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CASE NO.:

Appeal (civil) 7194 2000

PETITIONER:

RATANSINGH

Vs.

RESPONDENT:

VIJAYSINGH AND ORS.

DATE OF JUDGMENT: 11/12/2000

BENCH:

K.T.Thomas, R.P.Sethi

JUDGMENT:

L.....I.........T.......T.......T.......T.......T.......T..J

J U D G M E N T THOMAS, J. Leave granted.

A decree-holder after securing a decree went into

slumber and remained as such for a pretty long period like a

Rip Van Winkle. When he awoke he realised that his decree

became rust corroded and lost its enforceability due to

efflux of a number of years. In his search to find out at

least a straw to cling on he came across an order of the

High Court by which a Second Appeal preferred by his

opposite party was dismissed as time barred. The Execution

Court resuscitated the decree with the help of the said

order, but the District Court in a revision held otherwise.

This appeal by Special Leave is against the order of the

District Court as the High Court shut its door for the

decree-holder when he knocked at it. The High Court pointed

out to him that the revisional powers of the High Court

under Section 115 of the Code of Civil Procedure (for short

the Code) had already been exercised by the District Court

on which such powers were delegated in the State of Madhya

Pradesh.

The decree which the appellant succeeded in obtaining

was one for possession of the suit property. The trial

court passed the decree on 14.12.1970. The respondent filed

the First Appeal against it but it was dismissed on

1.8.1973. The execution petition was filed only on

24.3.1988 which obviously was beyond time fixed by the

Limitation act. Then appellant thought of availing himself

of the benefit of an order passed by the High Court on

31.3.1976 when the High Court rejected a Second Appeal filed

by the respondent against the decree and judgment of the

first appellate court. That order of rejection was passed

only on the ground that the delay in filing the Second

Appeal was not properly explained. As the appellant now

made an endeavour to utilize the said order we may extract

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the material portion of it hereunder:

In the light of the foregoing discussion, it is

apparent that the cause does not appear to be genuine and

even if it is true, it has arisen due to the negligence or

inaction of the appellant and his counsel. A cause which

has arisen due to the negligence or inaction of the

appellant and/or his counsel, cannot be said to be a

sufficient cause. In the result, I find that no sufficient

cause for condonation of delay in the filing of this appeal

has been made out. The application has, therefore, to be

rejected and is accordingly rejected. Consequent to the

rejection of this application, the appeal also stands

dismissed as barred by time. I make no order as to costs.

Though the ending statement in the said order is that

the appeal also stands dismissed, a reading of the order as

a whole makes it clear that the second appeal was not

entertained on merits at all. The High Court considered the

only question whether the second appeal filed by the

judgment debtor could be treated as valid appeal to be heard

on merits. As the High Court found that the appeal was

presented after the expiry of the period of limitation and

since there was no valid explanation for the delay, the

application for condonation of delay was liable to be

dismissed and consequently the second appeal was rejected.

Learned counsel for the appellant contended before us

that dismissal of the second appeal would make the position

different as the time would run from the date of such

dismissal. He adopted a second contention that

interpretation of law of limitation should be such as to

prevent the scuttling of the remedy.

Article 136 of the Schedule to the Limitation Act 1963

provides 12 years for execution of any decree or order of

any civil court (other than a decree granting a mandatory

injunction). The third column in the Article which

indicates the time from which period begins to run, states

that when the decree or order becomes enforceable.

The forerunner of the said Article in the Limitation

Act, 1908, (for short the old Limitation Act) was Article

182. It worded like this: For the execution of a decree

or order of any civil court not provided for by Article 183

or by section 48 of the Code of Civil Procedure, 1908 3

years (or where a certified copy of the decree or order has

been registered 6 years). The time from which the period

would begin to run was shown as (1) the date of the decree

or order, or (2) where there has been an appeal the date of

the final decree or order of the appellate court, or the

withdrawal of the appeal. (There are some other items also

in the third column of the Article but they are not relevant

for the purpose of this case). Section 48 of the old CPC

prescribed a period of 12 years before the expiry of which a

fresh application could be made for execution. It must be

noted that the present Limitation Act has amended Section 48

of the old CPC. The position under Article 182 of the old

Limitation Act was quite different from its corresponding

Article 136 of the present Limitation Act. Now period of

execution of a decree starts running from the date when it

becomes enforceable. In the Objects and Reasons for

introducing the bill for altering the parameters of Article

182 following has been stated, inter alia, thus:

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Existing Article 182 has been a fruitful source of

litigation and therefore the proposed Art.135 (now Art.136)

in lieu thereof, provides that the maximum period of

limitation for the execution of a decree or order of any

civil court shall be 12 years from the date when the decree

or order became enforceable (which is usually the date of

the decree or order) or, where the decree or subsequent

order directs any payment of money or delivery of any

property to be made at a certain date or at recurring

periods, from the date of the default in making the payment

or delivery in respect of which the applicant seeks to

execute the decree or order. There is no reason why a

decree should be kept alive for more than 12 years; Section

48 of the Civil Procedure Code, 1908, provides that a decree

ceases to be enforceable after 12 years.

