JUDGMENT
Narasimham, J.
1. These six revision petitions are against the order of the District Munsif of Aaka rejecting six execution petitions Nos.
269, 271, 272, 273, 276 and 277 of 1944 on the ground that they were barred by limitation. The revision petitions were first heard by my Lord the Chief Justice sitting singly and he was pleased to refer to a larger Bench in view of the doubt entertained by him regarding the correctness of two Division Bench decisions of the Patna High Court reported in Banwari Narain v. Ramhari Narain, A. I. R (29) 1942 pat. 335: (197 I. C. 217) and Mohammad Sadique Mian v. Mdkabir Sao, A. I. E. (29) 1942 Pat. 410 : (21 Pat. 866).
2. The material facts which are not in dispute are as follows: Execution petn. no. 269 of 44 arose out of a Small Oause Court suit which was disposed of on 1st August 1944 and the remaining five execution petitions arose out of Small Cause Court suits which were disposed of on 8th August 1941. In all those suits, the decrees were actually drawn up and signed by the Munsif on 21st August 1941, and the decrees not only bore the dates on which the suits were disposed of (1st or 8th August as the case may be) but also the date on which they were actually signed (21st August 1941). The decree-holder is the same in all the execution petitions which were filed on 21st August 1944. By virtue of Article 182, Limitation Act, the execution petitions appear prima facie to be time-barred. Bat the decree-holder’s main contention is that in all the six cases the decrees were formally drawn up and signed by the Court only on 21st August 1941 and that consequently limitation should run from that date and not from the date which the decrees bear. The whole question therefore turns on the construction of the expression ‘date of decree’ occurring in Clause (1) of Article 182, Limitation Act. The lower Court relied on Order 20, Rule 7, Civil P. C. and held that the expression ‘date of decree’ meant the date which the decrees bore and that inasmuch as under the aforesaid provision of the Civil Procedure Code the decree was required to bear the date of the judgment and not the date on which it was actually drawn up and signed, the former date alone should be taken to be the date of decree for the purpose of Article 182, Limitation Act also.
3. The expression ‘date of decree’ occurs in several provisions of the Civil Procedure Code such as Sections 34, 48(1)(a), proviso (b) to Section 61, Order 21, Rule 11 (2) (2), Order 21, Rule 22 (1) (a) and Order 45, Rule 7. Order 20, Rule 7 runs as follows:
“Date of decree.–The deoiee shall bear date the day on which the judgment was pronounced and, when the Judge has satisfied himself that the deoree has been drawn up in accordance with the judgment he shall sign the decree.”
Though the expression ‘date of decree’ has nowhere been defined in the ordinary way in the Civil Procedure Code, there seems to be a unanimity amongst all the High Courts of India as well as the Privy Council that by virtue of Order 20, Rule 7 the date of decrea means the date on which the judgment is pronounced and not the date on which the deoree is formally drawn up and signed. In the Indian Limitation Act also, the expression ‘date of decree’ occurs in several Articles such as Articles 152, 156, 161,162, 164, 169, 170, 173, 175 and 182 etc. and there is no definition of that expression. But almost all the High Courts seem to be unanimous that even in the Limitation Act the expression ‘date of decree’
should be given the same meaning as indicated in Order 20, Rule 7, Civil P. C. So far as Articles 152, 156 and other Articles dealing with limitation for appeals, reviews, etc. were concerned, a direct decision of the question was not really necessary inasmuch as by relying on Section 12, Limitation Act the interval between the date of judgment and the date of decree could always excluded. But for the purpose of Article 182, however, Section 12, Limitation Act will be of no avail and onr attention has not been invited to any decision of any High Court in India or of the Privy Council in which it was held that for the purpose of Article 182 the expression ‘date of decree’ should be construed as meaning the date on which the decree was actually signed. The petitioner’s Advocate Mr. P. V. B. Rao was fully aware of his up-hill task in view of the unanimity of decisions against him. Bat he pressed for a full consideration of the entire question and relied mainly on some observations of the Privy Council in Bameshwar Singh v. Homeswar Singh, A. I. R. (8) 1921 P. C. 31 : (48 I. A. 17).
4. Mr. P. V. B. Rao’s arguments may be Bummed up thus: (i) Ordinarily the date of document is the date on which it is drawn up and signed by the parties and by parity of reasoning the date of deoree must mean the date on which the decree is drawn up and signed. There is no special reason as to why this ordinary grammatical meaning should not be given to that expression in Article 182. In any case, the delay between the date of pronouncing the judgment and the date of the drawing up and signing of the decree is due to the laches of the Court and the deoree holder should not be penalised for the act of the Court, (ii) To give an extreme case, if the Court takes three years to draw up and sign a formal decree after pronouncing the judgmeatit will be grossly unfair to take the date of the judgment as the date of the decree and thus deprive the decree-holder of his right to execute the decree at all. (iii) When questioned as to what was the intention of the Legislature in making Order 20, Rule 7, Civil P. C., he urged that the said rule may merely refer to the contents of a decree and may indicate that so far as substantive rights as between the decree-holder and the judgment-debtor are concerned the relevant date is the date of judgmeutbut as regards limitation which is procedural law, the principle of Order (20, Rule 7 should not be applied, (iv) He further urged that Order 20, Rule 7 being in Schedule 1, Civil P. C., was liable to amendment by any High Court whereas the provisions of the Indian Limitation Act could be amended only by an Act of the appropriate Legislature. Consequently an artificial construction should not be put on an expression
occurring in the Limitation Act by making it dependent on the meaning given to an identical expression occurring in Schedule 1, Civil P. C., and thereby enable High Courts to amend the law of limitation thus indirectly permitting them io do what they have no authority to do directly.
5. The whole question turns on the construction of the expression ‘date of decree’ occurring in Clause (1) of Article 182, Limitation Act. It is true that the words in the Limitation Act should be given their natural grammatical meaning and equitable considerations are wholly out of place, Nagendra Nath v. Suresh Chandra, A.I.R. (19) 1982 P. c. 165 : (60 Cal. 1 P. C.). But can it be said that the plain grammatical meaning of the expression ‘date of decree’ is the date on which it is actually drawn up and signed? On the other hand, the grammatical meaning of the expression ‘date of a document’ seems to be the date which the document actually bears. The only date which a decree is required to bear is the date of the judgment by virtue of Order 30, Rule 7 read with App D, Civil P C. Doubtless in these decrees the dates on which the Munsif signed the decrees were alao put but these were not statutorily required to be given either by the provisions of the Civil Procedure Code or by the Civil Rules of Practice and Circular Orders of the High Court of Madras which weie in force at Aska at the time of the drawing up of the decrees. But why should the ordinary meaning of the ‘date of a document be departed from merely because the Court inserted in the document additional particulars which it was not statutorily required to do?
6. It is conceded that the Civil Procedure Code and the Indian Limitation Act are statutes in part materia and following the dictum of Lord Mansfield in Rex v. Loxdale the two statutes are to be “taken and construed together as one system as explanatory of each other.” Similar words and expressions occurring in the two statutes should be given the same meaning unless there is something repugnant in the subject or context: Tribeni Prasad v. Bamasray Prasad, (A.i.r. (18) 1931 pat. 241: do pat. 670 F. b.) and Durag Pal v. Pancham Singh, A.i.r. (26)
1939 ALL. 403: (I. L. R. (1939) ALL. 647 P. B.), following the observations of the Privy Council in Phoolbas Roonwar v. Lalla Jogeskur Sahoy, l Cal. 226 : (3 I. a. 7 (P. C.)). In the Civil Procedure Code though the expression ‘date of decree’ has not been expressly defined, Order 20, Rule 7 makes it absolutely clear that the only date which a decree shall bear is the date on which the judgment is pronounced and not the date on which the decree is drawn up and signed. If the provisions of the
said Order 20 are carefully scrutinised it will be noticed that though while dealing with judgments Rule 3 expressly says that the judgment shall be dated and signed at the time of pronouncing it, Rule 7 while requiring the Judge to sign the decree does not say that he shall give the date also on that day. The marginal note or heading to Rule 7 is ‘date of decree.’ It was argued on the basis of the Privy Council decision reported in Thakurain Balraj Kunwar v. Jagatpal Singh, 31 I. A. 132 : (26 ALL. 393 P.C.). that the marginal note cannot be referred to for the purpose of construing the Act. It is well established that the marginal note or heading cannot be used “to give a different effect to clear words in the section where there cannot be any doubt as to the ordinary meaning of the words” R. v. Surrey (North Eastern Area Assessment
Committee), 1947-2 ALL E. B. 376: (177 L. T. 441). But as pointed out by Collins M. R. in Fletchet v. Birlcenhead Corporation, 1907-1 K-B. 205 at
p. 213: (76 L. J. K. B. 218).
