Shineup Fibres Ltd. Vs. Premier Threads Private Limited and Ors. - Court Judgment

IN THE HIGH COURT AT CALCUTTA Ordinary Original Civil Jurisdiction ORIGINAL SIDE Present : The Hon’ble Justice Soumen Sen G.A.3532 of 2014 E.C.No.559 of 2013 C.S.71 of 1999 SHINEUP FIBRES LTD.versus PREMIER THREADS PRIVATE LIMITED & ORS.For the Plaintiff/Decree-holder : Mr.Reetobroto Mitra, Mr.Suddhasatva Banerjee For the Defendant /Judgment-debtor : Mr.Anuj Singh, Mr.Saunak Sengupta, Mr.A.Samanta, Heard on :20.11.2014,08.01.2015, 15.01.2015,29.01.2015, 03.03.2015,10.03.2015, 07.04.2015,09.04.2015, 23.04.2015, 28.04.2015 Judgment on : 29th April, 2015 Soumen Sen, J.:- The petitioner has filed an application for execution of a decree dated December 4, 2001 as amended on December 13, 2001.

In the said proceeding this application has been filed for dismissal of the execution application, inter alia, on the grounds:i) The decree is incapable of being executed by this Hon’ble Court as none of the properties of the judgment debtor are within the jurisdiction of this Hon’ble Court and, hence, under Section 39(4) of the Code of Civil Procedure, 1908 the said application ought to be dismissed and/or be transferred to the appropriate Court.

ii) The decree is barred by limitation as it has been filed 12 years after passing of the decree.

The execution application has been filed on December 11, 2013.

The fate of the application depends upon a finding being arrived at in favour of the applicant/decree-holder that the period between the date of decree and correction of the decree are to be excluded in computing the period of limitation as the decree becomes enforceable and executable only after the decree was corrected and not prior thereto.

In other words, the Court would be required to decide if the time interval between the original decree and the corrected decree is to be excluded and the decree-holder would be entitled to compute the period of limitation from the date of correction of the order and not from the date when the original order was passed.

The question requires to be gone into is when would the period of limitation start for execution of a decree.

Is it the date of pronouncement of judgment/date of decree or when the decree is corrected and drawn up and/or signed?.

In an application filed under Chapter XIIIA of the Original Side Rules, a decree was passed on 4th December, 2001.

Since the said decree contains some errors and omissions on mentioning the said decree was corrected on 13th December, 2001.

Thereafter, the decreeholder had put in requisition for drawing up and completion of the decree and to obtain a certified copy thereof.

However, no further steps were taken by the plaintiff to obtain a certified copy of the decree.

On 3rd May, 2013, a decree dated 4th December, 2001 was placed for signature.

On 3rd May, 2013 the said decree was signed.

The order dated 3rd May, 2013 records that the learned Counsel for the plaintiff on instruction submitted that the plaintiff would forego interest granted by the decreeholder from 1st January, 2006 till date.

Mr.Anuj Singh, the learned Counsel appearing on behalf of the judgment-debtor submits that the decree dated 4th December, 2001 is not executable since an application for execution was filed by the decreeholder on 11th December, 2013 which is beyond the period of 12 years within which an application is to be filed for execution of a decree.

It is submitted that in terms of Article 136 of the Limitation Act, 1963, the said execution application ought to have been filed by 5th of December, 2001.

It is submitted that the decree became executable immediately when the said decree was passed.

The judgment-debtor asserts that the correction made by the order dated 13th December, 2001 has to be read into the original order dated 4th December, 2001 and as such the wheel of limitation began to roll from 4th December, 2001 itself and not from 13th December, 2001 being the date which the decree-holder chose to approach this Hon’ble Court seeking correction in the original order dted 4th December, 2001.

It is submitted that by order dated 13th December, 2001 various clerical, arithmetical and/or accidental errors that had occurred in the order dated 4th December, 2001 by reason of accidental slip and/or omission by the Hon’ble Judge, were rectified.

In view of the aforesaid, the subject money decree became enforceable on 4th December, 2001 itself.

