Judgment:
ORDER
S.S. Subramani, J.
1. The legal heir of the deceased first defendant is the revision petitioner predecessor of the respondents. The suit filed by the decree-holder was one for partition. In execution of the decree, it is contended by the judgment-debtors that the execution is barred by limitation, because of expiry of 12 years from the date of the decree. By the impugned order, the lower court rejected the contention and allowed the execution to be proceeded with. The present revision is filed by the legal heirs of the first defendant, challenging the said finding.
2. The material facts are as follows:
The preliminary decree for partition was passed on 8.9.1969. Final decree was passed on 20.11.1970 as per I.A. No. 82 of 1970. Being a partition suit, the parties are bound to furnish stamps for drafting the decree. On 28.2.1972, the District Court, Nagapattinam issued notice to the parties to furnish stamp papers, granting time till 17.3.1992. The decree-holder did not furnish any stamp and no decree was drafted. On 17.1.1977, the original decree-holder died. On 26.7.1983, application was filed by legal representatives of the decree-holder to implead themselves as additional plaintiffs and, on 23.2.1984, the same was ordered. The legal representatives were impleaded on 8.3.1994. After incorporating the names of the legal heirs of the plaintiff, an execution application was presented before the District Court on 21.5.1984. In the meanwhile, there was a civil revision petition before this Court, namely, C.R.P. No. 2374 of 1984 against the order of impleadment. The same was dismissed on 8.10.1984. On 11.12.1984, an order was passed in the execution petition holding that the execution petition is barred by limitation since it was filed beyond 12 years. A revision was filed against the said order as C.R.P. No. 2000 of 1985. On 10.3.1989, this Court set aside the order of the executing court and directed that the question of limitation should be considered afresh. By the impugned order dated 13.7.1989 the lower court held that the execution petition is not barred by limitation.
3. Even though the order of remand directs that the questions of limitation as well as adverse possession should be considered. The only point that was urged before me was on the question of limitation.
4. It is not disputed that Article 136 of the Limitation Act applies. It says, 'for execution of a decree other than a decree for mandatory injunction or order of a civil court, 12 years where the order or decree becomes enforceable or where the decree subsequent order directs.... The argument that was put forward before me is that the decree becomes enforceable from the date of judgment, and if the period is calculated from that date, the execution petition is barred by time. On the contrary, the learned Counsel for the decree-holder submit that the decree becomes enforceable in a partition suit only when a decree is engrossed on the stamp papers, since it is an instrument under the Stamp Act. Unless it is properly stamped, it cannot be an instrument which could be enforced, and hence the period of time will begin only after the decree was engrossed. If the period is calculated thereafter, according to the learned Counsel for the decree-holder, the execution petition is within time. Various Authorities have been cited by learned Counsel on both sides as to when the decree becomes enforceable.
5. Before taking into consideration the various decisions, it is better to consider the scope of Order 21, Rule 11 of the Code of Civil Procedure. Order 21, Rule 11(1), C.P.C. speaks about the oral application for execution and Sub-rule (2) provides for a written application. In the case of written application, it is directed that the execution petition shall contain the particulars in tabular form as noted therein. Sub-rule (3) is an important provision which says that the court to which the application is made under Sub-rule (2) may require the applicant to produce a certified copy of the decree. (Italics supplied). A reading of Rule 11 (1) and (2) makes it clear that even without a certified copy of a decree an execution petition could be filed. Sub-rule (1) of Rule 11 contemplates for an written application immediately after the passing of the decree. It cannot be doubted that in an oral application, the decree cannot be produced. As regards the particulars called for under Sub-rule (2) of Rule 11 also, the law does not insist on the production of a certified copy of the decree along with the execution petition. So, only if the Court directs the production of a decree, the decree has to be filed. It, therefore, follows that merely because a copy of the decree could not be filed, it cannot be said that the Execution petition is not in accordance with law. In taking the above view, I am supported by the decision reported in Govind Prasad and Anr. v. Pawankumar . In that case, their Lordships were considering the scope of Article 182(5) of the old Limitation Act. At page 100 their Lordships held as follows:.It is well-settled that the words 'in accordance with law', mean in accordance with the law relating to the execution of the decrees. In support of their argument that the application is one not in accordance with law, reliance is placed by the appellants on 0.21, Rules 14 and 17, C.P.C.