“the headmgi of a statute oan be usefully referred to to determine the sense of any doubtful expression in a section ranged under that heading. ”
Similarly in Bushell v. Hammond, (1904) 73 L. J. K. B. 1005: (1904-2 K. B. 563) it was observed”:
“the aide-note although it forms no part of the section is of iome assistance inasmuch as it shows the. drift of the section.”
This principle has been followed in India in several decisions. For instance, in Emperor v. Esmail, 67 Bom. 537: (A. I. R. (20) 1938 Bom. 417; 31 or. L. J. 1239 F,B.) the marginal note to Section 361, Penal Code was used in construing 3. 363, Penal Code. Similarly, in Secy. of State v. Bombay Munieipality (No. 1), 69 Bom. 681: (A. I. R. (22) 1935 Bom. 847) the marginal note to Section 81, Government of India Act, 1915, was looked into in order to see the general trend of that section. In Ram Saran v. Bhagwat Prasad, 51 ALL. 411 : (A. I. R. (16) 1929 ALL. 53 F. b.) there is an exhaustive discussion about the importance to be attached to marginal notes inserted in a statute with the assent and the authority of the Legislature and with respect I would agree with the reasonings given there. In India though marginal notes do not form part of the statute they are inserted by the draftsman at the time of drafting the bill and are seen and sometimes commented upon by the Legilature during the passage of the Bill. As pointed out in the aforesaid Allahabad decision marginal notes in India may be said to be assented to impliedly by the Legislature and their significance cannot be wholly ignored. The expression ‘date of decree” occurs in the marginal note to Order 30, Rule 7, and the same expression occurs in several other provisions of the Civil P. C. already cited. It is obvious that the expression should be given the same meaning throughout the Code and consequently it will be idle to contend that the date of decree is understood in the Civil P. C., in any sense other than that expressly provided for the same in Rule 7. Mr. Rao’s argument that Rule 7, should be taken as merely descriptive of the contents of a decree is not convincing because if the Legislature thought of merely specifyicg the contents of a decree that would have surely included the provisions of Rule 7, in Rule 6, itself which expressly deals with the contents of a decree. Where was the necessity for making a separate rule on the subject and giving the marginal heading ‘date of decree?’ Again if, as conceded by Mr. Rao, Rule 7, fixes the date of the judgment as the relevant date from which the substantive rights between the decree-holder and the judgment-debtor are regulated there seems to be no reason why the right of the decree-holder to execute his decree should also be not determined by the same date. If the decree-holder’s substantive rights accrue from the date of the judgment by virtue of Order 20, Rule 7, disabilities arising out of the non-exercise of his rights must also count from that date.
7. There are two observations of the Privy Council regarding the construction of the expression ‘date of decree’ which I think are conclusive as to what those words mean in the Civil P. C. In The Owners of ‘Brenhilda v. B. I. S. N. Co., 7 Cal. 547; (8 I. A, 169 P. C.) their Lordships pointed out
“their Lordships therefore think that the date of the decree did not mean the date on which the decree was reduced to writing and signed by the Court but the date on which the High Court delivered their judgment and expressed what the decree” was.”
Mr. Rao tried to distinguish this case on the ground that it referred to the construction of Rule 35 of the Rules and Regulations made during the time of King William IV and th&t at that time there was no provision for annexing a copy of the decree to the petition of appeal as required by the Civil P. C. But this distinguishing feature does not in any way detract from the force of the observations made by their Lordships as regards the date of the decree. In another Privy Council decision reported in Mungniram v. Gursahai, 16 I. A. 195 at p. 200 : (17 Cal. 347 P. C.) their Lordships observed :
“When a man obtains an order for a certificate he does in substance comply with the terms of this Act in the same way as when a person has the judgment of the Court that he shall have a decree in his salt it may be said that he then obtains his decree. The decree when it is drawn up afterwards relates back to that time.”
The Oweners of Brenhilda v. B. I. S. N. Co., 7 Cal. 647: (8 I. A. 159 P. C.) has been subsequently followed in Harendra Lal v. Sm. Hari
Dasi, 14 C. W. N. 420; (5 I. C. 814) in construing the expression ‘date of decree’ occurring in Order 45, Rule 7, Civil P. C. In a Full Bench decision of the Patna High Court reported in Lachmeswar Prasad v. Girdhari Lal, A I. R. (26) 1939 pat, 667: (19 Pat. 123 F.B.) the same construction has been applied while interpreting that rule. Relying therefore on the marginal note to Rule 7 of Order 20, the complete absence of any statutory provision requiring the Judge to put in the decree the date on which he signs the same and the decisions mentioned above I have no hesitation in holding that throughout the Civil P. C., the expression ‘date of decree’ means the date on which the judgment was pronounced.
8. Is there any justification for putting a different construction on the said expression in the Limitation act which is in pari materia with the Civil P. C.? I see none. Both the statutes were repealed and re-enacted several times after making substantial amendments and the two statutes now in force were passed in the year 1908 within a few months of each other. The expression ‘date of decree’ remained the same from the time of the earliest Act till the present day. Prior to 1908, the said expression ‘date of decree’ had been given the special meaning indicated by Order 20, Rule 7, by High Courts while construing the relevant provisions of the Limitation Act. See Golam Gaffar v. Goljan Bibi, 25 Cal, 109, Bani Madhub v. Matungini Dassi, 13 Cal. 104 F. b., and Afzul Hossain v. Mt. Umda, Bibi, 1 C. W. N. 93. As pointed ont in Maxwell’s Interpretation of Statutes, (9th Edition at page 27), if a Consolidation Act re-enacts, with a like context a word or phrase in one of the Acts consolidated which has received judicial interpretation, that interpretation will generally be applicable to the same word or phrase in the Consolidation Act. The Limitation Act of 1908 is partly a consolidating statute, as indicated in its preamble and the Legislature may be presumed to be fully aware of thia construction given by the High Courts and yet it did not think it necessary to make any change in the expression ‘date of decree’. If the Legislature wanted to make it clear that in Article 182 the relevant date was the date of the signing of the decree it would not have adopted the same expression as that used in the old Limitation Act of 1877 (XV [15] of 1877).
9. It will be instructive to compare the provisions of the proviso to Section 23, Registration Act, 1908, which says that a decree shall not be accepted for registration unless it is presented within four months from the date on which it was made. Column 2 of Article 182, prescribes a special period of limitation for the execution of decrees which are registered. The Indian Limitation Act came into force on 7th August 1908 and the Indian Registration Act came into force on 18th December 1908. The Legislature took special care to refer to the date on which a decree was made in the proviso to Section 23, Registration Act whereas in the Limitation Act they merely-used the expression ‘date of decree’ though that expression had been given a special meaning by several previous judicial decision. The reasonable inference is that the Legislature intended that the interpretation put by the previous judicial decision should continue in the Limitation Act, whereas in the Registration Act, the relevant date should be the date on which the decree was actually drawn up and signed. It is true that the Registration Act is not in pari materia with the Limitation Act and the provisions of former Act should not ordinarily be used in construing the Limitation Act. But the proviso to Section 23, Registration Act stands on a different footing inasmuch as it refers to the special period of limitation for registering decrees and it has direct connection with Article 182, Limitation Act which provides a special period of limitation for execution of decrees which are registered. Considering the short interval between the passing of the two Acts, it is not likely that the Legislature would have used different expression in the two Acts without a definite purpose.
