- Bookmark
- Share
- CaseIQ
Ram Bachan Rai And Others v. Ram Udar Rai And Others
Factual and Procedural Background
The respondents obtained an ex parte decree on 3-5-1976 in a suit for declaration of title and recovery of possession. The appellants (defendants in the suit) failed to appear on the hearing date but later moved an application under Order 9 Rule 13 of the Code of Civil Procedure, 1908 seeking to set aside the ex parte decree. That application was dismissed for default on 14-7-1978, and all successive challenges—miscellaneous appeal and civil revision—were dismissed, the last dismissal occurring on 6-4-1987. No court ever granted a stay of the decree.
On 5-4-1991, more than fourteen years after the decree, the decree-holders filed an execution application. The judgment-debtors objected under Section 47 CPC, contending that execution was time-barred and that mandatory notices under Order 21 Rules 22 and 58 had not been served. The executing court rejected the objection, holding that the period of limitation should be reckoned from 6-4-1987 (dismissal of the civil revision) because the decree had “merged” in that order. The Patna High Court summarily dismissed the subsequent civil revision filed by the judgment-debtors. The present appeal challenges those orders.
Legal Issues Presented
- Whether the period of limitation under Article 136 of the Limitation Act, 1963 for executing a decree begins from the date of the original decree (3-5-1976) or from the date of dismissal of the subsequent civil revision (6-4-1987).
- Consequently, whether the execution application filed on 5-4-1991 was barred by limitation.
Arguments of the Parties
Appellants' Arguments
- The High Court erred in summarily dismissing the civil revision and in affirming the executing court’s view on limitation.
- Article 136 prescribes a twelve-year period from the date the decree becomes enforceable; reliance was placed on W.B. Essential Commodities Supply Corporation v. Swadesh Agro Farming & Storage (P) Ltd. (1999) 8 SCC 315 to contend that the execution petition filed on 5-4-1991 was beyond time.
Respondents' Arguments
- The decree was passed under Order 20 Rule 7 CPC without quantified costs; hence the limitation period could not commence until the costs for enforcement were assessed.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| W.B. Essential Commodities Supply Corpn. v. Swadesh Agro Farming & Storage (P) Ltd., (1999) 8 SCC 315 | Illustrates that the twelve-year limitation period in Article 136 begins when the decree becomes enforceable. | Cited by appellants to show the execution petition was filed beyond limitation. |
| Chiranji Lal v. Hari Das, (2005) 10 SCC 746 (three-Judge Bench) | Holds that limitation starts when the decree is capable of execution and cannot be postponed by acts such as non-payment of stamp duty. | Formed the main basis for the Supreme Court’s conclusion that limitation ran from 3-5-1976, making the execution application time-barred. |
| Yeswant Deorao Deshmukh v. Walchand Ramchand Kothari, 1950 SCR 852; AIR 1951 SC 16 | States that where payment of court fee is within the decree-holder’s control, the decree is executable from the date it is passed. | Quoted approvingly to reinforce that limitation cannot be suspended by the decree-holder’s inaction. |
| Ramnath Das v. Saha Chowdhury & Co. Ltd., AIR 1974 Cal 246 (Calcutta HC) | Had held that a decree becomes enforceable only after costs are assessed. | Expressly found to be contrary to the principle affirmed in Chiranji Lal and therefore not followed. |
Court's Reasoning and Analysis
The Court examined Article 136 of the Limitation Act, noting that limitation begins when a decree “becomes enforceable.” Relying heavily on the three-Judge Bench decision in Chiranji Lal v. Hari Das, it held that a decree is enforceable from the date it is passed unless the law expressly conditions its execution on a subsequent event. The Court rejected the executing court’s view that the limitation clock restarted upon dismissal of the civil revision, observing that the civil revision was summarily dismissed and did not alter or merge the decree in any substantive way.
The Court also dismissed the respondents’ argument that the absence of quantified costs deferred enforceability, citing paragraphs 24-25 of Chiranji Lal and the earlier decision in Yeswant Deorao Deshmukh to emphasize that parties cannot, by withholding payment of stamp duty or costs, postpone the running of limitation.
Given that the decree became enforceable on 3-5-1976, the twelve-year period expired on 2-5-1988. The execution application filed on 5-4-1991 was therefore clearly time-barred. Consequently, both the executing court and the High Court committed legal error in holding otherwise.
Holding and Implications
Appeal Allowed; execution application rejected for being time-barred.
The orders of the Patna High Court and the executing court are set aside. The immediate consequence is that the decree-holders cannot proceed with execution after expiry of the twelve-year limitation period. The judgment applies the settled principle that limitation for execution runs from the date a decree is first enforceable, reaffirming that parties cannot extend this period through their own inaction; no new precedent beyond this reaffirmation is created.
Arijit Pasayat, J.— Challenge in this appeal is to the order of a learned Single Judge of the Patna High Court summarily rejecting the civil revision filed by the appellants under Section 115 of the Code of Civil Procedure, 1908 (in short “the Code”).
2. The civil revision was filed against the order of the executing court allowing the application for execution of a decree which was passed more than 14 years ago.