The said decree did not provide for any pre-condition or happening of any event before which the said decree could have become enforceable.

It is submitted that in view of the bar contained in Article 136 of the Limitation Act, the application for execution of decree dated 4th December, 2001 ought to have been filed within 12 years from the date it became enforceable.

The decree-holder having failed to approach this Hon’ble Court within the stipulated time has given a right to the judgment-debtor to pray for dismissal of the proceedings.

The nature of correction that was made by order dated 13th December, 2001 was one under Section 152 of the Code of Civil Procedure, 1908, which is confined to something initially intended by the Court but left out inadvertently.

It is submitted that the correction ordered by order dated 13th December, 2001 clearly falls within Section 152 of the Code of Civil Procedure.

In this regard the petitioner relies upon a judgment of the Hon’ble Supreme Court in Jayalakshmi Coelho versus Oswald Joseph Coelho reported at AIR2001SC1084(Paragraph

15) where the Hon’ble Supreme Court while discussing the scope of Section 152 of the Code of Civil Procedure has held that in a matter where it is clear that something which the court intended to do, but the same was omitted by reason of accidental slip or any mistake creeps in due to clerical or arithmetical mistake, the Court would be justified in rectifying such mistake.

In the case at hand, the errors were so obvious that the same were immediately corrected by the Hon’ble Court without even calling for the judgment debtor to be served.

The correction as indicated in the order dated 13th December, 2001, therefore, cannot be said to be an amendment of decree, as sought to be contended by the decree-holder.

The judgment-debtor further relies upon a judgment of the Hon’ble Supreme Court in Master Construction Co.(P) LTD.versus State of Orissa & Anr.

reported at AIR1966SC1047(Paragraph

7) wherein the Hon’ble Supreme Court while discussing another statute dwelled upon the scope of powers to correct arithmetical and/or clerical mistake.

In the said judgment the Hon’ble Supreme Court while discussing Rule 83 or Orissa Sales Tax Rules, 1947 pari materia to Section 152 of the Code of Civil Procedure has observed as follows:“An error arising out of or occurring from an accidental slip or omission is an error due to a careless mistake or omission unintentionally made.

There is an another qualification, namely, such an error shall be apparent on the face of the record, that is to say, it is not an error which depends for its discovery, on (sic) elaborate arguments on the question of fact or law.

The accidental slip or omission is an accidental slip or omission made by the Court.

The obvious instance is a slip or omission to embody in the order something which the court, in fact, ordered to be done.

This is sometimes described as a decreetal order not being in accordance with the judgment.

But the slip or omission may be attributed to the Judge himself.

He may say something or omit to say something which he did not intend to say or omit.

This is described as a slip or omission in the judgment itself.

The cause for such a slip or omission may be Judge’s inadvertence or the advocate’s mistake.

But, however, wide the said expressions are construed they cannot countenance a re-argument on merits on questions of fact or law or permit a party to raise new argument which he has not advanced at the fiRs.instance”.

On the scope of Article 136 of the Limitation Act, the learned Counsel has referred to the following decisions:1) West Bengal Essential Commodities Supply Corporation versus Swadesh Agro Farming & Storage PVT.LTD.& Anr.

reported at AIR1999SC3421Paragraph 8;

2) Biswapati Dey versus Kennsington Stores & ORS.reported at AIR1972Cal 172;

3) Hameed Joharan & ORS.versus Abdul Salam by LRs.& ORS.reported at AIR2001SC3404 It is submitted that although the decree was corrected on 13th December, 2001 but for the purpose of computing the period of limitation, the time would start from the date when the decree was passed and not from the date when the decree was amended.

simple money decree.

It is a It is submitted that such amendment and/or correction to the decree would relate back to the date of pronouncement of the original decree.

It is submitted that any other interpretation would lead to absurd result and against the spirit of the Limitation Act.

Per contra, Mr.Reetobroto Mitra, the learned Counsel appearing on behalf of the decree-holder submits that Article 136 of the Limitation Act, 1963 is clear and unambiguous.

