TMI Blog2001 (8) TMI 1384X X X X Extracts X X X X X X X X Extracts X X X X ..... ions */ table.MsoNormalTable {mso-style-name:"Table Normal"; mso-tstyle-rowband-size:0; mso-tstyle-colband-size:0; mso-style-noshow:yes; mso-style-priority:99; mso-style-parent:""; mso-padding-alt:0in 5.4pt 0in 5.4pt; mso-para-margin-top:0in; mso-para-margin-right:0in; mso-para-margin-bottom:10.0pt; mso-para-margin-left:0in; line-height:115%; mso-pagination:widow-orphan; font-size:11.0pt; font-family:"Calibri","sans-serif"; mso-ascii-font-family:Calibri; mso-ascii-theme-font:minor-latin; mso-hansi-font-family:Calibri; mso-hansi-theme-font:minor-latin;} <![endif]--> A.P. MISRA UMESH C. BANERJEE, JJ. JUDGMENT BANERJEE. J. Availability of the plea of limitation in the matter of execution of decree has been the key issue in this appeal. The word 'execution' stands derived from the Latin ex sequi, meaning, to follow out, follow to the end, or perform, and equivalent to the French executor , so that, when used in their proper sense, all three convey the meaning of carrying out some act or course of conduct to its completion (vide vol. 33- Corpus Juris Scundum). Lord Denning in Re Overseas Aviation Engineering (G.B) Ltd. : (L.R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nting a mandatory injunction or order of any civil court. As regards the time from which the period of twelve years ought to commence, the statute has been rather specific in recording that the period would commence from the date of the decree or order when the same becomes enforceable. We need not go into the other situations as envisaged in the statute for the present purpose, save what is noticed above. To put it shortly, it therefore, appears that a twelve year period certain has been the legislative choice in the matter of execution of a decree. Be it noted that corresponding provisions in the Act of 1908 were in Articles 182 and 183 and as regards the statute of 1871 and 1877, the corresponding provisions were contained in Articles 167, 168, 169, and 179, 180 respectively. Significantly, Article 182 of the Limitation Act of 1908 provided a period of three years for the execution of decree. Be it clarified that since the reference to the 1908 Act would be merely academic, we refrain ourselves from recording the details pertaining to Article 182 save what is noted hereinbefore. It is in this context, however, the Report of the Law Commission on the Act of 1963 assumes some impo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tition was passed on 8.6.1969 and a final decree thereon was passed on 20.11.1970. The suit being a suit for partition, the parties were under an obligation to furnish the stamp paper for drafting of the final decree and it is on 28.2.1972, the District Court. Nagapattinam in the erstwhile State of Madras (presently Chennai issued notice to the parties to furnish stamp papers and granting time till 17.3.1972. The records depict that the decree-holder, in fact, did not furnish any stamp paper by reason where for, no decree was drafted or finalised The factual score further records that the original decree-holder died on 17.1.1977 and it is on 26.7.1983 that an application was filed by the legal representatives of the decree- holder to implead themselves as additional plaintiffs and on 23.2.1984, the same was ordered and the legal representatives of the original plaintiff were impleaded on 8.3.1984 and after incorporation of the names of the legal heirs in the suit register, an execution application was presented before the District Court on 21.5.1984. To have the factual score complete on this count, be it noted that in the mear while a Civil Revision Petition was filed before th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... As applied to process, the term implies execution and embraces all the legal means of collecting a judgment, including proceedings supplemental to execution. The past tense or past participle enforced has been said to have the same primary meaning as compelled . The language used by the legislature in Article 136 if read in its proper perspective to wit: when the decree or order becomes enforceable must have seen to clear up any confusion that might have arisen by reason of the user of the expression 'the date of the decree or order which was used in the earlier Act. The intention of the legislature stands clearly exposed by the language used there n viz., to permit twelve year certain period from the date of the decree or order. It is in this context that a decision of the Calcutta High Court in the cast: of Biswapati Dev v. Kennsington Stores and Ors., AIR (1972) Calcutta P2) wherein the learned Single Judge in no uncertain terms expressed his opinion that there cannot be any ambiguity in the language used in the third column and the words used therein to wit : 'when the decree or order becomes enforceable' should be read in their literal sense. 