3. A brief reference to the factual aspect would suffice:
The respondent-plaintiffs filed a suit for declaration of title and recovery of possession in which the appellants had appeared and filed a written statement. The suit was decreed ex parte as the defendants did not appear on the date fixed. The ex parte decree in the suit concerned was passed on 3-5-1976. No appeal was, however, filed against the aforesaid judgment and decree. The present appellants who are the judgment-debtors filed an application under Order 9 Rule 13 CPC for setting aside the ex parte decree which was dismissed for default on 14-7-1978. The said application was not restored by the trial court and a miscellaneous appeal filed also stood dismissed on 10-1-1987. The civil revision filed against the order of dismissal was also dismissed on 6-4-1987. At no stage any stay was granted by any court and the respondents as decree-holders filed an application for execution on 5-4-1991. According to the appellants, only a symbolic possession was taken as no notice as mandatorily required to be served in terms of Order 21 Rule 22 or Order 21 Rule 58 of the Code of Civil Procedure was ever served on the judgment-debtors. When the judgment-debtors came to know of the symbolic possession taken by the decree-holders, they filed objection under Section 47 CPC saying that the decree was not legally enforceable as it was barred by time.
4. The learned Subordinate Judge dismissed the objection holding that the period of twelve years had to be counted from the date of dismissal of the civil revision by the High Court i.e from 6-4-1987 as the ex parte decree had merged in it. As already noted, the civil revision was summarily dismissed.
5. In support of the appeal, learned counsel for the appellants submitted that the High Court was not justified in summarily rejecting the civil revision. According to him, the executing court had erroneously held that the period of limitation had to be reckoned with effect from the date of dismissal of the civil revision. On the contrary, in view of what has been stated in W.B Essential Commodities Supply Corpn. v. Swadesh Agro Farming & Storage (P) Ltd. (1999) 8 SCC 315 the application was clearly filed beyond the period of limitation. Article 136 of the Limitation Act, 1963 (in short “the Limitation Act”) provides for a period of 12 years for filing an application for execution of a decree for recovery of immovable property. Since the application was filed on 5-4-1991 it was beyond the period of limitation.
6. In response, learned counsel for the respondents submitted that the judgment and decree dated 3-5-1976 was passed in the suit admittedly under Order 20 Rule 7 CPC. As the cost for enforcement of the decree was not quantified, the period of limitation could not have commenced from the date of judgment and the decree.
7. The basic issue, therefore, is when would the period of limitation for execution of a decree passed in a suit commence. Article 136 of the Limitation Act reads as follows:
“Description of suit Period of limitation Time from which period begins to run 136. For the execution of any decree (other than a decree granting a mandatory injunction) or order of any civil court. Twelve years When 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 recurring periods when default in making the payment of delivery in respect of which execution is sought, 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.”
8. Noticing some conflicts in views expressed by two-Judge Bench judgments of this Court, reference was made to a three-Judge Bench in Chiranji Lal v. Hari Das (2005) 2 SCC 261. A three-Judge Bench by its judgment dated 13-5-2005 in Chiranji Lal (Dr.) v. Hari Das (2005) 10 SCC 746 has decided the matter observing inter alia as follows:
“24. A decree in a suit for partition declares the rights of the parties in the immovable properties and divides the shares by metes and bounds. Since a decree in a suit for partition creates rights and liabilities of the parties with respect to the immovable properties, it is considered as an instrument liable for the payment of stamp duty under the Stamp Act. The object of the Stamp Act being securing the revenue for the State, the scheme of the Stamp Act provides that a decree of partition not duly stamped can be impounded and once the requisite stamp duty along with penalty, if any, is paid the decree can be acted upon.”
In para 25 of the same decision, this Court also observed as follows:
“25. The engrossment of the final decree in a suit for partition would relate back to the date of the decree. The beginning of the period of limitation for executing such a decree cannot be made to depend upon date of the engrossment of such a decree on the stamp paper. The date of furnishing of stamp paper is an uncertain act, within the domain, purview and control of a party. No date or period is fixed for furnishing stamp papers. No rule has been shown to us requiring the Court to call upon or give any time for furnishing of stamp paper. A party by his own act of not furnishing stamp paper cannot stop the running of period of limitation. None can take advantage of his own wrong. The proposition that period of limitation would remain suspended till stamp paper is furnished and decree engrossed thereupon and only thereafter the period of twelve years will begin to run would lead to absurdity. In Yeswant Deorao Deshmukh v. Walchand Ramchand Kothari 1950 SCR 852, AIR 1951 SC 16 it was said that the payment of court fee 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.”
(emphasis supplied)
9. In view of the said decision, the inevitable conclusion is that the executing court was not correct in its view. It is to be noted that learned counsel for the respondents conceded to the position that the period of limitation is not to be reckoned from the date of dismissal of the civil revision which was filed relating to rejection of the application under Order 9 Rule 13 CPC. The entire focus was on the date from which the period of limitation is to be reckoned. Reliance was placed on a decision of the Calcutta High Court in Ramnath Das v. Saha Chowdhury and Co. Ltd. AIR 1974 Cal 246 where it was held that the decree was enforceable and (sic) when cost is assessed. The ratio in the said judgment clearly runs counter to what has been stated in Dr. Chiranji Lal case (2005) 10 SCC 746.
10. For the reasons aforesaid, the application for execution filed on 5-4-1991 was clearly time-barred having been filed beyond the period of twelve years prescribed under Article 136 of the Limitation Act. Accordingly, the High Court as well as the executing court committed illegality in coming to a conclusion that it was not barred by limitation. Therefore, the inevitable result is that the order passed by the High Court and the executing court cannot be maintained and are set aside. The appeal is allowed. The application for execution stands rejected. No costs.
Alert