10. It is also significant that though by virtue of Section 12, read with Section 6, Limitation Act any hardship that may be caused by the delay in the drawing up of a decree can, so far as appeals, reviews and certain class of applications are concerned be remedied, no special provision has been made for relaxing the stringent provisions of Article 182, relating to execution of decrees. Perhaps the reason for this may be that the period of limitation for appeals and reviews etc., is very brief being a matter of few months only and any delay in the drawing up of a decree may cause genuine hardship in several instances. But, for execution of decrees, the period of limitation is three years and it will be fantastic to say that a Court would delay for such a length of time in drawing up a decree after writing out the judgment. A party must know on the date of the judgment itself that limitation for the execution of the decree would run from that date. If he notices any unconscionable delay on the part of the Court in drawing up the decree, he can always remind the Court to expedite its action.
11. The principle that the decree-holder should not be penalised for the delay caused by the action of the Court on which Mr. Rao has relied docs not help him very much. The maxim actus curiae neminem gravabit seems to be the principle underlying Order 20, Rule 7, Civil P. C., itself. Once a judgment is pronounced the drawing up of the decree is a matter within the powers of the Court and the parties should not be prejudiced so far as their rights are concerned by any delay caused by the Court. Therefore, the Legislature made express provision directing that the decree shall bear the date of the judgment so that the rights of the parties may be regulated from that date. If the rights and Ha, bilities of the decree-holder and judgment-debtor are thus to be regulated from the date of the judgment there is no reason as to why the judgment-debtor should lose a valuable right which accrues to him due to the noa-executability of a decree caused by the lapse of time from the date of the judgment. In other words why should the delay of the Court in drawing up the decree favour the decree-holder by extending the law of limitation and prejudice the rights of the judgment-debtor? It will be illogical to say that though the decree-holder’s substantive rights should commence from the date of the judgment because the delay on the part of the Court should not prejudice his rights, he should at the same iime be relieved of any disability arising from his omission to exercise his rights from that date.
12. The argument that Order 20, Rule 7 Civil P. C. is liable to amendment by a High Court whereas the Limitation Act can be amended only by the Legislature and that consequently an expression which is subject to amendment by another authority should not be given the same interpretation in the Limitation Act does not appeal to me. The plain fact is that Order 30, Rule 7, even now remains as it was when the Legislature enacted it as part of the Civil P. C., in 1908. Similarly Article 1SS, Limitation Act also remains as before (except for some minor amendments) from 1908. The words of a statute should generally be understood in the sense which they bore when it was passed. (Maxwell’s Interpretation of Statutes, Edn. 9, p. 62). Merely because another authority has been conferred power by the very Legislature to amend Order 20, Rule 7 it cannot be said that the expressions occurring in Schedule I to the Civil Procedure Code should not be used for construing the same expressions occurring in the Limitation Act.
13. Next I take up Rameshwar Singh v. Homeskwar Singh, A.I R. (8) 1921 P. C. 31 : (48 I. A. 17) which seems to be the main strength of the petitioner’s case. The material facts of that case are as follows : A decree was passed against one Ekradeshwar on 27th July 1906 for a certain aum but he was not made personally liable for the same. The decree further declared that the decretal amount was to be realised by the sale of the property belonging to one Janeswar and left in Ekradeshwar’s possession. The decree
did not make any portion of the property of Jflneshwar which was in the possession of any one else liable for the decree. But since April 1906, the property of Jaueshwar wag in the possession of his widow and Ekradeshwar obtained possession of that property only in December 1914 after separate litigation with the widow of Janeshwar. The Privy Council held that the decree of 27th July 1906 became executable only in December 1914 when Ebradeshwar obtained possession of Janeshwar’s property and that limitation should run from that date and not from the date of the decree. Their Lordships observed :
“They 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 conder. It capable in the circumstances of being enforced.”
From the aforesaid observation, it was argued that the date of decree for the purpose of Article 182 should be the date on which the decree became capable of execution and that as no application for execution of a decree can be filed unless a copy of the decree is along with it (see Rules. 143 and 143 of the Madras Civil Rules of Practice and Circular Orders) the decree was incapable of execution till the date of the signing of the decree. The aforesaid Privy Council decision is clearly distinguishable. The contents of the decree of 1906 referred to therein indicate that the decree was in the nature of a conditional decree in the sense that it referred to properties which at the time of passing the decree were not in the possession of the judgment-debtor. The decree was made applicable only to those properties when they came into judgment-debtor’s possession. Therefore, there was full justification for construing the expression ‘date of decree” to be the date on which the decree became capable of execution. But no such consideration can arise in the present case nor can that decision be taken as authority for the wide proposition that the date of decree in Article 182 must mean the date on which the decree was signed in all cases.
14. Under Rule 142 of the Civil Rules of Practice and Circular Orders of Madras High Court which were in force at Aska in 1941, every petition for execution was required to be accompanied by a copy of the decree and if there wag no such copy the execution petition was liable to be rejected. oN the basis of these rules it was urged that the date on which the decree-holder was in a position to comply with the rules should be the relevant date for the purpose of limitation and that so long as the Court had not drawn up the decree the decree-holder was not in a position to apply for execution and limitation should not therefore run against him.
Equitable considerations are however out oft place in construing the Indian Limitation Act and however hard the case may be, one cannot depart from the well established construction or the expression ‘date of decree’ as made by almost all the High Courts. Mr. Rao drew oar attention to an old case reported in Madan Mohan v. Nobin Kishore, 3 C. L. J. 291, where while construing Section 90, old T. P. Act (corresponding to Order 84, Rule 6, Civil P. C.), it was held that for the purpose of limitation the date on which the decree was formally drawn up under that section should count and not the date on which the order was passed for recovery of the decretal amount from the judgment-debtor. This case however is clearly distinguishable. Seotion 90 of the old T. P. Act does not refer to the pronouncing of judgment first and the drawing up of a decree later. It only refers to the passing of a decree under some circumstances. On the facts of that case, the learned Judges held that the first order would not amount to the passing of ft decree as required by the said section. That dictsiou cannot therefore be given a wider significance than was warranted by the facts of that case.
15. Lastly comes the question as to whether the petitioner can reasonably urge that he was misled by the fact in the decrees the Court gave the dates on which the decrees were actually signed (21.6-41). This point has been fully discussed by the learned Muusif and he has correctly distinguished this case from Kali Prasad v. Mt. Bibi Aziz Fatma, A.i.r. (35) 1938 Pat. 149 : (174 I. C. 397) and Nalini Kanta v. Kamaraddi,
A. I. R. (20) 1933 Cal. 239 : (141 I. 0. 114). I
entirely agree with his reasonings. There can be no question of the decree-holder being in any way misled because the Court gave the date of the judgment in every case as the date of the decree and the mere fact that it gave some more information than was required by Order 20, Rule 7, cannot be held to justify the inference that the petitioner was in any way misled.
16. I would therefore agree with the lower Court and hold that the execution petitions are barred by limitation.
17. jagannadhadas J.–I agree with my learned brother J. Narasimham that the phrase ‘date of decree’ in Article 182, Clause (1), Limitation Act should be construed with reference to Order 20, Rule 7 as the date when the judgment is pronounced and not the date when the decree following on the judgment is actually drawn up and signed and that accordingly these revisions should be dismissed with costs.
18. The basis of the argument for the petitioner is the assumption that there is in fact no decree in existence until the decree is actually
drawn up and signed and that the date of the decree in its normal sense mast mean the date when the decree is authenticated by the Judge putting his signature on it. The definition of the word “decree” as constrasted with the word “judgment” in Section 2, Civil P. C. as also the provisions of Order 20, Rules 3, 4, 5, 6, and 7 are relied on in this connection. It is pointed out that a judgment is merely a statement of the grounds of the decree, while the decree is the “formal” expression of the adjudication and it is said that inasmuch as the form of the decree has to comply with the requirements of Order 20, Rules 6 and 7, there is in fact no decree in existence until that form is complied with by the actual drafting of the decree and the signature of the Judge is put thereon. It is also pointed out that under Rules 7, 8 and 9 of chap. 6, Part I of the General Rules and Circular Orders of the Patna High Court, which continue to be in force in this Court, notice has to be given after the draft of the decree is prepared and it is after the Judge satisfies himself that the draft is correct and is in accordance with the judgment, that he has to sign it and that the Circular Orders specifically provide for his putting down the date when he signs. It is further argued that the legislature would not have contemplated the date of the judgment itself as the starting point of limitation for execution when the very decree that is to be the foundation of the execution had not come into existence and is not available to the decree-holder for his reference to ascertain his exact liability. It is also pointed out that the Madras Civil Rules of Practice which govern these particular execution applications now under consideration require a copy of the decree to be filed along with the execution application. It is also said, on the authority of Rameshwar Singh v. Homeshwar Singh, A. I. R (8) 1921 P. C. 31 : (48 I. A. 17), that in order to make the provisions of the Indian Limitation Act applicable, the decree sought to be enforced, must have been in such a form as to render it capable in the circumstances, of being enforced.
