Citation Codes

Equivalent Citations

citation codes

Case Number

Appeal from Appellate Order no. 362 of 1941, from an order of Rai Bahadur Aghore Nath Banerji, District Judge of Muzaffarpur, dated the 18th June, 1941, setting aside an order of Rai Sahib Ram Prasad Ghosal, Subordinate Judge at Muzaffarpur, dated the 7th August, 1940,Appeal No. 362 of 1941

Attorney(S)

B.C De and D.L Nandkeolyar, for the appellant.
S.K Mitter, for the respondent.

Judges

Rowland
Chatterji, JJ.

Acts

section 205 of the Civil Procedure Code of 1882 and Order XX, rule 7, of the present Code.
provisions of Order XX, rule 12(2), of the Code of Civil Procedure.
section 32 of the Code of Civil Procedure, 1882 (Order I, rule 10,
Article 182 of the first schedule of the Limitation Act
Order XX, rule 7, of the Code of Civil Procedure.
section 2(2) of the Code of Civil Procedure
section 47 of the Code of Civil Procedure.
Order XX, rule 7, of the Code of Civil
Article 182(1) of the Limitation Act,
Article 182 of the Limitation Act
COURT FEES ACT
SECTION 11 COURT FEES ACT
section 33.the Court
Order XX, rule 7,

See more information ...

Smart Summary

Judgment Summary — Chatterji, J. (with Rowland, J. concurring)

Factual and Procedural Background

The suit concerned a final decree for mesne profits. After a preliminary decree a Commissioner was appointed to ascertain mesne profits. The Commissioner's report was accepted and on 6 January 1936 the Court ordered that the commissioner's report be put up and that "Let final decree be prepared in terms of the commissioner's report," added costs and a pleader's fee, and included the direction: "No decree shall be prepared unless deficit court-fees are filed."

The decree-holder delayed. On 10 September 1938 the plaintiff applied for assessment of the deficit court-fee and for preparation of the final decree. The Court ordered payment of deficit court-fee of Rs.127-8-0 by 19 November 1938. The plaintiff did not deposit the fee until 1 December 1938; on 3 December 1938 the Court recorded "Deficit court-fee stamp filed. Let final decree be drawn up now." The decree was drawn up on 30 January 1939 and signed on 8 February 1939.

An application for execution was filed on 17 January 1940. The judgment-debtor objected that the execution was barred by limitation (more than three years after the date of the decree). The learned Subordinate Judge sustained that objection (holding execution barred), but the learned District Judge overruled it and allowed execution to proceed. The judgment-debtor appealed to the High Court (second appeal).

Legal Issues Presented

For the purpose of computing limitation under Article 182 of the First Schedule of the Limitation Act, whether the "date of the decree" is the date on which judgment was pronounced (6 January 1936) under Order XX, rule 7, of the Code of Civil Procedure, or the later date(s) when the decree was drawn up/signed or when deficit court-fee was paid.
Whether the order of 6 January 1936 was a final decree (conclusively determining the parties' rights as to mesne profits) or an interlocutory/provisional order because it postponed preparation of the formal decree until the deficit court-fee was paid.
Whether the payment of the deficit court-fee or the application for assessment/preparation of the final decree can be treated as a "step-in-aid of execution" so as to affect the date from which limitation runs.
Whether the present case is distinguishable from authorities where a decree was conditional on compliance by the decree-holder (i.e., whether the decree here was conditional and not capable of execution until the fee was paid).

Arguments of the Parties

Appellant (Judgment-Debtor) — Mr. B. C. De

Argued that limitation must be computed from the date of the decree under Article 182 of the Limitation Act and that Order XX, rule 7, makes the date of the decree the date of the judgment; therefore the decree date is 6 January 1936 and the execution application filed on 17 January 1940 is time-barred.
Relied on this Court's decisions in Surajdeo Narain Singh v. Musahroo Raut and Hira Lal Sahu v. Jamuna Prasad Singh, and on Calcutta High Court decisions including Bhajan Behary Shaha v. Girish Chandra Shaha and Kishori Mohan Pal v. Provash Chandra Mondal.

