CASE NO.: Appeal (civil) 5005 of 1999 PETITIONER: WEST BENGAL ESSENTIAL COMMODITIES SUPPLY CORPORATION RESPONDENT: SWADESH AGRO FARMING AND STORAGE PVT. LTD. AND ANR. DATE OF JUDGMENT: 14/09/1999 BENCH: K. VENKATASWAMI & SYED SHAH MOHAMMED QUADRI JUDGMENT:
JUDGMENT
1999 Supp(2) SCR 399
The Judgment of the Court was delivered by
SYED SHAH MOHAMMED QUADRI, J. Leave is granted.
The short but a question of some significance which arises for
consideration in this appeal, is whether the period of limitation, under
Article 136 of the Limitation Act, 1963, will start from the date of the
decree or from the date when the decree is actually drawn up and signed by
the judge.
The facts giving rise to the question may be noticed here.
On June 11, 1980, the appellant filed Suit No. 504 of 1980 in the High
Court of Judicature at Calcutta against the respondents for recovery of a
sum of Rs. 82, 933.80 with interest. On March 8, 1982, the High Court
decreed the suit ex-parte for the said amount with interest thereon at the
rate of 6% per annum. However, the decree was actually drawn up and signed
by the learned Judge on August 9, 1983. The appellant filed application,
G.A. No. 374 of 1995, for execution of the decree before the High Court on
June 5, 1995. The learned Executing Judge ordered execution of the decree.
But, on appeal by the respondents, the Division Bench of the High Court set
aside the order of the learned Executing Judge holding that the execution
petition was barred by limitation under Article 136 of the Limitation Act
and thus allowed the appeal on September 30, 1997. That judgment and order
is challenged by special leave, in this appeal.
Mr. Tapas Ray, learned senior counsel appearing for the appellant, has
argued that for purposes of Article 136 of the Limitation Act, the starting
point of limitation is not the date of the decree but the date when the
decree becomes enforceable; it was only when the decree was actually drawn
up and signed, after a lapse of one year and three and three months of
delivering the judgment, that it became enforceable, and from that date the
appellant was entitled to the benefit of full period of limitation; so its
application for execution could not be held to be barred by limitation.
According to Mr. Ray, for an application under Order XXI Rule 11(2) of the
Code of Civil Procedure, a copy of the decree must be available and the
period of limitation must be reckoned from the date when the Court was in a
position of making a copy of the decree available as it was on that date
the decree became executable. The learned counsel urged that Rule 11(2) of
Order XXI must be read with Rules 6 and 7 of Order XX C.P.C. and so read,
for purposes of execution, the decree would come into existence only when
it was actually drawn up and signed and not on the date when the judgment
was pronounced.
Mr. P. Bhaskar Gupta, learned senior counsel for the respondents, has
submitted that under Rule 6A(2)(b) of Order XX C.P.C, for purposes of
execution of the decree the last portion of the judgment itself will be
treated as a decree, irrespective of the date when the decree is actually
drawn up and signed and that under Rule 7 of Order XX C.P.C. the decree has
to bear the date of the judgment; from the date of the judgment till the
expiry of the period of limitation, the decree holder had the opportunity
of executing the decree so he cannot have any grievance for late drawing up
of the decree and stamping the date of the judgment on it. Learned senior
counsel invited our attention to sub-rule (3) of Rule 11 of Order XXI
C.P.C. and contended that the Executing Court might require the applicant
seeking execution of the decree under sub-rule (2) to produce a certified
copy of the decree, but the execution petition need not be accompanied by a
certified copy of the decree. Sections 12(2) and 5 of the Limitation Act,
submitted the learned counsel, did not apply to execution petitions and if
the contention of the appellant were to be accepted then it would amount to
rewriting those provisions so as to provide for excluding the time for
preparation and signing of the decree; therefore, that contention is liable
to be rejected.
On the above contentions, we shall commence the determination of the
question by first reading Article 136 of the Limitation Act which is as
follows:
“136. For the execution of Twelve years [When] the decree or order any
decree (other than a becomes enforceable or decree granting a mandatory
where the decree or any injunction) or order of any
subsequent order directs 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.”
From a perusal of the Article, extracted above, it is clear that for
execution of any decree (other than a decree granting a mandatory
injuction) or order of a civil court, a period of 12 years is prescribed;
Column 3 contains two limbs indicating the time from which period of
limitation begins to run, that is, the starting point of limitation; they
are: (i) when the decree or order becomes enforceable and (ii) 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. The proviso says that there shall be no period of
limitation for enforcement or execution of decree granting a perpetual
injuction. We are concerned here with the first of the above-mentioned
starting points, namely, when the decree or an order becomes enforceable. A
decree or order is said to be enforceable when it is executable. For a
decree to be executable, it must be in existence. A decree would be deemed
to come into existence immediately on the pronouncement of the judgment.