'We do fe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icle 136 of the Act of 1963 prescribes as noticed above, a twelve years period certain and what is relevant for Article 136 is, as to when the decree became enforceable and not when the decree became executable. The decision of the Calcutta High Court in Biswapati's case (supra) has dealt with the issue very succinctly and laid down that the word 'enforceable' should be read in its literal sense. In the contextual facts, the final decree upon acceptance of the report of the Commissioner was passed on 20.11.1970, while it is true that notice to furnish stamp paper was issued on 28.2.1972 and the time granted was up to 17.3.1972 but that by itself will not take it out of the purview of Article 136 as regards the enforceability of the decree. Furnishing of stamped paper was an act entirely within the domain and control of the appellant and any delay in the matter of furnishing of the same cannot possibly be said to be putting a stop to the period of limitation being run-no one can take advantage of his own wrong : As a matter of fact, in the contextual facts no stamp paper was filed until 26.3.1984-Does that mean and imply that the period of limitation as prescribed under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icke, (3 K. J. 342 at 352) stated : ..the legislature has in this, as in every civilized country that has ever existed, thought fit to prescribe certain limitations of time, after which persons may suppose themselves to be in peaceful possession of their property and capable of transmitting the estates of which they are in possession, without any apprehension of the title being impugned by litigation in respect of transactions which occurred at a distant period, when evidence in support of their own title may be most difficult to obtain. Recently this Court in W. B. Essential Commodities Supply Corporation v. Swadesh Agro Farming and Storage Pvt Ltd and Anr., [1999] 8 SCC 3 I 5 had the occasion to consider the question of limitation under Article 136 of the Limitation Act of 1963 and upon consideration of the decision in the case of Yeshwant Deorao, (supra) held that under the scheme of the Limitation Act, execution applications like plaints have to be presented in court within the time prescribed by the Limitation Act. A decree-holder, this court went on to record does not have the benefit of exclusion of the time taken for obtaining even the certified copy of the decre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cree. Till then, there is no executable decree as envisaged in Order 20, rule 18 (2), attracting residuary Article 182 of the old Limitation Act Be it noticed that Lokhande's decision (supra) was decided against the judgment of the High Court recording a finding that limitation for executing a final decree in a suit for partition starts on the date on which the final decree is passed and not from any subsequent date on which the parties supply the non-judicial stamp for engrossing the final decree and when the court engrosses the final decree on The stamp paper and signs it - this view of the High Court was negatived and this Court came to a contra conclusion as noticed hereinbefore. The W. B. Essential Commodities Supply Corpn.'s decision (supra) has been rather cautious in recording certain situations in which a decree may not be enforceable on the date it is passed (emphasis supplied). It is thus not a pronouncement of law as such but an exception recorded in certain situations, the words 'may not be' as emphasised are rather significant. The word 'May' in common acceptation mean and imply-'a possibility' depicting thereby availability of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vil court a period of twelve years where the decree or order becomes enforceable or where the decree or any subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurrent periods, when default in making the payment or delivery in respect of which execution takes place : Provided that an application for the enforcement or execution of a decree granting a perpetual injunction shall not be subject to any period of limitation. The period of twelve years prescribed by Section 48 is retained under Article 136 and is now the only period of limitation. It is therefore no longer necessary to keep the execution alive by successive applicants within three years for complying with the original Article 182. Significantly, the contextual facts itself in Lokhande's case (supra) has prompted this Court to pass the order as it has (noticed above) and as would appear from the recording in the order, to wit : Therefore, executing court cannot receive the preliminary decree unless final decree is passed as envisaged under Order 20 Rule 18(2). In that view of the matter, reliance on the decision of Lokhande's case (su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and exceptional cases, if it is satisfied that the decision involved a manifest slip or error. In previous cases the judges of this court have always refrained from defining this exceptional category and I have no intention of departing from that approach save to echo the words of Lord Greene M.R. in Young's case, p.729, and Sir Raymond Evershed M.R. in Morelle's case, p. 406, and to say they will be of the rarest occurrence. In my judgment, the effect of allowing this appeal will produce no injustice to the plaintiff, for the Rent Act 1977 provided him and his advisers with ample opportunity to protect his interests by the simple process of inspecting the public register of rents before letting the flat to the defendant. A fresh application for registration or a fair rent could then have been made enabling that fair rent to be recoverable from the commencement of the defandant's tenancy. For my part, I am satisfied that this court erred in Kent v. Millmead Properties Ltd., 44 p C.R. 353 and that, following the observations of Lord Donaldson of Lymington M.R. in Rickards' case, this court is justified in declining to follow Kent's case. As a matter o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urnam Kaur, [1989] 1 SCC 101, this Court in Paragraph 11 of the report observed, 11. Pronouncements of law, which are not part of the ratio decidendi are classed as obiter dicta and are not authoritative. With all respect to learned Judge who passed the order in Jamna Das case (Writ Petition Nos. 981-82 of 1984) and to the learned Judge who agreed with him, we cannot concede that this Court is bound to follow it. It was delivered without argument, without reference to the relevant provisions