Respondent (Decree-Holder) — Mr. S. K. Mitter

Contended that the last portion of the 6 January 1936 order ("no decree shall be prepared unless deficit court-fees are paid") meant something remained to be done by the Court and that the final decree was really passed on 3 December 1938 (or on the date it was drawn/signed), not on 6 January 1936.
Argued that steps taken by the decree-holder to pay the fee or to procure drawing up of the decree were steps in aid of execution, and relied on a variety of cases (including Jotindra Mohan Tagore v. Bejoy Chand Mahatap; Babu Ram v. Gopal Sahai; Khudadad v. Moriokhan; and other single-Judge decisions) to support the contention that the decree was not complete or executable until the condition/further act was performed.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Surajdeo Narain Singh v. Musahroo Raut	That the date of the decree for purposes of limitation is the date of the judgment (per Order XX, rule 7), not the date of signing where a Commissioner later fixed amounts.	Cited as authority that the date of the judgment (27 July 1909 in that case) is the date of the decree even though signing occurred later; relied upon to hold 6 January 1936 to be the decree date here.
Hira Lal Sahu v. Jamuna Prasad Singh	Affirmed that the date of the decree is the date of the judgment under Order XX, rule 7.	Used to support the proposition that limitation runs from the judgment date (1 May 1915 in that case).
Bhajan Behary Shaha v. Girish Chandra Shaha	Held that Article 182 governs execution limitation and that the date of the decree is the day the judgment was pronounced; also held that payment of fee can be a prerequisite to bringing a decree into existence but is not a "step-in-aid of execution".	Quoted to reject the argument that payment/assessment of court-fee is a step-in-aid of execution and to support the proposition that the decree's date is the judgment date.
Kishori Mohan Pal v. Provash Chandra Mondal	Held that the date of decree for limitation purposes is the date of the judgment even though the decree could not be drawn up until stamp duty was paid later.	Relied on as precedent showing limitation runs from the judgment date (25 March 1914 in that case) and to distinguish arguments based on the later signing/drawing-up date.
Jotindra Mohan Tagore v. Bejoy Chand Mahatap	Considered the point whether the Court retained seisin and could add parties before a decree was signed; related to section 32 of the old Code (Order I, rule 10 of present Code).	Distinguished: the Court held that the decision concerned the Court's seisin and power to add parties, and was not helpful for deciding whether limitation runs from judgment date or signing date.
Babu Ram v. Gopal Sahai (Decree-Holder v. Judgment-Debtor)	Held that where a decree was conditional on deposit of court-fee, the decree was not complete and executable until the condition was satisfied; limitation ran from satisfaction of condition.	Considered and distinguished: court accepted that where a decree is conditional the decree may not be executable until the condition is met, but held the present decree was not conditional in that sense.
Khudadad v. Moriokhan	Where judgment was given but the Court refused to give a decree until a condition was complied with, the judgment was provisional and the operative date for limitation was the later date when decree was prepared.	Examined and distinguished on the basis that there was no complete adjudication in that case until the condition was satisfied; the present case had a complete adjudication on 6 January 1936.
Uttar Chand Kapur v. Sayad Hamid	Single-Judge decision where a complex decree and further proceedings led to a finding that an intervening application was a step-in-aid of execution in that factual matrix.	Noted as distinguishable on facts; the present Court preferred Bhajan Behary Shaha's reasoning over this single-Judge view for the present facts.
Ram Narain Kaul v. Maharaj Narain Kaul	Single-Judge decision holding that filing stamp paper to bring a final partition decree into existence could be treated as a step-in-aid of execution.	Not followed; the present Court expressed difficulty with treating mere filing of stamp paper as a step-in-aid and distinguished the case on principle.

Court's Reasoning and Analysis

The Court began by identifying the legal rule: for purposes of computing limitation under Article 182 of the Limitation Act, Order XX, rule 7 of the Code of Civil Procedure indicates that the date of the decree is the date of the judgment. The Court considered whether the 6 January 1936 order was a final decree or only an interlocutory order postponed pending payment of court-fees.

The Court examined the statutory definition of "decree" (section 2(2) of the Code) which describes a decree as the formal expression of an adjudication that conclusively determines the parties' rights and may be preliminary or final. The Court noted the explanation that a decree is "final when such adjudication completely disposes of the suit."

Applying that definition to the facts, the Court observed that the matter in controversy between the parties was the amount of the mesne profits, and that that matter was finally determined by the order dated 6 January 1936. The amount having been determined, the question of court-fee payable was merely a calculation under the Court-fees Act and did not require further adjudication. The direction that no decree should be prepared unless deficit court-fees were paid was interpreted as postponing the formal drawing up of the decree, not as making the decree conditional or provisional in substance.