But it is a fact of which judicial notice may be taken of that drawing up
and signing of the decree takes some time after the pronouncement of the
judgment; the Code of Civil Procedure itself enjoins that the decree shall
be drawn up expeditiously and in any case within 15 days from the date of
the judgment. If the decree were to bear the date when it is actually drawn
up and signed then that date will be incompatible with the date of the
judgment. This incongruity is taken care of by Order XX Rule 7 C.P.C.
which, inter alia, provides that the decree shall bear the date and the day
on which the judgment was pronounced.
To enable a person who would like to execute the decree before it is
actually drawn up, Rule 6A is inserted in the Code by the Amendment Act,
1976 (Act 104/76), which is extracted hereunder:
“6-A. Last paragraph of judgment to indicate in precise terms the reliefs
granted-
(1) The last paragraph of the judgment shall state in precise terms the
relief which has been granted by such judgment.
(2) Every endeavour shall be made to ensure that the decree is drawn up as
expeditiously as possible, and, in any case, within fifteen days from the
date on which the judgment is pronounced; but where the decree is not drawn
up within the time aforesaid, the Court shall, if requested so to do by a
party desirous of appealing against the decree, certify that the decree has
not been drawn up and indicate in the certificate the reasons for the
delay, and thereupon-
(a) an appeal may be preferred against the decree without filing a copy of
the decree and in such a case the last paragraph of the judgment shall, for
the purposes of Rule 1 of Order XLI, be treated as the decree; and
(b) so long as the decree is not drawn up, the last paragraph of the
judgment shall be deemed to be the decree for the purpose of execution and
the party interested shall be entitled to apply for a copy of that
paragraph only without being required to apply for a copy of the whole of
the judgment; but as soon as a decree is drawn up, the last paragraph of
the judgment shall cease to have the effect of a decree for the purpose of
execution or for any other purpose:
Provided that, where an application is made for obtaining a copy of only
the last paragraph of the judgment, such copy shall indicate the name and
address of all the parties to the suit.”
Rule 6A enjoins that the last paragraph of the judgment shall state in
precise terms the relief which has been granted by such judgment. It has
fixed the outer time limit of 15 days from the date of the pronouncement of
the judgment within which the decree must be drawn up. In the event of the
decree not so drawn up, clause (a) of sub-rule (2) of Rule 6A enables a
party to make an appeal under Rule I of Order XLI C.P.C. without filing a
copy of the decree appealed against and for that purpose the fast paragraph
of the judgment shall be treated as a decree. For the purpose of execution
also, provision is made in clause (b) of the said sub-rule which says that
so long as the decree is not drawn up, the last paragraph of the judgment
shall be deemed to be a decree. Clause (b) has thus enabled the party
interested in executing the decree before it is drawn up to apply for a
copy of the last paragraph only, without being required to apply for a copy
of the whole of the judgment. It further lays down that the last paragraph
of the judgment shall cease to have the effect of the decree for purposes
of execution or for any other purposes when the decree has been drawn up.
It follows that the decree became enforceable the moment, the judgment is
delivered and merely because there will be delay in drawing up of the
decree, it cannot be said that the decree is not enforceable till it is
prepared. This is so because an enforceable decree in one form or the other
is available to a decree holder from the date of the judgment till the
expiry of the period of limitation under Article 136 of the Limitation Act.
In Rameshwar Singh v. Homes-war Singh, AIR (1921) PC 31 it was held:
“They (Their Lordships) are of opinion 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
endorsed.”
There may, however, be situations in which a decree may not be enforceable
on the date it is passed. First a case where a decree is not executable
until the happening of a given contingency, for example, when a decree for
recovery of possession of immoveable property directs that it shall not be
executed till the standing crop is harvested, in such a case time will not
begin to run until harvesting of the crop and the decree becomes
enforceable from that date and not from the date of the judgment/decree.
But where no extraneous event is to happen on the fulfilment of which alone
the decree can be executed it is not a conditional decree and is capable of
execution from the very date it is passed (Yeshwant Deorao v. Walchand
Ramchand, AIR (1951) SC 16). Secondly, when there is a legislative bar for
the execution of a decree then enforceability will commence when the bar
ceases. Thirdly, in a suit for partition of immoveable properties after
passing of preliminary decree when, in final decree proceedings, an order
is passed by the court declaring the rights of the parties in the suit
properties, it is not executable till final decree is engrossed on non-
judicial stamp paper supplied by the parties within the time specified by
the Court and the same is signed by the Judge and sealed, It is in this
context that the observations of this court in Shankar Balwant Lokhande
(Dead) by Lrs.v. Chandrakant Shankar Lokhande & Anr., [1995] 3 SCC 413 have
to be understood. These observations do not apply to a money decree and ,
therefore, appellant can derive no benefit from them.