The said article restricts the period of execution of a decree or order of any Civil Court to 12 years from the date “when the decree or order becomes enforceable or any subsequent order directs any payment of money……”.

In the instant case, it is absolutely clear that the judgment as on December 4, 2001 did not direct any payment of money nor was the decree on the basis of such judgment enforceable.

By no stretc.of imagination could the decree of December 4, 2001 be enforced in any manner whatsoever.

Hence, the said judgment and decree of December 4, 2001 was not enforceable.

Even on a very restrictive interpretation, it cannot be denied that the judgment and decree was corrected and/or amended on December 13, 2001.

Without the amendment of December 13, 2001, there is actually no decree in the judgment of December 4, 2001 which could be enforced or executed.

Hence, the date on which the decree becomes “enforceable” as envisaged under Article 136 of the Limitation Act, 1963, in the instant case, without an iota of doubt, is December 13, 2001.

It is submitted that the nature of the correction in the original decree is such that it amended the original order and decree dated 4th December, 2001.

Although the learned Single Judge intended to pass a decree in favour of the defendant No.1 but the sentence that “there will be a decree for a sum of Rs.28,48,787.86/- against the defendant No.1” has been erroneously omitted.

In fact, by the order dated 4th December, 2001, no decree was passed against the defendant No.1 although from a reading of the said order dated 4th December, 2001, it would appear that the learned Single Judge intended to pass a decree against the defendant No.1.

The learned Counsel relying upon the decisions in Laxmibai Hareshwar Joshi & ORS.versus The State of Maharashtra & ORS.reported at AIR1977Bombay 168; Fatimunnisa Begum versus Mohammed Zainulabuddin Saheb & ORS.reported at AIR1986Andhra Pradesh 355; West Bengal Essential Commodities Supply Corporation versus Swadesh Agro Farming & Storage PVT.LTD.& anr.

reported at AIR1999SC3421 Hameed Joharan & ORS.versus Abdul Salam by L.Rs.& ORS.reported at AIR2001SC3404submitted that the date of enforceability of the decree has to be reckoned from the date of amendment of the decree and not from the original decree.

It is submitted that the Hon’ble Supreme Court in Akkayanaicker versus A.A.A.Kotchadainaidu & Anr.

reported at 2004 (12) SCC469held that in view of the words “when the decree or order becomes enforceable” occurring in Article 136 of the Limitation Act, 1963, the starting point of limitation would the date on which the decree becomes capable of execution.

It is argued that in the instant case, a comparative reading of December 4, 2001 and December 13, 2001 will clearly show that December 4, 2001 has no existence of its own, without December 13, 2001.

Hence the date of the amended decree, i.e., December 13, 2001 makes the decree executable and, hence, the application for execution filed on December 11, 2013 is within the period of limitation.

In computing the period of 12 years for filing the execution application, the date of decree which according to Section 9 of the General Causes Act is the date of judgment has to be excluded.

Section 12(1) of the Limitation Act applies to execution petition.

The said Section is required to be read with Article 136 of the Limitation Act.

In order to appreciate the argument of the respective Counsels it would be fruitful to refer to Section 12(1).Article 136 of the Limitation Act and Chapter XVII Rule 10 of the Rules of High Court at Calcutta, Original Side, 1914:“S.12(1).In computing the period of limitation for any suit, appeal or application, the day from which such period is to be reckoned, shall be excluded.” “Art 136.

For the execution Twelve [When].of order any (other decree years than a the decree or becomes enforceable or where the decree granting a decree mandatory subsequent order directs injunction) or or any any payment of money or order of any Civil the Court.

property to be made at a delivery certain of date any or at recurring periods when default in making the payment or delivery in respect of which execution is sought, takes place: Provided application that an for the enforcement or execution of a decree granting a perpetual injunction shall not be subject to any period of limitation.

“Ch.XVII R.10.

Application for execution Form.

– The application for execution, whether the provisions of O.XXI, r.

22 of the Code, apply or not, shall be in Form No.1, and shall be on a sheet of durable paper of good quality foolscap size, and shall, in addition to the particulars mentioned in O.XXI, r.