19. Having given my best consideration to the above arguments, it appears to me that the whole of the above line of reasoning is totally inadmissible. The decision of the question turns upon what is the esacb aerise of the phrase “date of decree” as used in Article 182, Limitation Act, If the meaning is reasonably clear on a consideration of the Act itself and the allied provisions, it is not permissible to introduce other considerations on any theory of beneficient cons. traction. There can be no doubt that at least so far as the Civil Procedure Code is concerned, the phrase “date of the decree” wherever it occurs in the Code must mean only the date of the
judgment as provided in Order 20, Rule 7. It would follow that the rights and liabilities of the decree-holder, in so far as they depend upon the express provisions of the Civil Procedure Code, spring up the very moment that the judgment is pronounced. Under Section 33, Civil P. C., after a case has been heard, the Court shall pronounce the judgment and on such judgment, the decree shall follow. There is no indication of the contemplation of any time-lag between the judgment and the decree. The pronouncement of the judgment and the passing of the decree are accordingly simultaneous. Under Order 20, Rule 11, Sub-rule (1), if the decree is one foe payment of money, a Court may, on the oral application of the decree-holder, at the time of the passing of the decree, order immediate execution thereof by the arrest of the judgment-debtor, if he is within the precincts of the Court. It may be noticed that this may be done even prior to the preparation of the warrant, let alone the preparation of the decree, and the mention of the arrest, if the judgment-debtor is within the precincts of the Court, makes it reasonably clear that this has reference to the time when the judgment itself is pronounced when it may be normally expected that the judgment-debtor was likely to be present. Under Section 34 the interest payable on any money that will be payable under a decree has reference to the date of the decree. Under Order 20, Rule 12, Sub-rule (3) the decree-holder’s right to obtain mesne profits in a decree for possession cannot enure beyond the expiration of three years from the date of the decree. It would be surprising if the right of the decree-holder to the interest under Section 34 is to be denied to him until the decree is actually drafted or his right to obtain mesne profits can be prolonged beyond three years after the judgment, if he can manage to get the drafting of the decree delayed for some months or years. There can, therefore, be no doubt that in so far as any rights and liabilities of the decree-holder or the judgment-debtor are specifically provided for in the Civil Procedure Code itself, the date of the decree is the date of the pronouncement of the judgment and this is what, in terms, is provided for by Order 20, RULE 7. I am unable to understand the argument that the only effect of Order 20, Rule 7 is to provide that in the matter of substantive rights and liabilities, the decree is to relate back to the date of the judgment, as for instance in Order 20, Rule 12-and Section 34, but not as regards the right to apply for execution which is concerned with procedure.
19-a. The Civil Procedure Code itself furnishes an answer to this contention. A reference to Section 48, Civil P. C., to my mini is definitely clinching. That section provides for an absolute prohibition against an execution being ordered
on the application for execution presented after the expiration of 12 years from the date of the decree sought to be executed. It cannot be disputed that the pharse “date of the decree” in this section muat be construed with reference to Order 20, Rule 7. This clearly shows that according to the scheme of the Civil Procedure Code, not merely the so-called substantive rights and liabilities of the decree-holder, but also his right to apply foe execution itself is one that is dependent on the date of the decree as prescribed in the Code itaelf. It must, therefore, follow that this is so under the Limitation Act also. It is well established that the starting poinf of limitation under column 3 of any article of the Limitation Act is the point of time when the right to apply accrues. To construe the worda “the date of the decree” in the Limitation Act ag indicating something different from what the various provisions of the Civil Procedure Code clearly imply and indicate and in particular what Section 48, Civil P. C., specifies would be to introduce disharmony in the working of the provisions of the Civil Procedure Code and the provisions of the Limitation Act relating to execution. As pointed out by my learned brother Narasimham J., the Code of Civil Procedure and the Limitation Act are Acts, in pari materia and are, therefore, to be construed together. It appears to me also that the argument based upon the assumption that since a decree is by definition a “formal expression of adjudication,” there is no decree at all until the decree is actually drafted, is not correct. Under Sections 96 and 97, Civil P. C., an appeal lies from a decree passed by a Court. Can it possibly be contended that the right of the unsuccessful party to take up an appeal to the appellate Court arises not at the moment when the decree is passed, that is when the judgment is delivered, but only after the decree is formally drafted? Thia question has arisen in various cases and it has been held in Kamini Debi v. Promotho Nath, A. I. R. (2) 1915 Cal. 272: (27 I. C. 317) and Manohar Lal v. Nanakchand, A. I. R. (6) 1919 Lab. 53 : (66 P. R. 1919) that the mere omission on the part of the Court to embody the effect of its decision in a decree in the prescribed form does not negative the right of the party affected to prefer an appeal. In Bhup Indar v. Bijai Bahadur. 23 ALL. 152 : (27 I. a. 209 P. C.), the Privy Council while noticing the definition of the word “decree” given in the Civil Procedure Code as a formal expression of adjudiction, held that a mere decision of the Court determining the extent of the period for which the judgment-debtor was liable to pay mesne profits to the decree-holder was a decree within the meaning of the Code. The Privy Council point out that
” it (the order) is equally final in its effect and as such equally open to appeal. ”
It is clear that the stress has been (laid ?) on the fact that the order was a decision which conclusively determined the rights of parties and not on its being embodied in a formal decree. In Mungniram v. Gursahai, 16 r. A. 195 : (17 Oal. 347 P. C.) the Privy Council treated a mere order for the issue of a certificate under Act XL [40] of 1858 as in itself a certificate though no formal certificate bad been issued and in so holding, applied the analogy of a person obtaining a judgment in Court being treated as one having obtained the decree ‘itself though the decree itself is drawn up afterwards. The Privy Council case in The Owemr’s of ‘ Brenkilda ‘ v. B. S. S. N., Co., 7 Cal. 547 at p. 551 : (8 I. A. 159 P. C.) is very instructive on this matter, and it says as follows r “Their Lordabips, therefore, think that the date of the decree did not mean the date on which the decree was reduced to writing and signed by the Court, but the date on which the High Court delivered their judgment and expressed what the decree was.” This clearly indicates that in their Lordships” view, on the delivery or pronouncement of the judgment the decree itself is expressed. In fact, it is usually the practice that the Court after pronouncing its judgment in terms also states what the exact effect of that judgment is on the rights of the patties and gives specific directions as to the relief that it grants. In this sense the mandatory provision of Section 33, Civil P. C., that on the pronouncement of the judgment, a decree shall follow is as a matter of fact, carried out in everyday practice by immediate and simultaneous pronouncement of the relief granted. What usually is known as a “judgment” appears technically to be a combination of the judgment and the decree as understood in the definition of the words “judgment” and “decree” in Section 2. It appears to me, therefore, that the phrase “formal expression of adjudication ” in the definition of the word ” decree ” in s, 2, Civil P. C., has no reference to the formalities as prescribed in Order 20, but is in contradistinction to a judgment which is a mere statement of grounds of the decision-and that it has reference cob necessarily to the formal drafting but to the formal pronouncement of the effect of adjudication by way of granting of relief. It appears to me, therefore, that argument that has been built up by emphasising that the decree is a formal expression is unwarranted, I think the argument is due to a confusion between a formal expression as opposed to a mere statement of the grounds of the decision and a document drafted, in accordance with the precribed form. The Code does not define the decree as being the latter.