[Italics supplied]
The bone of contention in that case was, whether the application should produce certified extracts from the Collector's register in certain cases. Their Lordships held that it was not necessary, and that compliance of Order 21, Rule 11(2), C.P.C. was sufficient compliance, and that the same is in accordance with law.
6. In Siri Ram and Ors. v. Jagan Nath and Ors. , it was held thus:
Order 21, Rule 11, does not seem to make it a condition precedent for the application for execution to be made that there should be in existence a decree-sheet because otherwise no oral application for execution could be made immediately after the passing of the decree though Sub-rule (1) applies only to decrees for money. Hence an execution application can be made even though no decree-sheet has been drawn up and no stamp duty has been paid: the impediment because of Section 35 of the Stamp Act is that such a decree cannot be executed.
Little further down, their Lordships held as follows:
The terminus a quo according to Article 82(1) is the date of decree which under 0.20, Rule 7 is the date of the judgment.
Even in the case of a partition decree which has not been formally drawn up for nonpayment of the requisite stamp duty an application made within three years of the date of passing of the decree, which would be the date of the judgment, would stop the running of time as against the judgment-debtor.
7. In Rajeshwar Rai v. Shankar Rai : AIR1962Pat398 , it has been held as follows:
Reading Sections 2(2), 2 (9), 33 and 0.20, Rules 1, 6 and 7 together it must be held that the 'decree 'as defined in Section 2(2) comes into existence as soon as the judgment is pronounced. It does not necessarily mean the formal decree which is prepared in accordance with Section 33 and Order 20, Rule 6. The definition of the words 'decree-holder' in Section 2(3) makes it further clear that the decree-holder means a person in whose favour a decree has been passed as soon as the judgment has been pronounced, and not necessarily a person in whose favour a decree has been formally prepared, as required by Section 33. Apparently, although an appeal cannot be filed until the formal decree has been drawn up and prepared, an execution case can be filed for the execution of the decree which has really come into existence by the pronouncement of the judgment, but it is to be formally drawn up and written subsequently. Hence an execution filed shortly after the judgment was pronounced before the formal decree was prepared as required by Section 33 and Order 20, Rule 6 is legal and valid.
8. In Sri Chandra Mouli Dava v. Kumar Binoya Nand Singh A.I.R. 1976 Pat. 208, in paragraph 8 of the judgment, (at page 210), it is stated thus:
Next question that arises for consideration is as to whether the decree could be executed without the signing and sealing of the decree in a formal way. The answer to this question is given under Rule 11 of Order 21 of the Code of Civil Procedure. According to Sub-rule (1) of Rule 11, where the decree is for payment of money, on an oral prayer made by the decree-holder, the court may order immediate execution of the decree by the arrest of the judgment debtor prior to the preparation of a warrant if he is within the precincts of the court. This sub-rule leads to the inference that action can be taken prior to the preparation of the decree under Order 20, Rule 6 of the Code of Civil Procedure. Again Sub-rule (2) of the Rule provides that every application for execution of a decree shall be in writing signed and verified by the applicant or by some other person proved to the satisfaction of the court to be acquainted with the facts of the case and shall contain in a tabular form specified particulars. It is not necessary under this sub-rule to file certified copy of the decree. The court may, without the certified copy of the decree, proceed with execution. It is only under Sub-rule (3) that the court may require the applicant to produce a certified copy of the decree....
In Arunachala Reddiar v. Muthusadasiva Mudaliar : AIR1950Mad261 , this question again came up for consideration. As per Rule 142 of the Civil Rules of Practice (Madras), for entertaining an execution petition, copy of the decree was compulsory. When an execution petition was dismissed on the ground that the decree copy was notified, a question was raised whether the dismissal was in accordance with law. In an earlier decision of this Court reported in Kamalammal v. Rajararna Naicker : AIR1940Mad631 , this Court has ruled that production of certified copy of decree was compulsory. This Court doubted the correctness, and on reference, a Bench of this Court held that Order 21, Rule 11, Sub-rules (2) and (3), C.P.C. alone will apply in regard to execution petitions, and the earlier decision of this Court reported in : AIR1940Mad631 , was overruled. Their Lordships held that the requirement as to the production of certified copy of decree was Directory in nature and not mandatory.
9. In Farukh v. District Judge, Lucknow and Ors. : AIR1984All393 , it is held thus:.It is not obligatory to file a copy of the decree, Order 22, Rule 11(3) lays down that the execution court may require the applicant to produce a certified copy of the decree. This implies that it is not obligatory on the decree-holder to produce a certified copy of the decree sought to be executed until he or she is so required.
