TMI Blog2001 (8) TMI 1428X X X X Extracts X X X X X X X X Extracts X X X X ..... ocess for enforcing or giving effect to the judgment of the court and stated: The word execution is not defined in the Act. It is, of course, a word familiar to lawyers. Execution means, quite simply, the process for enforcing or giving effect to the judgment of the court: and it is completed when the judgment creditor gets the money or other thing awarded to him by the judgment. That this is the meaning is seen by reference to that valuable old book Rastill Termes de la Ley, where it is stated: Execution is, where Judgment is given in any Action, that the plaintiff shall recover the land, debt, or damages, as the case is; and when any Writ is awarded to put him in Possession, or to do any other thing whereby the plaintiff should the better be satisfied his debt or damages, that is called a writ of execution; and when he hath the possession of the land, or is paid the debt or damages, or hath the body of the defendant awarded to prison, then he hath execution. And the same meaning is to be found in Blackman v. Fysh: [(1892) 3 Ch. 209, 217, C.A.], when Kekewich, J. said that execution means the process of law for the enforcement of a judgment creditor s ri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Before elaborating any further, it would be convenient to note the Report of the Law Commission which reads as below: 170. Article 182 has been a very fruitful source of litigation and is a weapon in the hands of both the dishonest decree-holder and the dishonest judgment debtor. It has given rise to innumerable decisions. The commentary in Rustomji s Limitation Act (5th Edn.) on this article itself covers nearly 200 pages. In our opinion the maximum period of limitation for the execution of a decree or order of any civil court should be 12 years from the date when the decree or order became enforceable (which is usually the date of the decree) or where the decree or subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods, the date of the default in making the payment or delivery in respect of which the applicant seeks to execute the decree. There is, therefore, no need for a provision compelling the decree-holder to keep the decree alive by making an application every three years. 3 There exists a provision already in section 48 of the Civil Procedure Code that a decree ceases to be enforceable a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on 8.10.1984. The records depict that on 11th December, 1984, the execution petition was dismissed with a finding that since the same was filed beyond twelve years, the execution petition was barred by limitation. Subsequently, a Revision Petition was filed against said order (C.R.P. No.2000 of 1985) and on 10.3.1989, the High Court however did set aside the order of the executing court and directed that the question of limitation should be considered afresh. The records further depict that on 13th July, 1989, the District Court held that the Execution Petition is not barred by limitation. As against the order of the District Court dated 13th July, 1989, a Revision Petition was filed before the High Court by the legal heirs of the first defendant challenging the said finding and the learned Single Judge of the High Court in a very detailed and elaborate judgment allowed the Civil Revision Petition and set aside the order of the district court. Consequently, the execution petition also stood dismissed and hence the Special Leave Petition before this Court and the subsequent grant of leave by this Court. As noticed earlier in this judgment, Article 136 of the Limitation Act 196 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enforcement of a decree is the date on which the decree becomes enforceable or capable of being enforced - what is required is to assess the legislative intent and if the intent appears to be otherwise clear and unambiguous, question of attributing a different meaning other than the literal meaning of the words used would not arise. It is in this context, we also do feel it inclined to record our concurrence to the observations of the full Bench of the Bombay High Court in Subhash Ganpatrao Buty v. Maroti Krishnaji Dorlikar (AIR 1975 Bom.244). The Full Bench in the decision observed: .........it is the duty of the Court to interpret the language actually employed and to determine the intention of the legislature from such language and since there is no ambiguity about the language actually employed, neither the recommendation of the Law Commission nor the aims and object as set out in the Statement of Objects and reasons can be brought in aid or can be allowed to influence the natural and grammatical meaning of the Explanation as enacted by the Parliament. Adverting however, to the merits of the matter at this juncture and for consideration of the applicability of Article ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r suspension can be had when the decree is a conditional one in the sense that some extraneous events have to happen on the fulfillment of which alone it could be enforced - furnishing of stamped paper was entirely in the domain and power of the decreeholder and there was nothing to prevent him from acting in terms therewith and thus it cannot but be said that the decree was capable of being enforced on and from 20th November, 1970 and the twelve years period ought to be counted therefrom. It is more or less in identical situation, this Court even five-decades ago in he case of Yeswant Deorao Deshmukh v. Walchand Ramchand Kothari (1950 SCR 852) has stated: ...The decree was not a conditional one in the sense that some extraneous event was to happen on the fulfillment of which alone it could be executed. The payment of court fees on the amount found due was entirely in the power of the decree-holder and there was nothing to prevent him from paying it then and there; it was a decree capable of execution from the very date it was passed. Needless to record that engrossment of stamped paper would undoubtedly render the decree executable but that does not mean and imply however, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Order 20 and Order 21 Rule 11 C.P.C. which is clearly impermissible. The observations thus in W.B. Essential Commodities Supply Corpn.