The Court distinguished authorities relied on by the respondent: Jotindra Mohan Tagore (concerned with the Court's continuing seisin for adding parties) was not relevant to when limitation runs; Babu Ram (where a conditional decree was not complete until the condition was satisfied) was confined to decrees that were conditional in substance; Khudadad v. Moriokhan (where there was no complete adjudication until a condition was satisfied) was likewise distinguishable because in the present case there was a complete adjudication on 6 January 1936.

The Court accepted Sir Lawrence Jenkins' reasoning in Bhajan Behary Shaha that payment of a fee required to bring a decree into existence is not a "step-in-aid of execution" and that limitation must be computed from the date of judgment where the adjudication is complete. The Court therefore concluded that the decree was final on 6 January 1936 and that limitation for execution began to run from that date.

The Court explicitly rejected the respondent's argument that the later acts by the decree-holder (assessment/payment of deficit court-fee and application for preparation of the final decree) were steps-in-aid of execution sufficient to extend the limitation period. The Court preferred the view in Bhajan Behary Shaha over contrary single-Judge decisions relied upon by the respondent.

Holding and Implications

APPEAL ALLOWED; EXECUTION HELD TO BE BARRED BY LIMITATION.

Direct effect on the parties:

The High Court allowed the appellant's second appeal, set aside the District Judge's order permitting execution, and restored the Subordinate Judge's order holding that execution was barred by limitation.
The appellant (judgment-debtor) was awarded the costs of this appeal and of the appeal in the Court below: hearing fee Rs. 8 in the Court below and two gold mohurs in this Court.

Broader implications: The Court applied and followed prior authorities (notably Surajdeo Narain Singh, Hira Lal Sahu, Bhajan Behary Shaha, and Kishori Mohan Pal) to reaffirm that, where a final adjudication on the matter in controversy has been made, the date of the judgment (per Order XX, rule 7) is the date from which limitation under Article 182 runs; mere postponement of the formal drawing up of a decree pending payment of court-fees does not convert a final decree into a preliminary or conditional decree for limitation purposes. The opinion did not purport to create a new precedent beyond applying existing authority to the facts before the Court.

Disposition: Appeal allowed; order of District Judge set aside; order of Subordinate Judge restored.

Show full summary ...

Mohammad Sadique Mian v. Mahabir Sao

Chatterji, J.:— This is an appeal by the judgment-debtor against an appellate order rejecting his objection under section 47 of the Code of Civil Procedure. The decree under execution is a final decree for mesne profits passed under the provisions of Order XX, rule 12(2), of the Code of Civil Procedure. After the preliminary decree had been passed, a Commissioner was appointed by the Court to ascertain the mesne profits. The Commissioner submitted his report which was accepted by the Court on the 6th January, 1936, and the Court passed the following order on that date:

“The commissioner's report is put up. Let final decree be prepared in terms of the commissioner's report. The plaintiff shall get costs on ex-parte scale and pleader's fee Rs. 2½ per cent. No decree shall be prepared unless deficit court-fees are filed.”

The plaintiff apparently remained idle for a long time and on the 10th September, 1938, he filed a petition praying for assessment of deficit court-fee and for preparation of the final decree. On that application the Court passed an order on the 26th October, 1938, directing the plaintiff to pay deficit court-fee of Rs. 127-8-0 by the 19th November, 1938. The plaintiff, however, did not deposit the deficit court-fee until the 1st December, 1938. Then on the 3rd December, 1938, the following order was passed:

“Deficit court-fee stamp filed. Let final decree be drawn up now.”

The decree was actually drawn up on the 30th January, 1939, and it was signed on the 8th February, 1939.

The application for execution was filed on the 17th January, 1940. The judgment-debtor took the objection that the execution was barred by limitation as it was filed more than three years after the date of the decree. This objection found favour with the learned Subordinate Judge, but on appeal the learned District Judge overruled it and allowed the execution to proceed. The judgment-debtor accordingly has come up in second appeal.