10. In Damodar Pandurang Thakore v. Trustees of the Port of Bombay 1978 Mah.L.J. 425, it was held that Order 21, Rule 11 or any other rule thereof does not contemplate drawing up of the decree as a condition precedent for initiation of the execution proceedings.'
11. So, from the above decisions, it is clear that the decree-holder cannot contend that only on the production of the decree, the execution can be proceeded with. If production of the decree is not a condition precedent for initiating the proceeding, the only requirement that has to be satisfied is, whether the decree is enforceable on the date of judgment.
12. Mainly reliance was placed by the learned Counsel for the decree-holder in the decision reported in Udayan Chinubhai v. C. Bali A.I.R. 1977 S.C. 2319. The question that came up for consideration in that case was, what is the time requisite for obtaining copy of the decree, under Section 12(2) of the Limitation Act. Discussing the point, their Lordships (in paragraph 36 of the said judgment at page 2327) has held thus:
When a judgment is delivered in the presence of the parties clearly announcing certain steps to be taken by the plaintiff before the decree can be prepared, the matter stands on an entirely different footing. In the present case without deposit of the deficit court-fees by the plaintiff, 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.
In this connection, it is better to bear in mind the provisions of Order 41, Rule 1, C.P.C. also. It reads.
Every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the court or to such officer as it appoints in this behalf. The memorandum shall be accompanied by a copy of the decree appealed from and (unless the appellate court dispenses therewith) of the judgment on which it is founded:...
[Italics supplied]
Section 96 of the Code of Civil Procedure also says that an Appeal shall lie from every decree passed by the court. So, taking these provisions together, a copy of the decree has to accompany the memorandum of appeal. In execution application, that is not the case. The wordings of Section 12(2) and Article 136 of the Limitation Act are entirely different. So, the reliance placed by the respondent's counsel on the above passage is not helpful to him. In this connection, it is worthwhile to extract what is observed in paragraph 35 of the said judgment, which reads thus:.A judgment which is unconditioned by the requirement of any action by a party, stands 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 the decree prior to his application for a copy, that is to say, if there is no impediment in law to prepare a 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, can exclude that time taken by the court for preparing the decree as time requisite for obtaining 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 directions 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 those circumstances as running against the opponent.
The question when the decree becomes enforceable was not decided Section 12 of Limitation Act has application in execution, matters. Again, para.32 of the judgment speaks otherwise. To get exclusion of time under Section 12, it was held that an application has to be filed before the decree is prepared. If no application is filed, after the judgment is pronounced and before the decree is signed, that period is not excluded for computing the period of limitation. Hence, even for a non-existent decree, an application for copy has to be filed.
13. Several other decisions were also cited. One of the earliest decisions cited in Jotindra Mohan Tngore v. Bejoy Chand Mahatap I.L.R. Cal. 483. A Bench of the Calcutta High Court held in that case that in a partition suit, until the final decree is drafted, the suit is deemed pending. The facts of that case are, the commissioner's report suggesting the mode of partition was filed and the court accepted the same by an order. No final decree was drawn up since the parties did not produce stamp paper. In the meanwhile a person who was interested in the property wanted to get himself impleaded in the suit. The question that came up for consideration was, whether he could be impleaded when a final decree has been passed. After taking into consideration the rival submissions, their Lordships held that till a final decree is drawn-up in accordance with law, i.e., till it was engrossed on stamp paper as required by the Stamp Act and until the Judge signs the decree so engrossed, it cannot be said that the suit is terminated. Taking that view, their Lordships said that the impleading was legal. The question whether the decree was enforceable and whether the time taken for drafting the decree on the stamp paper was considered, was the matter in issue. The same was followed in various other decisions also on which reliance is placed.
14. In Rameshwar Singh v. Homeswar Singh A.I.R. 1921 P.C. 31, it was held that in order to make the provisions of the Limitation Act apply, the decree sought to be enforced must have been in such a form as to render it capable, in the circumstances, of being enforced. The question whether only on production of stamp duty and engrossing the same will entitle the decree-holder to initiate execution was not considered in that case.