20. As regards the support for the petitioner’s argument sought to be derived from the dictum of the Privy Council in Rameshwarsingk v. Homeahwarsingh, A. I. R. (8) 1921 P. C. .31 : (48 I. A. 17), I am satisfied that it cannot be invoked so as to import into the consideration of the
words “date of the decree” something different from what a comprehensive consideration of the provisions of the Civil P. C., and the Limitation Act leads to, As pointed oat by my learned brother Narasimham J., the decree in Rameshwarsingh v. Homeshwarsingh, A I. R. (8) 1921 p, 0. 31 : (48 I. A. 17), is in the nature of a conditional decree depending on the facts
of that particular case. What their Lordships say is that in order to apply the provisions of the Limitation Act, the decree sought to be enforced must have been in such a form as to render it capable in the circumstances, of being enforced. Be it observed that they do not say that the decree must be reduced to a form so as to enable the decree-holder to file an application for execution. It appears to me reasonable to construe this dictum of the Privy Council as having reference to the form on which the enforcement of the rights of the decree-holder depends, that is, to its being capable of execution as a matter of substantive rights and not to its being embodied in a form which enables the decree-holder to apply for execution, If it is appreciated that the deoree holder has in a normal case the right to enforce the decree, the moment the judgment is delivered and the decree is passed, though he may not have the facility to file an execution application until a decree is drafted, the distinction above pointed out becomes obvious. I do not, therefore, think it dght to construe the dictum of the Privy Council in Rameshwar Singh v. Homeshwar Singh, A. I. R. (8) 1921 P. C. 31 : (48 I. A. 17), as having a bearing on this discussion and as entitling the Court to import what may be called a liberal construction into the phrase “date of the decree” contrary to what Order 20 Rule 7, provides.
21. As has been pointed out by my learned brother Narasimham, J., there has been a unanimity of opinion in ail the decided cases up-to-date on this question when the same has in specific form been presented to it for decision. It is unnecessary to notice all those cases or any of the cases relating to partition decrees, decrees for accounts and so forth in which somewhat apparently different views have been expressed and which depend on different considerations.
22. In a matter of this kind, which is substantially one of procedure, I would not be prepared, if only on the ground of stars decisis, to countenance a different view being taken, I would, however, point out that the principle
that, for all purposes, the date of the decree is to be taken as the date of the judgment, is one
that is based on well-established general principles which have been constantly applied and acted upon in English Courts and which have been adopted in Indian decisions in consonance with the requirements of sound judicial administration. It is the principle which is expressed by the phrase “nuno pro tune” (now for then). That principle means that a judgment is entered or a document is enrolled so as to have some legal force and effect as if it had been entered or enrolled at some earlier day on which it should properly have been dona. Where a proceeding has been delayed by the action of the Court or on like grounds, the Court may allow it to be dated as if it had taken place or been delivered at an earlier date. This practice of the Courts in England was based on the maxim “actus curiae neminem gravabit” i. e., an act of the Court shall prejudice no man. In considering the question of prejudice, the principle is that neither party should suffer and not, only one of the parties. This principle of “nunc pro tune” has been acted upon in English Courts from the very earliest times as will be found from the leading case of Guniber v. Wane, in 1 Sm. L. C. 376 at pp. 394-395 and has been followed by the Privy Council in Surendro v. Durga Sundurag, 19 Cal. 613 : (19 I, A. 108 P. C.). The principle and the application thereof have been noticed by the Calcutta High Court in Hara Krishna, v. Ram Gopal, 14 Cal. W. n. 759 : (6 I. C. 170), which gives a reference to various other cases and which shows that this principle has been universally accepted in the British as well as in the Indian system of administration of justice. The principle has come up before English Courts for application normally in two sets of circumstances, namely, where a judgment has been delivered and there has been some delay in formally entering up the judgment as provided in Order 41 of English Rules of Practice and also in a case where a party to the litigation has died after the conclusion of the hearing of the case and before the judgment is delivered. In such cases the principle of “nunc pro tune” hag been applied in order to obviate, to the persons concerned, the hardship that may enure on account of the inevitable delay of the Court or its officers. But the actual application of this principle in the English Courts is dependent to some extent on the discretion of the Court. But in India, it has been statutorily adopted is the Civil Procedure Code in Order 20, Rule 7 and Order 22, E. 6. It appears to me therefore that it is not permissible to introduce considerations of supposed equitable construction ignoring the more fundamental and important principle of “nunc pro tune” that has been statutorily drafted into the Code by Order 20, Rule 7. After all,
as the Privy Council has pointed out in Nagendra Nath v. Suresh Chandra, A. I. R. (19) 1932 P. C. 165 : (60 Cal 1), there is no scope for application of considerations of equity in the construction of the statutory provisions of the Limitation Act.
23. I am also unable to appreciate the argu. ment of hardship with reference to a matter of this kind where a substantially large period by way of three years has been provided under the Limitation Act. The possibility of the delay in drafting a decree for such a substantial period as to affect seriously the eights of the decree-holder is so remote, that the greater livelihood of mischief that might arise on a different construction must override. After all, it will be observed that difficulty in this case, if what is suggested in the course of the argument is true, namely, that the decree-holder was misled by the date put under the decree by the Judge, is one that has arisen under the Circular Rules and Orders which cannot override the statutory provisions of the Civil Procedure Code and the Limitation Act. If this provision in the Circular Orders is likely to lead to any difficulty the remedy liea in amending it. I may also note that there may be cases in which, after a judgment is delivered, some substantial questions which require further judicial consideration and determination before the decree can be formally drafted, may remain and in all such cases it would be desirable that the judgment itself should be treated as part, pronounced and adjourned to a further date for final pronouncement and it may be desirable to make some rules providing for such a practice. But where what re. mains to be done between the judgment and drafting of a decree is merely what may be called clerical work, which does not require any judicial consideration, but only a checking up of the correctness of the clerical work, there can be no question of any delay caused by any mistake of the Court. The delay is inherent in the situation and cannot therefore be counted and taken notiee of.
24. In the result I agree that the revisions should be dismissed with costs.
25. I may add that I would not have felt called upon to deal with this matter at this length after the pronouncement of my learned brother with whom I agree, but for the respect which I owe to the opinion expressed by my Lord the Chief Justice in the course of the arguments in favour of the opposite view and on account of the doubt he has felt about the correctness of the pre-existing settled view.
26. We must express our indebtedness on behalf of the Special Bench to M/S B. N. Sinha, B. K. Pal, S. K. Ray, and B.M. Patnaik who
appeared as amicus curies and helped the case in discussion of somewhat a difficult subject.
Ray, C.J.
27. I have had the benefit of reading the concurrent views of my learned brothers Narasimham and Das JJ. They had my views on the subject fully expressed during the hearing, the referring order apart. I regret to have to say that I could not pursuade myself to accept their opinions. The question involved is one of deceptive simplicity. It is not free from doubt. The contentions of my learned brothers carry a great measure of conviction at the first instance, but on close examination, they do not appear to be sound, I have, therefore, to record my dissentient views. It may be that, in the ultimate end, I may be found to be wrong. I do not exclude that from the arena of possibilities, but I feel, in all earnestness, the view I take is the right one. At any rate, I think it worthwhile to raise a controversy. The matter, in the precise form and pointedness, has never arisen in any of the decisions of the Judicial Committee, referred to by my learned brothers nor has any such been cited at the bar. At any rate, I have not come across any decision of the Privy Council in which it has been said that, for the purpose of computing the period of limitation for execution of a decree, its assumed date which is an antedate and not its actual date would be the starting point.
28. I am quite aware of, and alive to the note of caution that has been struck from time in judicial pronouncements, that in the construction of a Statute of limitation, general words are to have a general operation, and the Statute is not to be subjected to judicial exceptions arising from a supposed equity in other words, the Courts cannot engraft on the Statute exceptions or qualifications not clearly expressed in the Statute itself or clearly established by judicial authority. On the other hand, it is a familiar principle that a Statute of limitation should not be applied to cases not clearly within its provisions; it should not be extended by construction. As a general rule, provision of a statute of limitations will nob be given a retroactive effect, unless it clearly appears that the Legislature so intended. Both substantive and remedial rights come under the operation of the general presumption against retroactive action or construction of a Statute. To me it appears, to hold or find that the time prescribed by the Statute shall have to be computed as starting with the date of pronouncement of a judgment and before preparation and promulgation of the decree under execution would amount to giving it retroactive operation. Law of limitation should not act retroactively on a
cause of action as soon as ii arises on which it is impossible to launch an action.