In the instant case, the decree is a money decree. The decree became
enforceable immediately on the pronouncement of the judgments as thereupon
a deemed decree came into existence. It cannot, therefore, be said that the
delay in drawing up of the decree renders it unenforceable from the date of
the judgment.
The next contention of Mr. Ray is that due to the court taking more than a
year and three months to draw up and sign the decree, the period of
limitation of 12 years, available to the appellant, is cut short so the
starting point of limitation has to be computed from the date of signing of
the decree to avert hardship and prejudice to him. The submission appears
to be attractive, but falls to scrutinizing. The argument is obviously
based on the maxim “actus curiae beminem gravabit” (an act of the court
shall prejudice no man). It would apply to relieve a party of the hardship
or prejudice caused due to the act of the Court. But to invoke this maxim
it is not enough to show that there is delay in drawing up of the decree,
it must also be shown that the appellant has suffered some hardship or
prejudice due to the delay of the Court. In other words, there must be a
nexus between the act of the court complained of and the hardship or
prejudice suffered by the party.
In Raj Kumar Dey & Ors. v. Tarapada Day & Ors. [1987] 4 SCC 398, the
Calcutta High Court had quashed the registration of the award on the ground
that it was presented for registration beyond time. This Court applying,
inter alia, the above maxim held that the High Court was in error in
quashing the registration of the award. There, during the material period,
the award was in the custody of the Court and the arbitrator, inspite of
his efforts, could not have got it registered; it was presented for
registration the very next day it was returned to the arbitrator.
In Gursharan Singh & Ors. v. New Delhi Municipal Committee & Ors., [1996] 2
SCC 459 this Court granted interim directions in favour of the appellants
to pay licence fee at the concessional rate. At the time of final disposal,
it was found that the appellants were not entitled to the concessional
rate. Applying the maxim “actus curiae neminem gravabit”, the respondents
were ordered to be paid the balance amount together with interest.
In these cases, as can be seen, there was nexus between the action of the
Court and the prejudice suffered by the party. But, in the instant case,
there is no nexus between drawing up of the decree after more than a year
from the date of the judgment and its execution petition getting barred by
limitation. It may be noticed here that the scheme of the Code, having
taken note of the delay in preparation and signing of the decree, provides
enough safeguards to the parties to execute the decree from the date of the
judgment/ decree till the expiry of the period of limitation.
The decree-holder could have enforced the money decree immediately on the
pronouncement of the judgment by making an oral application under sub-rule
(I) of Rule 11 of Order XXI C.P.C. For filing an application under sub-rule
(2) of Rule 11 C.P.C., a copy of the decree need not be enclosed. What all
sub-rule (3) of the said Rule says is that the Court may require the
applicant under sub-rule (2) to produce a certified copy of the decree. On
being required to do so, it could have produced the last portion of the
judgment which has the effect of the decree under Rule 6A of Order XX
C.P.C. It is not a case where the appellant lost the period of limitation
because of any act of the Court but it is a case where the appellant failed
to apply for execution of the decree for reasons best known to it and how
seeks to take advantage of the fact that the Court took time for drawing up
and signing the decree. In our view, the delay in drawing up and signing
the decree did not cause any prejudice to him. There is no nexus between
the late drawing up of decree by the Court and the filing of the execution
petition by the appellant after the expiry of the limitation.
Under the scheme of the Limitation Act, execution applications, like
plaints have to be presented in the Court within the time prescribed by the
Limitation Act. A decree holder does not have the benefit of exclusion of
the time taken for obtaining the certified copy of the decree like the
appellant who prefers an appeal, much less can he claim to deduct time
taken by the Court in drawing up and signing the decree. In this view of
the matter, the High Courts of Patna and Calcutta in Sri Chandra Mouli Deva
v. Kumar Binoya Hand Singh & Ors., AIR (1976) Patna 208 and Sunderlal &
Sons v. Yagendra Nath Singh & Anr., AIR (1976) Calcutta 471 have correctly
laid down the law; the opinion to the contra expressed by the High Court of
Calcutta in Ram Krishna Tarafdar v. Nemai Krishna Tarafdar & Ors. AIR
(1974) Calcutta 173 is wrong. Section 5 of the Limitation Act has no
application; Section 12(2) of the Limitation Act is also inapplicable to an
execution petition. If the time is reckoned not from the date of the decree
but from the date when it is prepared, it would amount to doing violence to
the provisions of the Limitation Act as well as of Order XX and order XXI
Rule 11 C.P.C. which is clearly impermissible.
In the result, we hold that the period of limitation under Article 136 of
the Limitation Act runs from the date of the decree and not from the date
when the decree is actually drawn up and signed by the Judge. We,
therefore, do not find any illegality in the impugned judgment of the High
Court. The appeal fails and it is accordingly dismissed. No costs.