15. In Lakshmi Narain Marwari v. Balmukund Marwari, 47 M.L.J. 441, cited by the learned Counsel for the respondent No. 2, the question that came up for consideration was, whether a suit. Where a preliminary decree was passed and when the plaintiff has not taken steps for the passing of final decree, can be dismissed. Their Lordships held that once a preliminary decree is passed, the suit cannot be dismissed. It was held:
After a decree has once been made in a suit, the suit cannot be dismissed unless the decree is reversed on appeal. The parties have, on the making of the decree, acquired rights or incurred liabilities which are fixed, unless or until the decree is varied or set aside. After a decree any party can apply to have it enforced.
It only says that after preliminary decree, the parties are at liberty to apply for final decree at any time, and the suit must be deemed pending. I do not think we can derive any support from this decision to the contention raised in this case.
16. In Pandivi Satyanandam and Ors. v. Paramkusam Namayya and Anr. : AIR1938Mad307 , it was held as follows:
Where a decree in a suit for partition of joint family property directs payment of specific sums to individual members of the joint family, and the payments are to be made out of the joint family funds or out of the proceeds of the sale of the joint family property, the effect of the provisions is that the properties which were joint properties are divided among the members of the joint family and the decree amounts to a final order of a civil court for effecting a partition and falls strictly within the terms of Section 2(15) of the Stamp Act, and cannot be acted upon i.e. executed by any civil court unless it is engrossed on a proper non judicial stamp paper.
It was further held in that decision at page 308 as follows:
'Where a decree in a partition suit which is in substance a final order effecting partition is not engrossed on a proper non-judicial stamp, there is no valid decree in existence and the court has no jurisdiction to sell any property in the execution proceedings. If such a sale takes place, the whole of the sale proceedings are a mere nullity and the sale passes no title to the auction purchaser.'
In that case also, the question of Order 21, Rule 11, C.P.C. was not taken into consideration. The main question that centered round was, whether the decree is an instrument under the Stamp Act. Their Lordships said that, being a decree for money chargeable on immovable property, the decree cannot be acted upon unless it is duly stamped. So, that decision also has no application to the facts of this case. Question of limitation was not in issue, nor was it considered.
17. In Ittoli Moidin Koya's son Koyatti and Ors. v. Imbichi Koya and Ors. : AIR1946Mad534 , the question that came up for consideration was, whether a purchaser from a co-owner will obtain title to the property pursuant to a final decree in a partition suit which is not engrossed on a stamp paper. The question was, therefore, regarding title to the property and not regarding execution. The learned Judge held in that case that the court must insist upon the parties to furnish stamp papers, to draft the decree, and the final decree being an instrument under the Stamp Act, cannot be acted upon unless it is stamped.
18. The learned Counsel also relied on a Full Bench decision of this Court in Board of Revenue, Madras v. Moideen Rowther (1955) 2 M.L.J. 635: A.I.R. 1956 Mad. 207 : I.L.R.1956 Mad. 132:1955 M.W.N. 980. The question that came up for consideration was, regarding the legality of the provisions of Rule 12(3) of Chapter 3 of Part II, Madras Civil Rules of Practice. The said Rule, which was then in vogue, allowed the court to draft a final decree for partition even when the parties did not produce the stamp paper. The Rule provided that in case if the parties do not furnish the stamp paper as required, the final decree can be sent for impounding. The question that came up for consideration was, whether that provision which enables the court to send the document for impounding is valid In that case, it was held thus:
A final decree for partition passed by a civil court is an instrument of partition as defined in Clause (15) of Section 2 of the Stamp Act. It follows that such a decree can only be engrossed on stamp papers of sufficient value.
The decisions reported in Jotindra Mohan Tagore v. Bejoy Chand Mahatap, I.L.R. Cal. 483 and Pandiyi Satyanandam v. Parakusam Namayya : AIR1938Mad307 , were relied on. After considering the provisions of the Civil Procedure Code regarding the passing of final decree and the relevant provision of the Stamp Act, their Lordships said that the Rule which enables the court to send that document for impounding is not valid. Their Lordships held thus:.In so far as Sub-rule (2) directs the decree in a partition suit to be engrossed on non-judicial stamp paper, no exception can be taken, not because it relates to procedure, but because it states the effect of the provisions of the Stamp Act. If the parties do not furnish the court with stamp papers of sufficient value. The court can certainly refuse to draw up the final decree and sign it.
The parties run the risk of the decree not being signed and issued. For instance, a party may not be able to enforce any of the terms of the decree by execution because a valid decree is essential for execution.