29. It is fundamental, in application of law of limitations, that where two constructions are equally applicable, the one favouring the longer duration should govern the case.
30. A wide distinction exists between pure Statutes of limitation and special statutory limitations qualifying a given right. In the latter instance, time is made an essence of the right, limitation being its inherent part so that there is no right of action whatever independent of the limitation. A lapse of statutory period extinguishes the right altogether. To such limitations, the rules of law governing pure Statutes of limitations, applicable to all clauses of actions, have no application. They are nob subject to the disabilities or excuses through which the effect of ordinary Statute of limitation may be avoided. Whether a particular limitation of time is to be regarded as a qualification of a particular right must be determined from the language employed and from the connexion in which it is used.
31. The time limit prescribed in Rule 48, Civil P. C., and that prescribed for limitations of actions generally as in the Limitation Act belong to the two different categories indicated above–one goes to the root of the Court’s jucisdictional executability of the decree and is a matter of essence of the right so much so that the time, if and when lapsed, extinguishes the right under the decree and the other has no reference to the earned rights and can be waived or avoided by various disabilities and excuses.
32. Under Article 182 (4), Limitation Act, an amendment, however unsubstantial, gives rise to a fresh terminus a quo to the time limit, Magan Lal v. Sitaram, 16 Pat. 290; (A. I. R. (24) 1937 Pat. 316); Durga Prasad v. Kadar Nath, A. I. R. (16) 1929 Cal. 656: (125 I. C. 292) ; Manokar v. Sudhi Priya Roy, 65 C. L. J. 455 while it is wholly ineffective in arresting the run of time provided for in Section 48, Civil P. C., Fakirchand v. Kundan Singh, 54 ALL. 622; (A.I.R. (19) 1932 ALL, 351), Rameshwar v. Raghunandan, 16 pat. 463: (A. i. R. (25) 1938 Pat. 57) Administrator General, Madras v. Radha Krishna, A. I. R. (23) 1936 Mad. 434: (161 I. C. 969.)
33. Article 182 (4) allows an application for exection to be made within three years from the date when the decree is amended even though the amendment is made more than three years after the so-called date of the decree.
34. In interpreting a statute of Limitation, the basis structure, the nature and object of and the very policy behind such laws, in their relation to the affairs of organised societies or states, have to be kept in view. As distinguished from
prescription, laws of limitation are not available as matters of substantive rights, nor ag instrument for conferment of such rights or titles. They are available only as defences. The entire fabric of the law relating to limitation of actions is based on the negligence or laches of the suitor (plaintiff or decree-holder, as the case may be). The state adopts and enacts laws limiting time for actions as a matter of policy for repose of individuals and avoidance of occasions for fraudulent or stale claims springing up at great distances of time and surprising the parties or their representatives when all the evidences are lost or the facts have become obscure from the lapse of time or the defective memory or death or removal of witnesses. The benefit of repose of individuals are derived and derivable from the laches or negligence of a party who has to set the machinery of law in motion. The operation of a particular provision must correlate to a condition either favouring or disfavouring the basic factor of laches or negligence of a party concerned. The reasonableness of construction must be tested with close reference and in cor. relation to such basic factor and not in isolation from them,
35. Based on this rule of construction, it was held in the case of Webber v. Webber, 146 Mich. (Michigan) 31, 34; 109 N. Y. (New York) 50, that the time of the making and delivery of an antedated note payable “on demand after date” determines the time of the accrual of a right of action thereon, and fixes the period from which limitations begin to run.
36. The case of Collins v. Driscoll, 69 Cal. (California) 550; 11 P. (pacific Beporter) 244, is in point holding that the date of delivery of an antedated note, payable one day after date, determines the time at which the time begins to run.
37. Closely connected with the same basic factor is the rule that “until the party can resort to a remedy the statute of limitations does not begin to run”. The decision of the Judicial Committee of the Privy Council in 49 Indian Appeal (48 Ind. App, 17 ; A. I. R. (8) 1921 P. C. 31 ?) is based upon this rule but not upon any condition attached, in ths decree, to its enforoeability. The liability adjudicated therein was not conditional on the happening of a particular event. It was limited in extent. The ratio of this decision was that so long as no effective remedy was available to the suitor, the time does not begin to run. It is wrong to say that the decree was conditional. It is correct to say that the remedy was conditional in the sense that it was not available except on the eventuation of a certain contingency. The position in its application to the facts of the case, can be formulated
in a different way, to wit, where the right to resort to a particular remedy depends upon the prior ascertainment of facts and where such facts as those must; be ascertained in a judicial proceeding, the running of the statute of limitation begins not until the ascertainment of such facts by such proceeding. Decisions bearing testimony to the correctness of the principles expounded above are myriads in Law Reports arising out of cases in which statute provides that the time begins to run from the date the right to sue or apply, as the case may be, accrues or arises. In the present case, a specific date, namely, date of decree, has been expressly prescribed as terminus a quo of the time. That makes no difference in application of the principle. The question that arises is which is the date to begin with. It bears a close analogy to the case of delivery of an antedated note already referred to above. In the decree, the facts or, in other words, the particular reliefs granted on which the cause of action for execution is based, are stated as ascertained. The remedy of execution can be resorted to only on auoh an ascertainment. In consideration thereof, if the words predicating the terminus a quo are capable of two interpretations, the one that conforms to the principles stated above has to be adopted.
38. The knowledge of facts giving rise to a cause of action to sue or apply is fundamentally assumed, in the very scheme of the Act, as the fulfilment of the basic requirement that makes time run against a party. Section 18 of the Act provides for suspension of time as against one who has been kept out of such knowledge. Normally, knowledge of a thing has to be assumed against one who could know it by his own vigilance. Where the very source of knowledge is, non est, no lack of vigilance can be attributed to him (a party concerned). The reason of the rule of vigilance ceases when ascertainment of facts is not under his control but depends upon some act to be performed by another, and in such an event the time does not begin to run until the performance of the Act. A remedy cannot be said to be available to a party unless the remedy could be pursued successfully. It can be argued that a petition for execution, however defective, could be put in, at any time, after judgment and before decree. True, but would it be an application in accordance with law ? Does such an obligation lie on the party ? Is he expected to grope in the dark ?
39. Compelled by considerations above, I am sanguinely urged to hold that the date of the decree in this case would be the date when it was completely made and promulgated and not the date with which it was antedated. Such
antedating is for the purpose of stating from what date the rigbt to the reliefs granted should take effect. We are here concerned with remedy and nob the rigbt. I owe a duty to my learned brothers and to the learned counsel for the opposite party to aay why I do not concur with them. This will involve me in dealing categorically with their reasons vis-a-vis that of mine.