11(2) of the Code, contain the following:Contents (a) (Under column 6)-The date and nature of any writ issued before or after judgment.

(b) (By way of schedule).The description of the property and the interest of the judgment-debtor therein as required by O.XXI, r.13 of the Code.

(c) A state of the estimated value of the property sought to be attached, or, if such property is incumbered, the value thereof after providing for the satisfaction of the incumbrances.

Copy decree to accompany in all cases In all cases, the application shall be accompanied by a duly certified copy of the decree.” Under the present Article 136 the period of limitation for execution of any decree or order or any Civil Court (other than a decree granting a mandatory injunction is 12 yeaRs.In the instant case, decree is covered by fiRs.limb of Article 136, that is to say, “when the decree or order becomes enforceable”.

The concept of enforceability and executability of the decree under Article 136 of the Limitation Act has been elaborately discussed in Hameed Joharan (supra) in which it is stated that:“1.

Availability of the plea of limitation in the matter of execution of decree has been the key issue in this appeal.

The word ‘execution’ stands derived from the Latin “ex sequi,” meaning, to follow out, follow to the end, or perform, and equivalent to the French “executor,” so that, when used in their proper sense, all three convey the meaning of carrying out some act or couRs.of conduct to its completion (vide vol.33 – Corpus Juris Secundum).2.

Lord Denning in Re Overseas Aviation Engineering (G.B.) Ltd.: (L.R.1963: Ch.24) has attributed a meaning to the word ‘execution’ as the process for enforcing or giving effect to the judgment of the court and stated: “The word “execution” is not defined in the Act.

It is, of course, a word familiar to lawyeRs.“Execution” means, quite simply, the process for enforcing or giving effect to the judgment of the court: and it is “completed” when the judgment creditor gets the money or other thing awarded to him by the judgment.

That this is the meaning is seen by reference to that valuable old book Rastill Terms De la Ley, where it is stated: “Execution is, “where judgment is given in any Action, that the plaintiff shall “recover the land, debt, or damages, as the case: and when any “Writ is awarded to put him in Possession, or to do any other “thing whereby the plaintiff should the better be satisfied his debt “or damages, that is called a writ of execution; and when he hath “the possession of the land, or is paid the debt or damages, or “hath the body of the defendant awarded to prison, then he hath “execution”.

And the same meaning is to be found in Blackman V.

Fysh (1892) 3 Ch.

209, when Kekewich, J.

said that execution means the “process of law for the right”.

In cases when execution was had by means of a common law writ, such as fieri facias or elegit, it was legal execution: when it was had by means of an execution equitable remedy, such as the appointment of a receiver, then it was equitable execution.

But in either case it was “execution” because it was the process for enforcing or giving effect to the judgment of the court.” 3.

Presently, Article 136 of the Limitation Act, 1963, prescribes a period of twelve years for the execution of a decree other than a decree granting a mandatory injunction or order of any civil court.

As regards the time from which the period of twelve years ought to commence, the statute has been rather specific in recording that the period would commence from the date of the decree or order when the same becomes enforceable.

We need not go into the other situations as envisaged in the statute for the present purpose, save what is noticed above.

To put it shortly, it, therefore, appears that a twelve year period certain has been the legislative choice in the matter of execution of a decree.

Be it noted that corresponding provisions in the Act of 1908 were in Articles 182 and 183 as regards the statute of 1871 and 1877, the corresponding provisions were contained in Articles 167, 168, 169 and 179, 180 respectively.

Significantly, Article 182 of the Limitation Act of 1908 provided a period of three years for the execution of decree.

Be it clarified that since the reference to the 1908 Act would be merely academic, we refrain ourselves from recording the details pertaining to Article 182 save what is noted hereinafter.

It is in this context, however, the Report of the Law Commission on the Act of 1963 assumes some importance, as regards the question of limitation and true purport of Article 136.

Before elaborating any further, it would be convenient to note the Report of the Law Commission which reads as below: “170.

Article 182 has been a very fruitful source of litigation and is a weapon in the hands of both the dishonest decreeholder 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 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 some time within the twelve years immediately proceeding the date of the