The question that is now raised in this Revision was not decided, and the only point that they finally decided in that case is seen from paragraph 5, i.e., the last paragraph of that judgment. Their Lordship said that on the failure of the parties to furnish the requisite stamps, the Court had no power to draw up the decree for partition and the court has no power to impound under Section 33 of the Stamp Act, the decree so drawn up.
19. In Amirthammal and Ors. v. M.K. Mani Iyer : (1982)1MLJ326 , the question that came up for consideration was, whether in a suit for specific performance, final decree can be passed. The learned Judge said that when the decree is not per se executable, then a final decree will have to be passed, and, for the passing of final decree, any number of applications can be filed, and there is no time-limit for the filing of such application. It was also held that an application for the passing of a final decree is not an application for execution, and the question of execution will arise only if the decree is finally executable. From that analogy, the learned Counsel wants me to infer that after the death of the original decree-holder and when an application is moved by them for drafting the final decree, the said application must be deemed to be one for the passing of a final decree.
20. The said contention cannot be accepted for more reasons than one. A decree is defined under the Civil Procedure Code as 'the formal expression of an adjudication which, so far as regards the court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. An application for engrossing a final decree is only a ministerial act. When the court exercises its power under Order 20, Rule 18, C.P.C., a final decree is passed. There is adjudication of rights, and thereafter, what remains is only the engrossing of such an order or adjudication in a stamp paper, since it is an instrument. So, after the court passes an order affecting the partition, basing on the Commissioner's Report, there is an adjudication of the rights and the properties are allotted. The parties are entitled to separate possession as on that date. Again, Order 20, Rule 7, C.P.C. says, 'The decree shall bear the day on which the judgment was pronounced, and, when the Judge has satisfied himself that the degree has been drawn up in accordance with the judgment, he shall sign the decree.' From a reading of these provisions it is clear that the engrossing of a decree already passed is only a ministerial act and not an adjudication. So, under no stretch of imagination, can it be said that the said application must be treated as a decree. The last decision that was relied on by the learned Counsel is the one reported in Bholanath Karmakar and Ors. v. Madanmohan Karmakar and Ors. : (1988)1CALLT1(HC) . The said decision, of course, supports the learned Counsel for the respondent No. 2. It was held in that case that the decree for partition does not become enforceable unless the same is engrossed on stamp paper and, therefore, the period of execution does not begin to run under Article 136 of the Limitation Act unless the decrees so drawn up. For various reasons than one, the said decision cannot be supported. The wording of the Limitation Act which has to be interpreted strictly, does not provide for such an interpretation. It will amount to enlarging the period of time than what is provided under the Limitation Act. Their Lordships followed the decision in Udayan Chinubhai v. C. Bali A.I.R. 1977 S.C. 2319, for the said position, I have already said that the decision has no relevance insofar as the execution of the decree is concerned, and their Lordships also have not taken into consideration paragraphs 32 and 35 of the said decision, Their Lordships in that case have said:.But where, as in a decree for partition, no legally operative decree can come into existence at all unless the requisite stamps are furnished by the parties and the decree is engrossed on such stamp papers....
For getting title to the property, the said observation will be correct. But, under Order 21, C.P.C. When decree is not necessary for initiating proceeding, as in Order 41, Rule 1, C.P.C. the said observations by the learned Judges cannot be applied to this case.
21. There are other decisions of this Court as well as other High Courts which have taken different view. Before considering those decisions it is better to see what were the provisions under the Old Limitation Act and the reasons for the Amendment. Article 182 of the Limitation Act provided 3 years for filing execution application from the date of decree or order, and, there are five clauses under that article. The 5th Clause provided that the time begins to run from the date when the final order is passed on the application made, in accordance with law to the proper court for execution, or to take some step-in-aid of execution of the decree or order. It was thought that the provision of Article 182 was a contentious article which gave room for so many litigations. The same was sought to be abrogated by amending the same, and the present provision, namely, Article 136 of the Limitation Act was incorporated. Before going to the case-law cited by the learned Counsel for the petitioner, we have to consider how to interpret the Law of Limitation. It is held in the decision reported in Corporation Limited v. Janmohomed Abdul Rahim , as follows:
Limitation Act ought to receive such a construction as the language in its plain meaning imports. The rule must be enforced even at the risk of hardship to a particular party. The Judge cannot, on equitable grounds, enlarge the time allowed by the law, postpone its operation, or introduce exceptions not recognised by it.