40. Brother Das thinks that, in law, decree has no separate existence from judgment. A written document incorporating the statements of respective cases of the parties, their claims and the adjudication thereof consummated in the recording of the specific reliefs granted embodied in a precise form is not essential, Thia is true to a very limited extent that decree has no independent existence in the sense that it must conform closely and strictly to the judgment. But despite that it has a separate entity. It has to be prepared in a prescribed form. After it is prepared and promulgated under the hand and seal of the Court, the judgment is pushed to the background. The law insists on its preparation. Appeal lies from it and against it. In an appeal, accompaniment of a judgment with the memorandum may ba dispensed with but riot the decree which is compulsory–vide Order 41, Rule 1. If the ordering portion of a judgment takes the place of a decree, no party is entitled to an addition of the time occupied for a copy thereof in computation of the time available for filing an appeal. There would be no meaning in providing, in Article 182 (4), Limitation Act, for a fresh terminus a quo on amendment of a decree. In accord with this view, any amendment, however substantial, should be merely formal, as all amendments must necessarily and ever be in order to bring it into conformity with the judgment; then the amended decree too is already there in the judgment as its integral part. Why then should the Legislature provide for a fresh terminus a quo to spring up along of an amendment? That a decree is a written document can hardly be disputed. In order that execution can be levied thereon, it is urged, preparation of a decree is not essential. Reliance is placed upon Order 21, Rule 11 (1). The language of the Sub-rule does not lend support to this contention. It does not say in so many words that the order of immediate execution by arrest of the judgment-debtor can be made as soon as the judgment is pronounced. The wordauaed are “at the time of the pasaing of the decree”. To answer the controversy by reference to this is begging the question. It dispenses with preparation of the warrant of arrest and not of decree. If the Legislature meant that it would say so clearly and expressly. It dispenses with written application of execution and preparation of warrant. I am
not sure if arrest order oan be made before decree is prepared. Probably, in practice, they do it, but I reserve my opinion as to its legality. Even so, it does not mean that decree-holder is bound to take this remedy. It is like attachment before judgment. It has a very limited scope. It does not testify to a decree being unnecessary for launching an execution. An ex-ception proves the rule and does not annihilate it. It accentuates the force of the rule by laying down that in one case and one case only the rule can be excepted from. I concedeand have never doubted that whenever the question of accrual of right arises, the date is the judgment date, bat in relation to availability of remedy it is repugnant to the subject as well as context to synchronise it with the signing of judgment and not the document called ‘decree’. The highest at which the provision of Order 20, Rule 7 be placed is that it defines the phrase “date of decree” for all purposes wheresoever it occurs. It is convention at of legislative penmanship to prefix the definition clauses with the words “in the absence of repugnancy to the subject or contest”. Such conventional expressions are not mere superfluities. They indicate that on appropriate occasions the rigor and the exactitude of the definition oan be departed from. Definitions are devices to widen or limit the plain grammatical meaning of expressions and to assign an artificial meaning. The Legislature at the same time provides that where adherence to such meaning will lead to repugnancy it oan be departel from. Date of a formal document shall not mean its antedate or post date. Whenever a document bears a date either or later than its completion, it is said to have been antedated or postdated. To say, on account of legal provision, that it shall be deemed to bear a particular date, independently of its actual date, is quite another thing. The date of a document is not the date it bears however erroneously. It is no where provided that the only date that a decree should bear is the date of judgment. Even in the absence of any command of law, the Court putting its hand and seal on a decree, should put date of his doing so; in usual course of business he shall have to do it and a party having had to rely on it is entitled to adduce evidence about it in case it is omitted from the decree.
41. There are certain well established rules of construction of statutes which may be stated here. It is said to be the duty of the Judge to make such construction of a statute as shall suppress the mischief and advance the remedy. Even where the usual meaning of the language falls short of the whole object of the Legislature, a more extended meaning may bs attributed to ihe words, if they are fairly susceptible of it.
Before adopting any proposed construction of a passage susceptible of more than one meaning, it is important to consider the effects or consequences which would result from it, for they often point to the real meaning of the words. There are certain objects which the Legislature is presumed not to intend, and a construction which would lead to any of them is therefore to be avoided. It is not infrequently necessary, therefore, to limit the effect of the words contained in an enactment (especially general words), and sometimes to depart not only from their primary and literal meaning, but also from the rules of grammatical construction in oases where it seems highly improbable that the words in their wide primary or grammatical meaning actually express the real intention of the Legislature. It is regarded as more reasonable to hold that the Legislature expressed its intention in a slovenly manner, than that a meaning should be given to them which could not have been intended. It is in the last degree impossible that the Legislature would overthrow fundamental principles, infringe right or depart from the general system of law, without expressing its intention with irresistible clearness.
42. It is said that the Code of Civil Procedure, Limitation Act and the Registration Act are Statutes in pari malaria. This is an assumption without proof. The objects behind the Acts are not the same nor the subjects dealt with. Besides, the point that confronts us is whether we oan apply the law that governs accrual of rights for the purpose of limiting the field of operation of law regulating remedies. Civil Procedure Code is not an an mixed law of procedure. Some parts thereof are devoted to definition of right. It is said that the rule that the decree should synchronise with judgment flows from the maxim actus curiias neminem gravabit. This maxim is founded upon justice and good sense and affords a safe and certain guide for the administration of law. If the decree has been prepared and completed later than when the judgment was pronounced, it is due to Court’s delay; it is an act of Court. An act of the Court shall prejudice no man. This result is beat achieved by effectuating the rights from the date of judgment and availing the remedies foe their enforcement from the date when the preparation of the decree is completed.
43. I can conceive of no circumstance in which the judgment-debtor should in any way be prejudiced. In the owe of Miles v. Williams, (1846) 9 Q. B. 47 : (16 L. J. Q. B. 56), the issues of fact were tried in August 1843, a verdict was found for the plaintiff, and a rule for a new trial was discharged in Trinity Term, 1844 ; in the same term the demurrers were set down in
the special paper, but did not come on for argument until May, 1845, when judgment was given upon them for the plaintiff. The plaintiff, having died in March 1845, the Court made absolute a rule to enter judgment as of Trinity Term, 1844. Can it be urged in sucb a case that the time for limitation will run from the date on which the judgment was entered ? I find nothing in the application of this maxim that deters us from adopting rule of interpreting the words in their natural meaning which advances the remedy and prejudices, none. I have failed to understand how does the rule proposed by me prejudices the judgment-debtor. What does it matter to him if the time for limitation purpose starts to run earlier or later. It does not enhance his burden. The rule “that one party has acquired a valuable right” is taken into account only when the Court is called upon to exercise hie discretionary power to condone or excuse delay in order to grant an extension of time to his adversary.
44. Two decisions of the Privy Oouncil have been relied on by the opposite party–one as a direct case and the other as laying down the principle applied on a question which is in part materia with the present one. These two cases have gone far in influencing the opinions of my learned brothers. First one is that of Owners of Brenhilda v. B. I. S. N. Co., 7 Cal, 547 : (8 I. a. 159 P. c.). Sir Barnes Peacock who delivered the judgment of the Privy Council himself distinguished the case before him from the one that falls under the corresponding rule of the Civil Procedure Code. His observation will speak for itself :
“It has been urged that the decree was not drawn up in writing and signed by the Court until some consitarable time afterwards, and that the parties could not appeal without annexing a copy of their decree to their petition of appeal. But the rule of annex ng a copy of the decree to the petition of appeal refer to appeals which are preferred under the Code of Civil Procedure, Act VIII [8] of 1859; it does Dot apply to appeals preferred or asserted under the 35th section of the rules of William the Fourth. The words “after the date of decree,” according to theit Lordshipa’ view of the rule, do not mean alter the date when the decree is drawn up in writing, bat after the date on which the decree or sentence is pronounaed by the Vioe Admiralty or Admiralty Court, as the case may be. The words which are conntanly used in Acts which refer to decrees in the Admiralty Court are ‘ the pronouncing of the sentence or decree.” Their Lordships, therefore, thick that the date of the decree did not mean the date on which the decree was reduced to writing and signed by the Court, but the dale on which the High Court delivered their judgment and expressed what the decree was. If the parties intended to appeal, they ought, in accordance with the rule, to have asserted their appeal within fifteen days from the date of the decree, by declaring in the Court that they intended to appeal ; and that they did not do. It is important in Admiralty proceedings that notice of appeal should be given within a short period. When a ship is sued, it is usually arrested, and unless it is released upon bail, it is detained by an officer of the Court. It is, therefore, important, if a party intends to appeal from the decision of the Admiralty Court, that notice should be given within a certain limited time, and that time with regard to Vice-Admiralty cases, is fifteen days from the date of pronouncing the decree.”
The construction was favoured as one in accord with the subject and context of the Act in which the phrase “date of the decree” occurred. If this view is fitted into a case under the Civil Procedure Code, will it not disturb the settled view of law that until the decree is drawn up time for appeal does not begin to run ?
