{"id":215213,"date":"1999-09-14T00:00:00","date_gmt":"1999-09-13T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/west-bengal-essential-vs-swadesh-agro-farming-and-storage-on-14-september-1999"},"modified":"2017-08-21T07:19:00","modified_gmt":"2017-08-21T01:49:00","slug":"west-bengal-essential-vs-swadesh-agro-farming-and-storage-on-14-september-1999","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/west-bengal-essential-vs-swadesh-agro-farming-and-storage-on-14-september-1999","title":{"rendered":"West Bengal Essential … vs Swadesh Agro Farming And Storage … on 14 September, 1999"},"content":{"rendered":"
Supreme Court of India<\/div>\n
West Bengal Essential … vs Swadesh Agro Farming And Storage … on 14 September, 1999<\/div>\n
Bench: K. Venkataswami, Syed Shah Quadri<\/div>\n
           CASE NO.:\nAppeal (civil)  5005 of 1999\n\nPETITIONER:\nWEST BENGAL ESSENTIAL COMMODITIES SUPPLY CORPORATION\n\nRESPONDENT:\nSWADESH AGRO FARMING AND STORAGE PVT. LTD. AND ANR.\n\nDATE OF JUDGMENT: 14\/09\/1999\n\nBENCH:\nK. VENKATASWAMI & SYED SHAH MOHAMMED QUADRI\n\nJUDGMENT:\n<\/pre>\n
JUDGMENT<\/p>\n
1999 Supp(2) SCR 399<\/p>\n
The Judgment of the Court was delivered by<\/p>\n
SYED SHAH MOHAMMED QUADRI, J. Leave is granted.\n<\/p>\n
The short but a question of some significance which arises for
\nconsideration in this appeal, is whether the period of limitation, under
\nArticle 136 of the Limitation Act, 1963, will start from the date of the
\ndecree or from the date when the decree is actually drawn up and signed by
\nthe judge.\n<\/p>\n
The facts giving rise to the question may be noticed here.\n<\/p>\n
On June 11, 1980, the appellant filed Suit No. 504 of 1980 in the High
\nCourt of Judicature at Calcutta against the respondents for recovery of a
\nsum of Rs. 82, 933.80 with interest. On March 8, 1982, the High Court
\ndecreed the suit ex-parte for the said amount with interest thereon at the
\nrate of 6% per annum. However, the decree was actually drawn up and signed
\nby the learned Judge on August 9, 1983. The appellant filed application,
\nG.A. No. 374 of 1995, for execution of the decree before the High Court on
\nJune 5, 1995. The learned Executing Judge ordered execution of the decree.
\nBut, on appeal by the respondents, the Division Bench of the High Court set
\naside the order of the learned Executing Judge holding that the execution
\npetition was barred by limitation under Article 136 of the Limitation Act
\nand thus allowed the appeal on September 30, 1997. That judgment and order
\nis challenged by special leave, in this appeal.\n<\/p>\n
Mr. Tapas Ray, learned senior counsel appearing for the appellant, has
\nargued that for purposes of Article 136 of the Limitation Act, the starting
\npoint of limitation is not the date of the decree but the date when the
\ndecree becomes enforceable; it was only when the decree was actually drawn
\nup and signed, after a lapse of one year and three and three months of
\ndelivering the judgment, that it became enforceable, and from that date the
\nappellant was entitled to the benefit of full period of limitation; so its
\napplication for execution could not be held to be barred by limitation.
