.2001, amendment of the decree was sought and the same came to be allowed by amending the decree on 13.12.2001.
When an execution petition came to be filed, the judgment debtor took up the contention that the date of amendment of the decree 13.12.2001, cannot be taken into consideration for the computation of period of limitation but the initial date of decree, i.e., 4.12.2001, has to be taken into consideration.
The Learned Judge ultimately agreed with the contention of the decree holder that the date on which the decree became executable and enforceable would be the relevant date so far as computation of period of limitation under Article 136 of the Limitation Act, 1963.
Aggrieved by the same, the appellant is before us.
According to the appellant, under Section 152 of Civil Procedure Court when an amendment occurs to the decree, it is only with regard to clerical mistake etc., therefore, the date of amendment cannot be the relevant date for the purpose of execution of the decree but the initial date of decree alone has to be taken into consideration.
He stresses on the word ‘enforce’ in Article 136 of the Limitation Act and relies upon the following three decisions: West Bengal Essential Commodities Supply Corporation versus Swadesh Agro Farming & Storage PVT.LTD.& Anr.
reported in (1999) 8 SCC315[MANU/SC/0568/1999].He takes us to paragraphs 12 and 14 to contend that in the case of money decree, the decree becomes enforceable immediately on the pronouncement of judgment as thereupon a deemed decree came into existence.
Therefore, according to him, irrespective of subsequent amendment to the decree, the decree which came to be pronounced initially shall be the decree which becomes enforceable immediately after the pronouncement.
He also relies upon Hameed Joharan (d) & ORS.versus Abdul Salam (d) by L.Rs.& ORS.reported in (2001) 7 SCC573[MANU/SC/0444/2001].to contend that period of 12 years for the execution of a decree in the case of money decree has to be viewed differently from the decree granting a mandatory injunction or other order of any Civil Court.
He relies upon Biswapati Dey versus Kennsington Stores & ORS.reported in (1975) ILR1Cal 266 [MANU/WH/0029/1972].to contend that when a decree or order becomes enforceable as appears in Article 136, it sets a new deadline beyond which no execution or decree could be made and intention of legislature is quite clear from the language used therein, that time to make execution application is 12 years from time when decree or order becomes enforceable, irrespective of time to obtain certified copy of the decree which would be deemed to be included within the period of 12 yeaRs.Learned Counsel appearing for the appellant contends that in the light of above three judgments indicating the date on which the decree was pronounced becomes the date of the commencement for execution of the decree, irrespective of subsequent events like actual decree being drawn much later than the judgment pronounced etc.including time spent for obtaining certified copy.
He also relies upon AIR1929Lahore 661 in the case of Padha Madho Parshad versus Ghanaya Lal to contend that the date on which the initial decree was made would be the date for computation of period of limitation within which execution application could be filed.
We have gone through the judgment referred to in detail.
As against this, learned Counsel appearing for the respondent contends that the language of Article 136 subsequent to repeal of 1908 Act has to be looked into specially in the light of existence of Article 182 in 1908 enactment to Limitation Act.
In this regard, he brings to our notice to AIR1977Bombay 168 in the case of Laxmibai Hareshwar Joshi & ORS.versus The state of Maharashtra & Ors.He also refers to judgment of (2004) 12 SCC469 in the case of Akkayanaicker versus A.A.A.Kotchadainaidu & Anr.
to bring to the notice of the Court how exactly amendment to a decree on the date on which amended decree was passed has relevance with regard to computation of period of limitation under Article 136 of the Limitation Act, 1963.
Article 136 reads as under: Description application of For the execution of any decree (other than a decree granting a mandatory injunction) or order of any civil Court.
Period of Limitation Time from which period begins to run Twelve years [When].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 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.
From reading of Article 136 it is very clear when exactly the decree becomes executable irrespective of whether it is a money decree or a decree like injunction, mortgage etc.The issue is when a decree-holder could execute the decree.
Unless the decree or order is enforceable, the decree or order cannot be executed.
The word ‘enforceable’ has some relevance here.
Even if a decree is passed like in the present case on 4.12.2001, it could not be enforced for the reason it suffers from several substantial defects.
It is a decree which was not possible to be enforced.
When exactly the decree becomes enforceable is when actually the decree upon which the decreeholder seeks execution application becomes executable.
Even if a decreeholder files an application for execution of the decree, if it is unexecutable and it cannot be enforced for want of specific details to be mentioned in the decree like the present nature, that is, quantum of amount, several other relevant material facts, the decree dated 4.12.2001 would be unenforceable decree.
We have gone though the contents of decree dated 4.12.2001, and also 13.12.2001.
Reading of decree dated 4.12.2001, clearly indicates at any stretc.of imagination it could not have been executed for want of substantial/relevant facts or material particulaRs.Therefore, the order dated 13.12.2001 speaks why amendment of decree was allowed and the necessity to pass such an amendment is clear from the amended decree dated 13.12.2001.
That apart, prior to 1963 Limitation Act under Article 182 there was a specific clause which indicated that if there was an amended decree what should be the commencement of the period of limitation for the purpose of execution of a decree.
Similarly, there was a provision under Section 48 of the Code of Civil Procedure.
Both the provisions stood repealed and subsequent to 1963 there was no distinction between the amended decree or unamended decree.
The relevant criterion is enforceability of the decree.
As long as the decree was enforceable, one should calculate the period of limitation to file an execution petition from such decree which is enforceable.
In the present case, the starting point of limitation under Article 136 has to be from the date on which the decree, which could be enforceable, was passed.
If the decree dated 4.12.2001, was put to execution, it was unenforceable decree.
Therefore, the decree in the present case, which was enforceable in terms of the language used in Article 136, is dated 13.12.2001, and not dated 4.12.2001.
In the light of the above observations, we uphold the opinion of Learned Single Judge.
Accordingly, the appeal and application are dismissed.
(MANJULA CHELLUR, CJ.) (JOYMALYA BAGCHI, J.) AKGoswami/SN