22. Rustomji on Limitation Seventh Edition has stated 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. 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. In confusing provisions of limitation, equitable considerations are immaterial and irrelevant and in applying them effect must be given to the strict grammatical meaning of the words used by them. At any rate, the statute must be construed strictly.
23. In Udayan Chinubhai v. C. Bali A.I.R. 1977 S.C. 2319, their Lordships have held as follows:
In interpreting the provisions of a statute the courts have to give effect to the actual words used whether couched in the positive or in the negative. It is not permissible to alter the cohesive underlying thought process of the legislature by reading in positive sense what has been set out in negative terms. The courts will try to discover the real intent by keeping the diction of the statute intact.
In the Statement of Objects and Reasons to the 1963 Bill, it is stated thus:
Existing Article 182 has been a fruitful source of litigation and therefore the proposed Article 135 (now 136) in lieu thereof provides that maximum period of limitation for the execution of a decree or order of any civil court shall be twelve years from the date when the decree or order become enforceable (which is usually the date of the decree order) 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, from the date of the default in making the payment or delivery in respect of which the applicant seeks to execute the degree or order. There is no reason why a degree should be kept alive for more than 12 years. In England also the time fixed for enforcing a judgment is 12 years. Where however the judgment debtor has by fraud or force prevented the execution of a decree within the prescribed period, suitable provisions for extending the period are being made in Clause 16 of the Bill on the lines of Section 48(2) of the Code of Civil Procedure, 1908. Existing Article 183 which makes special provision for decrees and orders of courts established by Royal Charter, is no longer necessary. It is also provided that the period of 12 years will not apply to decrees granting perpetual injunctions.
24. Rustomji on Limitation Seventh Edition at page 1364, commenting, on Article 136, states thus:
Article 136 contemplates a decree which is capable of being executed at the date of the decree. The test to be applied for determining whether the decree was one capable of immediate execution is whether the performance of the condition was entirely dependent on the will of the decree-holder. The Supreme Court in Yeshwant Deorao v. Walchand Ramchand : [1950]1SCR852 , considered whether the condition constituted an extraneous event or was one entirely in the power of the decree-holder. In the latter case it would be a decree capable of execution from the very date when it was passed so as to attract Article 136. A decree can be said to be non-enforceable only when it is not capable execution on the date when it was passed by reason of the very terms of the decree. Where the execution of a decree as a whole is dependent on the happening of a contingency, limitation will not begin to run until the contingency happens. Anything extraneous cannot render the decree not capable of execution....
It is clear from the Objects and Reasons, and also the decided case-law that the statute only wanted 12 years from the date of decree for enforcing the decree. No extension of time was though of under the Statute.
25. In Paladugu Veera Ramachandra Rao v. Paladugu Parasuramayya and Anr. A.I.R. 1940 Mad. 127, a Full Bench of this Court considered the question of limitation in respect of an amended decree. The amendment of the decree was under Section 152 of the Code of Civil Procedure. The question that came up for consideration was, whether the decree-holder is entitled to get 12 years from the date of amendment or only 12 years from the date of decree. Their Lordships held as follows:
Under Clause 4 of Article 182, Limitation Act, the period of Limitation where the decree has been amended is three years from the date of the amendment, but the article is expressly limited to applications for execution not provided for by Article 183 or by Section 48, C.P.C. Inasmuch as Article 182 clearly leaves the provisions of Section 48 untouched there can be no execution of a decree governed by Section 48 when 12 years have passed from the date of the decree, amendment or no amendment. There is no period of limitation for an amendment of a decree to correct an accidental slip or omission under Section 152, C.P.C. But because the Code gives the court power to correct slips or omissions at any time it does not mean that the law of limitation is affected. A correction made in a time-barred decree leaves the decree still time-barred.
On the same reasoning, the decision reported in, Board of Revenue, Madras v. Moideen Rowther (1955)2 M.L.J. 635 : A.I.R. 1956 Mad. 207 : I.L.R. 1956 Mad. 132 : 1955 M.W.N. 980, can be distinguished. It was held in the Full Bench case that it is open to the parties to approach the court which passed the decree and request the court to pass a final decree after supplying the stamp papers at any time. Because, as pointed out in Jotindra Mohan Tagore v. Bejoy Chand Mahatap, I.L.R. Cal. 483, the suit must be deemed pending. There is no period of limitation for supplying the necessary stamp papers. But that will not take away the right of the judgment-debtor to plead the question of limitation if the decree is enforceable on the date of judgment. Since no period of limitation is provided for the production of stamp papers, it does not follow that the decree is not enforceable on the date of judgment.
