Decree becomes enforceable the moment the judgment is delivered - S 5 of limitation Act is not applicable to filing of execution application.
Citation
West Bengal Essential Commodities Supply Corporation Versus Swadesh Agro Farming and Storage Pvt. Ltd.
Head Note
Civil Procedure Code, Order 30, Rules 7 and 6A - Limitation Act, Article 136 - Execution - Limitation for execution - Starting point of limitation - If the decree bears the date when it is actually drawn up and signed, then that date will be incompatible with the date of the judgment - However, to enable a person to execute the decree before it is actually drawn up, Rule 6A provides that the last paragraph of the judgment stating in precise terms the relief granted shall be deemed to be a decree so long as the decree is not drawn - It also enables a party to file any appeal under Order 41, Rule 1 without filing a copy of the decree appealed against - Therefore a decree becomes enforceable the moment the judgment is delivered - Delay in actually drawing the decree will not enlarge the period of limitation prescribed under Article 136 of the Limitation Act. [Paras 6 to 9 and 11]
Limitation Act, Article 136 - Execution - Perpetual injunction - Contingent declaration - Where a decree is not executable until the happening of a given contingency, in such a case time will not begin to run until that event happens. [Para 10]
Civil Procedure Code, Order 20, Rule 18 - Limitation Act, Article 136 - Partition suit - Preliminary decree - In a partition suit preliminary decree declaring the rights of the parties is not executable till final decree is engrossed and signed by the Judge and sealed on non-judicial stamp paper. [Para 10]
Civil Procedure Code, Section 151 - Limitation Act, Section 5 - Limitation Act, Article 136 - Civil Procedure Code, Order 20 Rules 6A and 7 - Extention of Limitation - Condonation of delay - Doctrine of "actus curiae menimem gravabit" (an act of the Court shall prejudice no man) - The doctrine of "actus curiae menimem gravabit" would apply to relieve a party of the hardship or prejudice caused due to the act of the Court - A person who does not file execution application within the period prescribed in Article 136 of Limitation Act in terms of Rules 6A and 7 of Order 20 C.P.C. cannot be said to have suffered some hardship or prejudice due to delay in drawing the decree by the Court much less having any nexus between the act of the Court and hardship or prejudice suffered - Therefore, the decree holder does not have the benefit of exclusion of time even under Sections 5 and 12(2) of Limitation Act as well in filing execution. [Paras 12 and 15 to 17]
Limitation Act, Sections 5 and 12(2), Article 163 - Execution - Condonation of delay for execution - Sections 5 and 12(2) of Limitation Act are not applicable to an execution petition - It will be in violation to the provisions of Limitation Act as well as of Order XX and Order XXI Rule 11 CPC if the time is reckoned not from the date of decree but from the date it is actually prepared. [Para 17]
Cases referred:
1. Rameshwar Singh v. Homeswar Singh, AIR 1921 PC 31.
2. Yeshwant Deorao v. Walchand Ramchand, AIR 1951 SC 16.
3. Shankar Balwant Lokhande (dead) by LRs v. Chandrakant Shankar Lokhande and another, 1995(2) RRR 304 (SC).
4. Raj Kumar Dey and others v. Tarapada Dey and others, 1987(4) SCC 398.
5. Gursharan Singh and others v. New Delhi Municipal Committee and others, 1996(1) RRR 563 (SC).
6. Sri Chandra Mouli Deva v. Kumar Binoya Nand Singh and others, AIR 1976 Patna 208.
7. Sunderlal and Sons v. Yagendra Nath Singh and another, AIR 1976 Calcutta 471.
8. Ram Krishna Tarafdar v. Nemai Krishna Tarafdar and others, AIR 1974 Calcutta 173.
COMPARATIVE CITATIONS:
1999 (8) SCC 315, 1999 (5) Scale 504, 1999 AIR(SC) 3421, 2000 (1) MLJ 44, 2000 (1) LW 587
Limitation Act, Article 136 - Execution - Perpetual injunction - Contingent declaration - Where a decree is not executable until the happening of a given contingency, in such a case time will not begin to run until that event happens. [Para 10]
Civil Procedure Code, Order 20, Rule 18 - Limitation Act, Article 136 - Partition suit - Preliminary decree - In a partition suit preliminary decree declaring the rights of the parties is not executable till final decree is engrossed and signed by the Judge and sealed on non-judicial stamp paper. [Para 10]
Civil Procedure Code, Section 151 - Limitation Act, Section 5 - Limitation Act, Article 136 - Civil Procedure Code, Order 20 Rules 6A and 7 - Extention of Limitation - Condonation of delay - Doctrine of "actus curiae menimem gravabit" (an act of the Court shall prejudice no man) - The doctrine of "actus curiae menimem gravabit" would apply to relieve a party of the hardship or prejudice caused due to the act of the Court - A person who does not file execution application within the period prescribed in Article 136 of Limitation Act in terms of Rules 6A and 7 of Order 20 C.P.C. cannot be said to have suffered some hardship or prejudice due to delay in drawing the decree by the Court much less having any nexus between the act of the Court and hardship or prejudice suffered - Therefore, the decree holder does not have the benefit of exclusion of time even under Sections 5 and 12(2) of Limitation Act as well in filing execution. [Paras 12 and 15 to 17]
Limitation Act, Sections 5 and 12(2), Article 163 - Execution - Condonation of delay for execution - Sections 5 and 12(2) of Limitation Act are not applicable to an execution petition - It will be in violation to the provisions of Limitation Act as well as of Order XX and Order XXI Rule 11 CPC if the time is reckoned not from the date of decree but from the date it is actually prepared. [Para 17]
Cases referred:
1. Rameshwar Singh v. Homeswar Singh, AIR 1921 PC 31.
2. Yeshwant Deorao v. Walchand Ramchand, AIR 1951 SC 16.
3. Shankar Balwant Lokhande (dead) by LRs v. Chandrakant Shankar Lokhande and another, 1995(2) RRR 304 (SC).
4. Raj Kumar Dey and others v. Tarapada Dey and others, 1987(4) SCC 398.
5. Gursharan Singh and others v. New Delhi Municipal Committee and others, 1996(1) RRR 563 (SC).
6. Sri Chandra Mouli Deva v. Kumar Binoya Nand Singh and others, AIR 1976 Patna 208.
7. Sunderlal and Sons v. Yagendra Nath Singh and another, AIR 1976 Calcutta 471.
8. Ram Krishna Tarafdar v. Nemai Krishna Tarafdar and others, AIR 1974 Calcutta 173.
COMPARATIVE CITATIONS:
1999 (8) SCC 315, 1999 (5) Scale 504, 1999 AIR(SC) 3421, 2000 (1) MLJ 44, 2000 (1) LW 587
*Under the scheme of the Limitation Act, execution applications, like plaints have to be presented in the Court within the time prescribed by the Limitation Act. A decree holder does not have the benefit of exclusion of the time taken for obtaining the certified copy of the decree like the appellant who prefers an appeal, much less can he claim to deduct time taken by the Court in drawing up and signing the decree.* .In this view of the matter, the High Courts of Patna and Calcutta in Sri Chandra Mottli Deva v. Kumar Binoya Nand Singh and Ors.AIR (1976) Pat 208 and Sunderlal & Sons v. Yagendra Nath Singh and Anr.AIR 1976 Cal 471 have correctly laid down the law; the opinion to the contra expressed by the High Court of Calcutta in Ram Krishna Tarafdar v. Nemai Krishna Tarafdar and Ors. AIR 1974 Cal 173 is wrong. *Section 5 of the Limitation Act has no application; Section 12(2) of the Limitation Act is also inapplicable to an execution petition. If the time is reckoned not from the date of the decree but from the date when it is prepared, it would amount to doing violence to the provisions of the Limitation Act as well as of Order XX and order XXI Rule 11 C.P.C. which is clearly impermissible.*
*21. In the result, we hold that the period of limitation under Article 136 of the Limitation Act runs from the date of the decree and not from the date when the decree is actually drawn up and signed by the Judge.*
*IN THE SUPREME COURT OF INDIA*
Civil Appeal No. 5005 of 1999
Decided On: 14.09.1999
*West Bengal Essential Commodities Supply Corporation Vs. Swadesh Agro Farming & Storage Pvt. Ltd. and Ors.*
Hon'ble Judges/Coram:
*K. Venkataswami and S.S.M. Quadri, JJ.*
Citation: *(1999) 8 SCC 315*
AIR 1999 SC 3421
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