\nAccording to Mr. Ray, for an application under Order XXI Rule 11(2) of the
\nCode of Civil Procedure, a copy of the decree must be available and the
\nperiod of limitation must be reckoned from the date when the Court was in a
\nposition of making a copy of the decree available as it was on that date
\nthe decree became executable. The learned counsel urged that Rule 11(2) of
\nOrder XXI must be read with Rules 6 and 7 of Order XX C.P.C. and so read,
\nfor purposes of execution, the decree would come into existence only when
\nit was actually drawn up and signed and not on the date when the judgment
\nwas pronounced.\n<\/p>\n
Mr. P. Bhaskar Gupta, learned senior counsel for the respondents, has
\nsubmitted that under Rule 6A(2)(b) of Order XX C.P.C, for purposes of
\nexecution of the decree the last portion of the judgment itself will be
\ntreated as a decree, irrespective of the date when the decree is actually
\ndrawn up and signed and that under Rule 7 of Order XX C.P.C. the decree has
\nto bear the date of the judgment; from the date of the judgment till the
\nexpiry of the period of limitation, the decree holder had the opportunity
\nof executing the decree so he cannot have any grievance for late drawing up
\nof the decree and stamping the date of the judgment on it. Learned senior
\ncounsel invited our attention to sub-rule (3) of Rule 11 of Order XXI
\nC.P.C. and contended that the Executing Court might require the applicant
\nseeking execution of the decree under sub-rule (2) to produce a certified
\ncopy of the decree, but the execution petition need not be accompanied by a
\ncertified copy of the decree. Sections 12(2) and 5 of the Limitation Act,
\nsubmitted the learned counsel, did not apply to execution petitions and if
\nthe contention of the appellant were to be accepted then it would amount to
\nrewriting those provisions so as to provide for excluding the time for
\npreparation and signing of the decree; therefore, that contention is liable
\nto be rejected.\n<\/p>\n
On the above contentions, we shall commence the determination of the
\nquestion by first reading Article 136 of the Limitation Act which is as
\nfollows:\n<\/p>\n
“136. For the execution of Twelve years  [When] the decree or order any
\ndecree (other than a becomes enforceable or decree granting a mandatory
\nwhere the decree or any injunction) or order of any
\nsubsequent order directs any Civil Court. payment of money or the delivery
\nof any property to be made at a certain date or at recurring periods when
\ndefault in making the payment or delivery in respect of which execution is
\nsought takes place:\n<\/p>\n
Provided that an application for the enforcement or execution of a decree
\ngranting a perpetual injunction shall not be subject to any period of
\nlimitation.”\n<\/p>\n
From a perusal of the Article, extracted above, it is clear that for
\nexecution of any decree (other than a decree granting a mandatory
\ninjuction) or order of a civil court, a period of 12 years is prescribed;
\nColumn 3 contains two limbs indicating the time from which period of
\nlimitation begins to run, that is, the starting point of limitation; they
\nare: (i) when the decree or order becomes enforceable and (ii) where the
\ndecree or any subsequent order directs any payment of money or the delivery
\nof any property to be made at a certain date or at recurring periods when
\ndefault in making the payment or delivery in respect of which execution is
\nsought, takes place. The proviso says that there shall be no period of
\nlimitation for enforcement or execution of decree granting a perpetual
\ninjuction. We are concerned here with the first of the above-mentioned
\nstarting points, namely, when the decree or an order becomes enforceable. A
\ndecree or order is said to be enforceable when it is executable. For a
\ndecree to be executable, it must be in existence. A decree would be deemed
\nto come into existence immediately on the pronouncement of the judgment.
\nBut it is a fact of which judicial notice may be taken of that drawing up
\nand signing of the decree takes some time after the pronouncement of the
\njudgment; the Code of Civil Procedure itself enjoins that the decree shall
\nbe drawn up expeditiously and in any case within 15 days from the date of
\nthe judgment. If the decree were to bear the date when it is actually drawn
\nup and signed then that date will be incompatible with the date of the
\njudgment. This incongruity is taken care of by Order XX Rule 7 C.P.C.
\nwhich, inter alia, provides that the decree shall bear the date and the day
\non which the judgment was pronounced.\n<\/p>\n
To enable a person who would like to execute the decree before it is
\nactually drawn up, Rule 6A is inserted in the Code by the Amendment Act,
\n1976 (Act 104\/76), which is extracted hereunder:\n<\/p>\n
“6-A. Last paragraph of judgment to indicate in precise terms the reliefs
\ngranted-\n<\/p>\n
(1) The last paragraph of the judgment shall state in precise terms the
\nrelief which has been granted by such judgment.\n<\/p>\n
(2)  Every endeavour shall be made to ensure that the decree is drawn up as
\nexpeditiously as possible, and, in any case, within fifteen days from the
\ndate on which the judgment is pronounced; but where the decree is not drawn
\nup within the time aforesaid, the Court shall, if requested so to do by a
\nparty desirous of appealing against the decree, certify that the decree has
\nnot been drawn up and indicate in the certificate the reasons for the
\ndelay, and thereupon-\n<\/p>\n