26. The following decisions were cited by the learned Counsel for the revision petitioner:
In Yeshwant Deorao v. Walchand Ramchand : [1950]1SCR852 , their Lordships were considering the scope of Section 48(2) of the Civil Procedure Code, now repealed, in view of the Amendment to the Limitation Act. Section 48 of the Civil Procedure Code also provided a period of 12 years from the date of decree. The question that came up for consideration before their Lordships was, where a decree-holder was directed to pay deficit court-fee before the execution of the decree, whether time will run before payment. It was held by their Lordships thus:
Where a decree provides that the decree-holder should pay the deficit court-fee on the decretal amount before it execution the decree is not a conditional one in the sense that some extraneous event is to happen on the fulfilment of which alone it can be executed. The payment of court-fees on the amount found due is entirely in the power of the decree-holder and there is nothing to prevent him from paying it then and there. Thus it is a decree capable of execution from the very date it is passed.
A Bench of this Court has held in Umayal Achi v. Ramanathan Chettiar, 92 L.W. 599, as follows:
Article 136 of the Limitation Act, 1963, prescribes the date as and from which the decree should be executed. It says that the period of 12 years begins to run from the date when the decree becomes enforceable. A decree of a civil court which adjudicates rights of parties becomes enforceable on the date when it pronounced its judgment. There cannot be a postponement of the date of its enforceability. It is in this respect that the present Article differs from the old Article 183 which while referring to decrees of High Courts provided that from which the period begins to run to enforce the judgment is the time when a present right to enforce the judgment accrues. Under the old Act certain factors, apart from the date of enforceability of the judgment could also be enquired into to find out whether a right has accrued. Accrual of right in jurisprudence depends upon a bundle of facts. It was in that context and conjunction that the earlier Act was the bedrock of unnecessary litigation. The Parliament, having thus made an express provision that time would begin to run for executing any decree from the date when it becomes enforceable, it means that an execution petition has to be filed within twelve years from the date of the pronouncement of the judgment. Obviously, the execution petition in question has been filed years after, namely, 40 years thereafter. It is therefore, clearly barred by limitation.'
27. In Inturi China Venkatappa v. Inturi Peda Venkatappa and Ors. A.I.R. 1943 Mad. 650, it was held thus:
The date of the decree in a partition suit for the purpose of Article 182 is the date on which the judgment was pronounced and limitation runs from that date although the party in whose favour the decree has been passed has not furnished the stamp paper fro the purpose of the drawing up of the decree. It is not correct to say that in a partition suit until the final decree has been drawn up on non-judicial stamp paper of the required value time does not begin to run.
28. In Venkataraya Goundan v. Halappa Goundan and Ors. A.I.R. 1946 Mad. 348 : (1946) 1 M.L.J. 169, a Bench of this Court was construing the provisions of Section 48 of the Civil Procedure Code as it then stood. That case was also regarding a partition decree. Their Lordships said that the time for drafting the decree cannot be excluded, and that time runs from the date of judgment. Their Lordships followed the decision reported in Inturi China Venkatappa v. Inturi Peda Venkatappa A.I.R. 1943 Mad. 650 and held thus:.In the present case, unlike the above two cases the adjudication became ripe for execution the date of judgment, in that the respective rights of the parties had been adjudicated and decided on. It was only the formalities to be observed in drafting the decree that had to be yet carried out. Chinna Venkatappa v. Pedda Venkatappa A.I.R. 1943 Mad. 650, is a decision of a Bench of this Court wherein a contention similar to that raised by the appellants in the present case was raised. That contention was rejected by the learned Judges as under Order 20, Rule 7, Civil P.C., the decree must bear the same date as the judgment. In the present case also the date of the decree has to be construed as 23rd December, 1925 the date of the judgment. We are, therefore, of opinion that the date of the decree in the present case is 23rd December, 1925 and that, therefore, the petition for execution is clearly not within time....