(supra) lends concurrence to the view expressed above pertaining to the question of enforceability of the decree as laid down in Article 136 of the Limitation Act. Incidentally, in paragraph 12 of the judgment in W.B.Essential Commodities Supply Corpn.(supra), this Court listed out three several situations in which a decree may not be enforceable on the date it is passed and in last of the situations, this Court observed: Thirdly, in a suit for partition of immovable properties after passing of preliminary decree when, in final decree proceedings, an order is passed by the court declaring the rights of the parties in the suit properties, it is not executable till final decree is engrossed on non-judicial stamp paper supplied by the parties within the time specified by the court and the same is signed by the Judge and sealed. It is in this context that the observations of this Court in Shankar Balwant Lokhande v. Chandrakant Shankar Lokhande (1995 (3) SCC 413) have to be understood. These observations do not apply to a money decree and, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upra) however is completely different since there was no final decree at all but only a preliminary decree. Paragraph 10 of the report at page 419 makes the situation amply clear. Paragraph 10 reads as below: 10. As found earlier, no executable final decree has been drawn working out the rights of the parties dividing the properties in terms of the shares declared in the preliminary decree. The preliminary decree had only declared the shares of the parties and properties were liable to be partitioned in accordance with those shares by a Commissioner to be appointed in this behalf. Admittedly, no Commissioner was appointed and no final decree had been passed relating to all. Another significant feature which would render the decision inapplicable in the contextual facts is the consideration of the matter in the perspective of the 1908 Act (the old Act) and not the Limitation Act of 1963. The language of Article 136 is clear, categorical and unambiguous and it is the difficulty experienced in the matter of interpretation of Article 182 which has been a very fruitful source of litigation , prompted incorporation of Article 136 in the Statute Book. The recommendation of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in paragraph 10 of the Report (1995 (3) SCC 413) makes the situation clear enough to indicate that the Court was not called upon to adjudicate the issue as raised presently. The observations thus cannot, with due deference to the learned Judge, but be termed to be an obiter dictum. It is in this context that we rather feel it inclined to record the observation of Russel L.J. in Rakhit v. Carty (L.R. (1990) 2 Q.B. 315) wherein at page 326/327 of the report it has been observed: Miss Foggin has now submitted to this court that the decision in Kent s case was indeed per incuriam in that she submits that the judgment of Ormrod L.J. with which Dunn L.J and Sir Sebag Shaw agreed, made no reference to section 67 (3), that, if the Court of Appeal had been referred to that subsection and had had regard to its terms, the decision would plainly have been different and that consequently this court should not follow Kent s case. I have already expressed my own views as to the proper construction of section 44(1) and the impact of section 67 (3). In Rickards v. Rickards [1990] Fam. 194, 203 Lord Donaldson of Lymington M.R. said: The importance of the rule of stare decisis in relation t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he matter under consideration are completely different, as such the decision in Lokhande cannot by any stretch be termed to be a binding precedent. In M/s. Amarnath Om Parkash and Ors. v. State of Punjab Ors. (1985 (1) SCC 345), a three Judges Bench of this Court in no uncertain terms stated: We consider it proper to say, as we have already said in other cases, that judgments of courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for Judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. v. Horton : (1951 AC 737, 761), Lord MacDermott observed: The matter cannot, of course, be settled merely by treating the ipsissima verba of Wills, J., as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished Judge,..... In Home ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sent to its mind. The court may consciously decide in favour of one party because of point A, which it considers and pronounces upon. It may be shown, however, that logically the court should not have decided in favour of the particular party unless it also decided point B in his favour : but point B was not argued or considered by the court. In such circumstances, although the case had a specific outcome, the decision is not an authority on point B. Point B