When is a decree becoming enforceable? Normally a

decree or order becomes enforceable from its date. But

cases are not unknown when the decree becomes enforceable on

some future date or on the happening of certain specified

events. The expression enforceable has been used to cover

such decrees or orders also which become enforceable

subsequently.

Filing of an appeal would not affect the

enforceability of the decree, unless the appellate court

stays its operation. But if the appeal results in a decree

that would supersede the decree passed by the lower court

and it is the appellate court decree which becomes

enforceable. When the appellate order does not amount to a

decree there would be no supersession and hence the lower

court decree continues to be enforceable.

A decree is defined in Section 2(2) of the CPC as

under: Decree means the formal expression of an

adjudication which, so far as regards the Court expressing

it, conclusively determines the rights of the parties with

regard to all or any of the matters in controversy in the

suit and may be either preliminary or final. It shall be

deemed to include the rejection of a plaint and the

determination of any question within Sec. 144, but shall

not include- (a) any adjudication from which an appeal lies

as an appeal from an order, or (b) any order of dismissal

for default.

Explanation.- A decree is preliminary when further

proceedings have to be taken before the suit can be

completely disposed of. It is final when such adjudication

completely disposes of the suit. It may be partly

preliminary and partly final."

In order that decision of a court should become a

decree there must be an adjudication in a suit and such

adjudication must have determined the rights of the parties

with regard to all or any of the matters in controversy in

the suit and such determination must be of a conclusive

nature. If those parameters are to be applied then

rejection of application for condonation of delay will not

amount to a decree. Consequently, dismissal of an appeal as

time barred is also not a decree. We are aware that some

decisions of the High Courts have taken the view that even

rejecting an appeal on the ground that it was presented out

of time is a decree within the meaning of the said

definition. We are also aware of the contrary decisions

rendered by High Courts on the same point. Dealing with

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some of those decisions a Full Bench of the Calcutta High

Court [S.P. Mitra, CJ, Sabyasachi Mukherjee, J (as he then

was) and S.K. Datta, J] has held in Mamuda Khateen and ors.

vs. Beniyan Bibi and ors. (AIR 1976 Calcutta 415) that if

the application under Section 5 of the Limitation Act was

rejected the resultant order cannot be decree and the order

rejecting the memorandum of appeal is merely an incidental

order. The reasoning of the Full Bench was that when an

appeal is barred by limitation the appeal cannot be admitted

at all until the application under section 5 of the

Limitation Act is allowed and until then the appeal

petition, even if filed, will remain in limbo. If the

application is dismissed the appeal petition becomes otiose.

The order rejecting the memorandum of appeal in such

circumstances is merely an incidental order. We have no

doubt that the decisions rendered by the High Courts holding

the contrary view do not lay down the correct principle of

law.

In such a situation the mere fact that the second

appeal was dismissed as a corollary to the dismissal of

application for condonation of delay has no effect on the

decree passed by the first appellate court.

Learned counsel cited the decision of a two Judge

Bench of Calcutta High Court in Shyama Pada Choudhury vs.

Saha Choudhury & Co. & ors. (AIR 1976 Calcutta 122) as the

Bench repelled the contention that the time would start

running from the date of the decree of the lower court when

the appellate court did not interfere with the lower court

decree. That position was adopted in the background where

the appellate court affirmed the decree of the lower court

though with a slight modification regarding the costs

portion. In such a situation it was rightly held that the

appellate court decree became enforceable and hence the time

would start running from the date of that decree.

Learned counsel reminded us of the observation made by

this Court in Anandilal & anr. vs. Ram Narain and ors.

(AIR 1984 SC 1383) that there is no justification for

placing a rigid construction on the provisions of the

Limitation Act. But we must remind ourselves of the other

profile that in construing statutes of limitation,

considerations of hardships are out of place. What is

needed is a liberal and broad based construction and not a

rigid or narrow interpretation of the provisions of the

Limitation Act.

The observations of the Privy Council contained in

Nagendra Nath Dey and anr. vs. Suresh Chandra Dey and ors.

(AIR 1932 PC 165) cited by the learned counsel do not help

in the present context as it related to the scope and

interpretation of Article 182 of the old Limitation Act.

The serious departure made by the Parliament from the said

article to the present one cannot be lost sight of while

considering the decisions rendered under the former article.

So the end result is this: The decree became

enforceable on 1.8.1973 when the appellate court passed the

decree which superseded the decree of the trial court. As

no decree was passed by the High Court in the second appeal

the decree of the first appellate court remained unaffected

and the enforceability once commenced remained undisturbed

for a period of 12 years therefrom. The execution process

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initiated by the appellant long after the expiry of 12 years

from 1.8.1973 is thus irretrievably barred. Hence no

interference is called for. The appeal is accordingly

dismissed.