(a) an appeal may be preferred against the decree without filing a copy of
\nthe decree and in such a case the last paragraph of the judgment shall, for
\nthe purposes of Rule 1 of Order XLI, be treated as the decree; and<\/p>\n
(b)  so long as the decree is not drawn up, the last paragraph of the
\njudgment shall be deemed to be the decree for the purpose of execution and
\nthe party interested shall be entitled to apply for a copy of that
\nparagraph only without being required to apply for a copy of the whole of
\nthe judgment; but as soon as a decree is drawn up, the last paragraph of
\nthe judgment shall cease to have the effect of a decree for the purpose of
\nexecution or for any other purpose:\n<\/p>\n
Provided that, where an application is made for obtaining a copy of only
\nthe last paragraph of the judgment, such copy shall indicate the name and
\naddress of all the parties to the suit.”\n<\/p>\n
Rule 6A enjoins that the last paragraph of the judgment shall state in
\nprecise terms the relief which has been granted by such judgment. It has
\nfixed the outer time limit of 15 days from the date of the pronouncement of
\nthe judgment within which the decree must be drawn up. In the event of the
\ndecree not so drawn up, clause (a) of sub-rule (2) of Rule 6A enables a
\nparty to make an appeal under Rule I of Order XLI C.P.C. without filing a
\ncopy of the decree appealed against and for that purpose the fast paragraph
\nof the judgment shall be treated as a decree. For the purpose of execution
\nalso, provision is made in clause (b) of the said sub-rule which says that
\nso long as the decree is not drawn up, the last paragraph of the judgment
\nshall be deemed to be a decree. Clause (b) has thus enabled the party
\ninterested in executing the decree before it is drawn up to apply for a
\ncopy of the last paragraph only, without being required to apply for a copy
\nof the whole of the judgment. It further lays down that the last paragraph
\nof the judgment shall cease to have the effect of the decree for purposes
\nof execution or for any other purposes when the decree has been drawn up.\n<\/p>\n
It follows that the decree became enforceable the moment, the judgment is
\ndelivered and merely because there will be delay in drawing up of the
\ndecree, it cannot be said that the decree is not enforceable till it is
\nprepared. This is so because an enforceable decree in one form or the other
\nis available to a decree holder from the date of the judgment till the
\nexpiry of the period of limitation under Article 136 of the Limitation Act.\n<\/p>\n
In Rameshwar Singh v. Homes-war Singh, AIR (1921) PC 31 it was held:\n<\/p>\n
“They (Their Lordships) are of opinion that in order to make the provisions
\nof the Limitation Act apply, the decree sought to be enforced must have
\nbeen in such a form as to render it capable in the circumstances of being
\nendorsed.”\n<\/p>\n
There may, however, be situations in which a decree may not be enforceable
\non the date it is passed. First a case where a decree is not executable
\nuntil the happening of a given contingency, for example, when a decree for
\nrecovery of possession of immoveable property directs that it shall not be
\nexecuted till the standing crop is harvested, in such a case time will not
\nbegin to run until harvesting of the crop and the decree becomes
\nenforceable from that date and not from the date of the judgment\/decree.
\nBut where no extraneous event is to happen on the fulfilment of which alone
\nthe decree can be executed it is not a conditional decree and is capable of
\nexecution from the very date it is passed (Yeshwant Deorao v. Walchand
\nRamchand, AIR<\/a> (1951) SC 16). Secondly, when there is a legislative bar for
\nthe execution of a decree then enforceability will commence when the bar
\nceases. Thirdly, in a suit for partition of immoveable properties after
\npassing of preliminary decree when, in final decree proceedings, an order
\nis passed by the court declaring the rights of the parties in the suit
\nproperties, it is not executable till final decree is engrossed on non-
\njudicial stamp paper supplied by the parties within the time specified by
\nthe Court and the same is signed by the Judge and sealed, It is in this
\ncontext that the observations of this court in Shankar Balwant Lokhande
\n(Dead) by Lrs.v. Chandrakant Shankar Lokhande & Anr., [1995] 3 SCC 413 have
\nto be understood. These observations do not apply to a money decree and ,
\ntherefore, appellant can derive no benefit from them.\n<\/p>\n
In the instant case, the decree is a money decree. The decree became
\nenforceable immediately on the pronouncement of the judgments as thereupon
\na deemed decree came into existence. It cannot, therefore, be said that the
\ndelay in drawing up of the decree renders it unenforceable from the date of
\nthe judgment.\n<\/p>\n
The next contention of Mr. Ray is that due to the court taking more than a
\nyear and three months to draw up and sign the decree, the period of
\nlimitation of 12 years, available to the appellant, is cut short so the
\nstarting point of limitation has to be computed from the date of signing of
\nthe decree to avert hardship and prejudice to him. The submission appears
\nto be attractive, but falls to scrutinizing. The argument is obviously
\nbased on the maxim “actus curiae beminem gravabit” (an act of the court
\nshall prejudice no man). It would apply to relieve a party of the hardship
\nor prejudice caused due to the act of the Court. But to invoke this maxim