is said to pass sub silentio. In one of its latest judgment however this Court in Dr. Vijay Laxmi Sadho v. Jagdish : [(2001) 2 SCC 247], though apparently sounded a contra note but the safeguards introduced herein, does not however create any problem for a decision in the matter under consideration. Anand, C.J. while depricating the characterisation of earlier judgment as per incuriam on ground of dissent observed: that a Bench of coordinate jurisdiction ought not to record its disagreement with another Bench on a question of law and it would be rather appropriate to refer the matter to a larger Bench for resolution of the issue . Anand, C.J. however, has been extremely careful and cautious enough to record it i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... make the partition had already been received, the report was adopted by the judgment subject to certain variations and, in connection with those variations, certain directions of a ministerial character were given to the Commissioner which the Commissioner had merely to obey. The order sheet shows that the Commissioner submitted a report on the 27th June 1914. That report has not been placed before us. But I have no doubt that it did no more than state that the Commissioner had done what he was directed to do by the judgment of the 25th March 1914. That judgment was the final judgment in the suit and it was so regarded by the Subordinate Judge who delivered it. The decree is in accordance therewith. The directions in the judgment were sufficient to indicate how the decree should be framed, and there was no need of any further judgment. The delay in signing the decree was due not to any fault of the Court or to any cause beyond the control of the parties but solely to the delay of the parties in supplying the requisite stamped paper. Any party desiring to have the decree executed might have furnished the stamped paper at any time leaving the expense of providing it to be adjusted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , since a decree for partition is also an instrument of partition in terms of Section 2 (15) of the Indian Stamp Act 1899. For convenience sake, Section 2 (15) reads as below: 2. Definitions - In this Act, unless there is something repugnant in the subject or context,- 15. Instrument of partition means any instrument whereby co-owners of any property divide or agree to divide such property in severalty, and includes also a final order for effecting a partition passed by any revenue-authority or any Civil Court and an award by an arbitrator directing a partition. At the first blush, the submissions seem to be very attractive having substantial force but on a closer scrutiny of the Act read with the Limitation Act, the same however pales into insignificance. Before detailing out the submissions of Mr. Mani on the second count pertaining to the Stamp Act we ought to note Section 35 of the Stamp Act at this juncture. Section 35 records that no instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such we need not dilate therefor any further. Turning attention on to Section 2 (15) read with Section 35 of the Indian Stamp Act, be it noted that the Indian Stamp Act, 1899 (Act 2 of 1899) has been engrafted in the Statute Book to consolidate and amend the law relating to stamps. Its applicability thus stands restricted to the scheme of the Act. It is a true fiscal statute in nature, as such strict construction is required to be effected and no liberal interpretation. Undoubtedly, Section 2 (15) includes a decree of partition and Section 35 of the Act of 1899 lays down a bar in the matter of unstamped or insufficient stamp being admitted in evidence or being acted upon - but does that mean that the prescribed period shall remain suspended until the stamp paper is furnished and the partition decree is drawn thereon and subsequently signed by the Judge? The result would however be an utter absurdity: As a matter of fact if somebody does not wish to furnish the stamp paper within the time specified therein and as required by the Civil Court to draw up the partition decree or if someone does not at all furnish the stamp aper, does that mean and imply, no period of limitation can s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ever it is drawn bears the date of the decree when the same was pronounced by Court and not when it stands engrossed on a stamp paper and signed by the judge and this simple illustration takes out the main thrust of Mr. Mani s submission as regards the applicability of the Stamp Act vis- -vis, the enforceability of the decree. The ecree may not be received in evidence nor it can be acted upon but the period of limitation cannot be said to remain under suspension at the volition and mercy of the litigant. Limitation starts by reason of the statutory provisions as prescribed in the statute. Time does not stop running at the instance of any individual unless, of course, the same has a statutory sanction being conditional, as more fully noticed hereinbefore: the Special Bench decision of the Calcutta High Court in the case of Bholanath Karmakarand others v. Madanmohan Karmakar (AIR 1988 Calcutta 1), in our view has completely misread and misapplied the law for the reasons noted above and thus cannot but be said to be not correctly decided and thus stands overruled. Undoubtedly, the judgment of the Calcutta High Court has been a very learned judgment but appreciation of the legislat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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