29. In Laxman Minaji Chauggule v. Appayya Chauggule : AIR1961Kant172 also, it was held that a partition, decree is like any other decree, and the time for execution of 12 years shall be from the date of judgment, which shall be deemed to be the date of decree, and the same is capable of execution from that date. The time taken for drafting the decree on a non-judicial stamp paper cannot be taken into consideration for the purpose of education. It was held thus:
In a case of a partition decree the date of commencement of limitation prescribed by Article 182 for an application for its execution is the date on which the judgment is pronounced directing the final decree to be drawn up and not the date of the engrossment of the decree on non-judicial stamped paper. The decree that is made is capable of execution from the very date on which it is made since the paper on which it had to be engrossed immediately after it was made and there was nothing to prevent him from so doing.
30. In Yella Appa Rao v. Nagam Verraju A.I.R. 1962 A.P. 385, it has been held as follows:
Limitation for execution of final decree commences on the date of the final decree and the non-payment of court-fees does not arrest the running of limitation. In the case of final decree in partition suits or partnership actions, there is no obstacle in the way of the decree-holder proceeding with the execution of the decree after supplying non-judicial stamps for drafting the decrees or after paying the court-fee as required by Section 11 of the Court-Fees Act. They are not cases where certain conditions have to be performed before execution could be levied and it is only Article 182 that applies.....
31. In Madurai Lakshminarasimham v. Madurai Suryanarayanamma and Ors. A.I.R. 1948 Mad. 246 also, the same point was upheld by this Court.
32. In Amar Nath v. Mal Raj , the question that came up for consideration was regarding the interpretation of 'date of decree'. The question of limitation under Article 136 of the Limitation Act was also considered. Their Lordships followed the decision reported in Yeshwant Deorao v. Walchand Ramchand : [1950]1SCR852 . In the said decision, their Lordships held as follows:
A decree can only be said to be enforceable when it is incapable of execution on the date when it is passed, on account of the very terms of the decree. There must be something inherent in the decree which does not make it enforceable immediately when it is passed and postpones its execution to some contingency which is to happen in future and which is beyond the control of the decree-holder. Limitation for execution of decree commences from the date of the decree and neither non-payment of court-fee nor non-supply of stamp paper for the purpose of drawing up of the decree can arrest the running of limitation.
33. The right to enforce the decree, it appears to me, is one thing; the possibility or practicability of exercising the right is another. If by the terms of a decree, the decree-holder has become entitled to execute it immediately, an instant right to execute it has accrued to him contemporaneously with the passing of the decree. Even if he is prevented by some external circumstances from enforcing the decree for some time, the right as a right, is nevertheless a present right is not merely the right declared by the decree but the right to enforce the decree, because if a decree declares certain rights in favour of a person and there is nothing in the decree itself by which they are declared with effect from a future date or which postpones the right to execution to some date in the future, there is no reason to say that a present right to enforce the decree does not accrue to the decree-holder as soon as the decree is passed. It may be that, though entitled under the terms of the decree to enforce it immediately, he cannot in fact do so for some time by reason, say, of having to comply first with some procedural requirement, as in the present case, but that only means that it is not practicable for him yet to enforce the decree and not that a present right to enforce it has not accrued. If, to take the present case further, the decree-holder could not execute the decree till he could procedure and produce a certified copy of it, that only means that so long as he could not produce a certified copy, he could not produce before the executing Court proof of his present right to enforce the decree and not that the right itself had not arisen.
34. In this case, there is one more reason why it has to be held that the decree-holder is not entitled to get a larger period of limitation. He was given notice to file the stamp papers on or before 17.3.1992. The stamp papers were not produced for reasons best known to the decree-holder himself, and he defaulted. By his own default the decree was not engrossed on stamp paper. After having defaulted by his own act, he cannot seek extension of time on the ground that unless it is engrossed on stamp paper, the decree is unenforceable. According to me, even the notice issued by the court calling for stamp duty will not give a further time. It is only reminding the decree-holder/ plaintiff of his duties, once he has detained the decree. Immediately, after the final judgment was passed, it was his duty to produce the stamp paper. The court reminded him, but he failed in his duty. Such a person cannot seek the indulgence of the court for getting an extended period of limitation. The decree is effective from the date of judgment itself, and he was in opposition to execute the decree immediately after the judgment. That was not done by him. It was a deliberate refusal of his part to produce the stamp paper. The finding of the lower court that the execution petition is not barred by limitation cannot, therefore, be sustained. Hence, I hold that the execution petition is barred by limitation.
35. In the result, the civil revision petition is allowed; the order of the court below is set aside, and the execution petition is dismissed. No costs.