of the Act conferring express power on the Municipal Corporation to direct removal of encroachments from any public place like payments or public streets, and without any citation of authority. Accordingly, we do not propose to uphold the decision of the High Court because, it seems to us that it is wrong in principle and cannot be justified by the terms of the relevant provisions. A decision should be treated as given per incuriam when it is given in ignorance of the terms of a statute or of a rule having the force of a statute. So far as the order shows, no argument was addressed to the court on the question whether or not any direction could properly be made compelling the Municipal Corpora ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial Commodities supply Corpn., (supra) be of any assistance since there was no expression of law but a mere expression of a possibility only, as such at best be termed to be an expression of opinion incidently. The latter decision thus also does not render any assistance to the submission of Mr. Mani rather lends credence to the observations of this Court as noticed hereinbefore. Incidentlly, the Calcutta High Court in one of its very old decision in the case of Kishori Mohan Pal v. Pravash Chandra Mondal and Ors., AIR (1924) Calcutta 351 while interpreting Article 182 under the Limitation Act of 1908 has seen rather categorical in recording that the date of the decree under the Article is the day on which the judgment is pronounced and limitation begins to run from that day although no formal decree can be drawn up in a partition suit until paper bearing a proper stamp under Article 45 of the Stamp Act is supplied to the Court. Richardson, J. with his usual felicity of expression stated as below : In this Court the learned Vakil for the respondents has said all that could be said for his clients. He has in particular called our attention to the fact that, although the decre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view recorded earlier by different High Courts cannot be termed to be good law any longer. The decision in Lokhande's case (supra) cannot but be said to be on the special facts situation and is thus in any event clearly distinguishable. Be it noted that the legislature cannot be sub-servant to any personal whim or caprice. In any event, furnishing of engrossed stamp paper for the drawing up of the decree cannot but-be ascribed to be a ministerial act, which cannot possibly put under suspension a legislative mandate. Since no conditions are attached to the decree and the same has been passed declaring the shares of the parties finally, the Court is not required to deal with the matter any further - what has to be done - has been done. The test thus should be - Has the court left out something for being adjudicated at a later point of time or is the decree contingent upon the happening of an event -i.e. to say the Court by its own order postpones the enforceability of the order - In the event of there being no postponement by a specific order of Court, there being a suspension of the decree being unenforceable would not arise. As a matter of fact, the very definition of dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s thus, it has been contended a legislative bar under Section 35 of the Indian Stamp Act for enforceability of partition decree. Mr. Mani contended that enforcement includes the whole process of getting an award as well as execution since execution otherwise means due performance of all formalities necessary to give validity to a document. We are however unable to record our concurrence therewith. Prescription of a twelve year certain period cannot possibly be obliterated by an enactment wholly unconnected therewith. Legislative mandate as sanctioned under Article 136 cannot be kept in abeyance unless the self same legislation makes a provision therefor. It may also be noticed that by the passing of a final decree, the rights stand crystalised and it is only thereafter its enforceability can be had though not otherwise. As noticed above the submission of Mr. Manu apparently seemed to be very attractive specially in view of the decision in Lokhande's case (supra). In Lokhande's case as noted above, this Court was not called upon to decide the true perspective of Article 136 of the Act of 1963 rather decided the issue in the peculiar fact situation of the matter on the bas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been bought into existence by the British Parliament in 1899 though, however, the Government of India Adaptation of Indian Laws Order 1937, the Indian Independence Adoptation of Central Acts and Ordinance Order 1948 and the Adoptation of Laws Order 1950 allowed this fiscal statute to remain on the statute book. The legislature while engrafting 1963 Act, it is presumed and there being a golden canon of interpretation of statutes, that it had in its mind the existing Indian Stamp Act before engrafting the provisions under Article 136. A latter statute obviously will have the effect of nullifying an earlier statute in the event of there being any conflict provided however and in the event there is otherwise legislative competency in regard thereto. As regards the legislative competency, there cannot be any doubt which can stand focussed neither there is any difficulty in correlating the two statutes being operative in two different and specified spheres. Enforceability of the decree cannot be the subject matter of Section 35 neither the limitation can be said to be under suspension. The heading of the Section viz., Instrument not duly stamped inadmissible in evidence etc , (emphasis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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