45. The observation of their Lordships which is most pertinent to the controversy before us reads, at p. 200 of 16 I. A. 195 : (17 Cal. 347) : Mungmram Marwari v. Gursahai Hossein : “When a man obtains an order for a certificate he does in substance comply with the terms of this Act, in the same way as when a person has the judgment of the Court that he shall have a decree in his suit it may be aaid that he then obtains his decree. The decree, when it is drawn up afterwards, relates back to that time ; and so would the certificate in this case relate back; and the terms of the Act that, he shall have obtained such certificate are complied with.” This decision does not at all conflict with my view. It deals with the question “when does the right to the relief granted accrue”, or, in other words, “when does the right to execute accrue”. We are concerned with the question “whether ‘the remedy’ that is going to be barred for lapse of time was available all the time during the prescribed period of three years”. If it was not available to the party for no fault of his but due to delay of Court, why should he be barred thereby making it all the more warranted the interpretation that advances his remedy without prejudice to the opponent.
46. It is said, the Legislature did not think it fit to provide, as in Sections 12 and 5 in their application to appeals, reviews and certain classes of applications, for redeeming the hardship likely to arise from the delay in drawing up of decrees in execution cases. The supposed answer to that is said to be that as the time was to run from the date of judgment being the date of decree any intermediate delay on the part of the authorities did not count. I consider it falaaious. This omission from the Act is which all available escapes from snob hardships have been adjusted against, strengthens rather than detracts from the construction that 1 should like to adopt. As and if the time begins to run from the date of drawing up and signing of the decree, no case of hardship flowing from Court’s delay falls to be provided against.
47. It is further said that it is but just that if the benefits of adjudication of respective claims to the decree-holder accrue from the date of pronouncement of judgment, any disabilities due to his failure to act too should arise simultaneously. As an abstract proposition, it is true in cases where liabilities or disabilities are inherent in or correlate to the said rights. The right to execute the dteree by an application which must conform to certain requirements ordained by the law of procedure is not such. If it were so, the right to execute shall never be lost so long as the right under the decree is extant.
48. The view taken in Rameshwar Singh v. Homeshwar Singh, A. I R. (8) 1921 P. C. 31 ; (48 I. a. 17) is in full harmony with the view I take. The decree, under execution, in that case, contained nothing to make it a conditional one. Had that been so, the High Court would not take the view it did. Lack of its executable form, till something eventuated, did not arise from any condition incorporated or embodied in it but was due to nonavailability of the remedy due to extraneous circumstances to which the decree-holder was neither a party nor a privy. The decision establishes the principle that when for any reason beyond his control the remedy by execution is not available to a decree-holder, the time limited should not run against him and that such a principle is deducibie from the language and the scheme of the Act. According to their Lordships, the date of decree is not the data when decree is passed or drawn and signed, but when it is executable both in form and substance. I lay emphasis on the words, in their Lordships’ judgment, “executable form”.
49. I am not keen to discuss if the decision of Brajabala Debi v. Gurudas, 3 C. L. J. 293 : (33 Cal. 487) is distinguishable. I did not form the opinion. I have done on its basis. It came in by the way during the hearing. In fact, Mr. Pal cited it. But I should say that they took a reasonable view. The word ‘dejree’ appeared in Section 90, T. P. Act as it appeared in Article 182. As in a proceeding under Section 90, T. P Act so in a suit for recovery of money, a judgment or order precedes a decree which merely follows. The Section 90 proceeding is in continuation of a suit and as such does not differ from it.
50. As for the decision reported in Nagendra Nath v. Suresh Chandra, A. I. R. (19) 1932 P. C. 166 : (60 Cal. 1), the mode of reasoning employed by their Lordships of the Judicial Committee in construing Article 182, Limitation Act does lend a great support to that of mine. In construing wbat is an appeal, their Lordsbips assigned the strict grammatical meaning to it and not the technical meaning that it should bear under the Civil Procedure Code. In fact, as against that part of the judgment and decree of the lower Court and as against those parties, there was no appeal but there was a petition challenging a part of the decree asking the appellate Court to revise that part. He (the decree -holder) was free
to execute the decree except against the respondents impleaded. As against the appellants before their Lordebips, the decision so far as it affected them had become final not only because the decree-holder did not appeal but also those appellants too did not prefer any appeal. But grammatically speaking, there was an appeal.
51. As to prejudice, if any, against judgment-debtor, their Lordships have emphatically said
“Nor in such a case ae this is, the judgment-debtor is prejudiced. He ma; indeed obtain the been of delay.”
Independently of this observation. I have already said that the rule of construction adopted by me does not prejudice the judgment-debtor. I am not led by any consideration of hardship to the decree-holder. I consider he would not be charged with omission when it is impossible for him to act.
52. I think I owe a word of explanation for running away from the chain of precedents afforded by a long line of authorities on the particular point. It is always to be borne in mind, in administering the law, that laws are to be made for the society and not the society for the laws, and even some gifted minds are not free from this delusion. A distinguished English Judge whilst pitying the hard lot of a man who was ruined because his pleader had supposed his remedy to be trespass instead of case, is said to have added :
“No doubt it is bard on him. The declaration ought to have been in ease. If it bad been done, he would have won, but if the distinction between trespass and case is removed, law, as a science, is gone–gone.”
53. In my opinion, a Judge should not be troubled with the little things regardless of the wider matters of law. He ought to be strong enough to brush away the technicalities but not to lose himself in legal cobwebs which no doubt sometimes get him hopelessly entangled. I could not understand the series of cases in which it has been held that the interval between pronoun cement of a judgment and drawing up and signing of a decree is added to the period of limitation allowed for an appeal on the theory that it comes within the purview of Section 12, Limitation Act being a period occupied for the purpose of obtaining copits. This reasoning could apply to a case where an application for copy of a decree synchronises with the pronounce-ment of judgment. It does not apply to a case in which the application for copy is filed after the decree is drawn up, signed and promulgated. This argument seems to be more ox less a action employed to meet a hard case.
54. I have already said a few words regarding the principle involved in entry of judgments nunc pro tuna in the English Practice and Pro-cedute. I know how heavily the adoption of that
principle has influenced the enactment of Order 20, Rule 7 and how strongly it has influenced my learned brothers, but it is likely to mislead us unless we follow the procedure relating to it. I find from the annotations In 62nd annual issue of the Annual Practice, 1944, appended to Order 41, Rules 3 and 3A the rules that deal with “entry of judgment” which correspond to preparation of decree under the Civil Procedure Code in India –that “the execution cannot issue till after actual entry of the judgment,” and in the annotation to Order 52, Rules 13 and 14, which deal with entry of orders in proceedings as drawing up
orders
“although it has been held that an older has no effect
until it is drawn up and served (Matcalf v. British
Tea Association, (1882) 46 L. T. 31), in subsequent
cases in the C. D. it was decided that an order dis
missing an action operated from the moment it was
pronounced, and that the fact that it was not drawn
up or served was immaterial (Script Phonography v.
Gregg (1890) 59 L. J. Ch. 406, and see Farden v.
Richter, (1889) 23 Q. B. D. 124 : (58 L, J. Q. B. 244).)
Probably the doctrine of Matcalf v. British Tea Asso
ciation, (1882-46 L. T. 31) would now be only applied
to cases where service is expressly made a condition
precedent to the doing of some act.”
Our practice and rules require that before a decree is finally drawn up and signed and sealed under the hand and seal of the Court, parties should be noticed and their objection, if any, should be considered. I lay strong emphasis upon the consideration “that-execution cannot issue till after actual entry of the judgment” of the English Practice and draw an analogy between it and our drawing up of the decree. In my opinion, no execution should ordinarily be levied until the decree is drawn up. The case on this side of the practice is much stronger than that in England, because there a judgment is ordered to be entered on an application of a party. The party has, therefore, to move the Court in order that the judgment may be entered. The party in India has no obligation to move. It is purely an act of Court. The party should not lose his valuable time, even if it is a day or two, for the delay of the Court.
55. In consideration of what I have said above, I would hold that the execution cases are in time and would allow the civil revision cases.
Jagannadha Das, J.
56. I may add that the judgment prepared by my Lord the Chief Justice has by his kindness and courtesy been circulated to my learned brother and myself. I have anxiously reconsidered the whole matter in the light of the elucidation furnished thereby, I regret very much however that in spite of my great respect to my Lord’s views, I do not feel persuaded that the view taken by me is wrong or that the contrary view propounded is right. My learned brother Narasimham J. has on reconsideration intimated that he adheres to the view already expressed.
57. In the result, the Court’s order in pursuance of the majority view is that the revisions are dismissed without costs.