\nit is not enough to show that there is delay in drawing up of the decree,
\nit must also be shown that the appellant has suffered some hardship or
\nprejudice due to the delay of the Court. In other words, there must be a
\nnexus between the act of the court complained of and the hardship or
\nprejudice suffered by the party.\n<\/p>\n
In Raj Kumar Dey & Ors. v. Tarapada Day & Ors.<\/a> [1987] 4 SCC 398, the
\nCalcutta High Court had quashed the registration of the award on the ground
\nthat it was presented for registration beyond time. This Court applying,
\ninter alia, the above maxim held that the High Court was in error in
\nquashing the registration of the award. There, during the material period,
\nthe award was in the custody of the Court and the arbitrator, inspite of
\nhis efforts, could not have got it registered; it was presented for
\nregistration the very next day it was returned to the arbitrator.\n<\/p>\n
In Gursharan Singh & Ors. v. New Delhi Municipal Committee & Ors.,<\/a> [1996] 2
\nSCC 459 this Court granted interim directions in favour of the appellants
\nto pay licence fee at the concessional rate. At the time of final disposal,
\nit was found that the appellants were not entitled to the concessional
\nrate. Applying the maxim “actus curiae neminem gravabit”, the respondents
\nwere ordered to be paid the balance amount together with interest.\n<\/p>\n
In these cases, as can be seen, there was nexus between the action of the
\nCourt and the prejudice suffered by the party. But, in the instant case,
\nthere is no nexus between drawing up of the decree after more than a year
\nfrom the date of the judgment and its execution petition getting barred by
\nlimitation. It may be noticed here that the scheme of the Code, having
\ntaken note of the delay in preparation and signing of the decree, provides
\nenough safeguards to the parties to execute the decree from the date of the
\njudgment\/ decree till the expiry of the period of limitation.\n<\/p>\n
The decree-holder could have enforced the money decree immediately on the
\npronouncement of the judgment by making an oral application under sub-rule
\n(I) of Rule 11 of Order XXI C.P.C. For filing an application under sub-rule
\n(2) of Rule 11 C.P.C., a copy of the decree need not be enclosed. What all
\nsub-rule (3) of the said Rule says is that the Court may require the
\napplicant under sub-rule (2) to produce a certified copy of the decree. On
\nbeing required to do so, it could have produced the last portion of the
\njudgment which has the effect of the decree under Rule 6A of Order XX
\nC.P.C. It is not a case where the appellant lost the period of limitation
\nbecause of any act of the Court but it is a case where the appellant failed
\nto apply for execution of the decree for reasons best known to it and how
\nseeks to take advantage of the fact that the Court took time for drawing up
\nand signing the decree. In our view, the delay in drawing up and signing
\nthe decree did not cause any prejudice to him. There is no nexus between
\nthe late drawing up of decree by the Court and the filing of the execution
\npetition by the appellant after the expiry of the limitation.\n<\/p>\n
Under the scheme of the Limitation Act, execution applications, like
\nplaints have to be presented in the Court within the time prescribed by the
\nLimitation Act. A decree holder does not have the benefit of exclusion of
\nthe time taken for obtaining the certified copy of the decree like the
\nappellant who prefers an appeal, much less can he claim to deduct time
\ntaken by the Court in drawing up and signing the decree. In this view of
\nthe matter, the High Courts of Patna and Calcutta in Sri Chandra Mouli Deva
\nv. Kumar Binoya Hand Singh & Ors., AIR (1976) Patna 208 and Sunderlal &
\nSons v. Yagendra Nath Singh & Anr., AIR (1976) Calcutta 471 have correctly
\nlaid down the law; the opinion to the contra expressed by the High Court of
\nCalcutta in Ram Krishna Tarafdar v. Nemai Krishna Tarafdar & Ors. AIR
\n(1974) Calcutta 173 is wrong. Section 5 of the Limitation Act has no
\napplication; Section 12(2) of the Limitation Act is also inapplicable to an
\nexecution petition. If the time is reckoned not from the date of the decree
\nbut from the date when it is prepared, it would amount to doing violence to
\nthe provisions of the Limitation Act as well as of Order XX and order XXI
\nRule 11 C.P.C. which is clearly impermissible.\n<\/p>\n
In the result, we hold that the period of limitation under Article 136 of
\nthe Limitation Act runs from the date of the decree and not from the date
\nwhen the decree is actually drawn up and signed by the Judge. We,
\ntherefore, do not find any illegality in the impugned judgment of the High
\nCourt. The appeal fails and it is accordingly dismissed. No costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India West Bengal Essential … vs Swadesh Agro Farming And Storage … on 14 September, 1999 Bench: K. Venkataswami, Syed Shah Quadri 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. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-215213","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nWest Bengal Essential ... vs Swadesh Agro Farming And Storage ... on 14 September, 1999 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/west-bengal-essential-vs-swadesh-agro-farming-and-storage-on-14-september-1999\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"West Bengal Essential ... vs Swadesh Agro Farming And Storage ... on 14 September, 1999 - 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