Mr. B.C De on behalf of the appellant contends that the period of limitation must be computed from the date of the decree under Article 182 of the first schedule of the Limitation Act and the date of the decree is the date of the judgment under Order XX, rule 7, of the Code of Civil Procedure. As the final judgment was passed on the 6th January, 1936, that date must be taken to be the date of the decree and, therefore, the execution must be held to be barred by limitation. Mr. De relies on the decisions of this Court in Surajdeo Narain Singh v. Musahroo Raut and Hira Lal Sahu v. Jamuna Prasad Singh and on the decisions of the Calcutta High Court in Bhajan Behary Shaha v. Girish Chandra Shaha and Kishori Mohan Pal v. Provash Chandra Mondal.

In the case of Surajdeo Narain Singh the decree under execution was a redemption decree. The judgment was pronounced on the 27th July, 1909, but the decree was not actually signed until 23rd February, 1910, because in the meantime a Commissioner had been appointed to ascertain the exact amount due under the decree. The application for execution was filed on the 29th January, 1913, that is to say, within three years of the date of the signing of the decree but beyond three years from the date of the judgment. It was contended that limitation should run from the date on which the decree was actually signed, but this contention was negatived by this Court. Their Lordships held that the date of the decree must be the date of the judgment as provided in the Code of Civil Procedure.

In the case of Hira Lal Sahu, the judgment was dated the 1st May, 1915, but the decree was not signed until the 15th May, 1915. The application for execution was filed on the 13th May, 1918. It was held that the application was barred by limitation because the date of the decree was the date of the judgment under Order XX, rule 7, of the Code of Civil Procedure.

In the case of Bhajan Behary Shaha, the decree under execution was a decree passed in a suit for accounts. Under that decree the deficit court-fee was required to be paid. The application for execution was filed within three years from the date of payment of the court-fee but beyond three years from the date of the decree. Sir Lawrence Jenkins, C.J, who delivered the judgment in that case, said: “Article 182 of the Limitation Act, by which limitation in this case is governed, provides that the period for the execution of the decree is three years from the date of the decree. The date of the decree is that which is indicated in section 205 of the Civil Procedure Code of 1882 and Order XX, rule 7, of the present Code. It is provided by this Rule that the decree shall bear date the day on which the judgment was pronounced.” In this view the application was held to be out of time.

In Kishori Mohan Pal's case the decree under execution was a partition decree. It was passed on the 25th March, 1914, but as the plaintiff delayed in filing the stamp duty the decree was not actually drawn up until the 2nd January, 1920. The application for execution was filed on the 21st July, 1920. It was contended on behalf of the decree-holder that as the decree could not be drawn up until the necessary stamp duty was paid, limitation should run from the date of the signing of the decree, but their Lordships held that the date of the decree was the 25th March, 1914, on which the judgment was pronounced and, therefore, limitation should run from that date.

All these decisions thus clearly establish that for the purpose of computing limitation under Article 182 of the Limitation Act, the date of the judgment should be taken to be the date of the decree as provided under Order XX, rule 7, of the Code of Civil Procedure. In this case there can be no doubt that the final adjudication between the parties regarding the amount of the mesne profits was given on the 6th January, 1936. That date must, therefore, be taken to be the date of the decree. Mr. S.K Mitter on behalf of the respondent lays stress on the last portion of the order of the 6th January, 1936 that is,

“no decree shall be prepared unless deficit court-fees are paid”

and he argues that something more was necessary to be done by the court in order to pass the final decree. It is said that the final decree was really passed on the 3rd December, 1938, and that the order of the 6th January, 1936, was in the nature of an interlocutory order. There is no substance, to my mind, in this argument. ‘Decree’ as defined in section 2(2) of the Code of Civil Procedure 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 matter in controversy in the suit and may be either preliminary or final.”

Then there is the following 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.”

The matter in controversy between the parties was the amount of the mesne profits. That was finally determined by the order, dated the 6th January, 1936. The amount being determined, the question of the court-fee payable was a matter of mere calculation with reference to the provisions of the Court-fees Act. No further adjudication by the Court was necessary in order to determine the amount of the court-fee. What the Court meant by saying that “no decree shall be prepared unless deficit court-fees are paid” was that the formal drawing up of the decree should be postponed until the court-fee was paid. Nothing more remained to be decided by the Court. The moment the plaintiff paid the deficit court-fee in accordance with this order, the decree would have been automatically drawn up. The order, dated the 3rd December, 1938, “Let final decree be drawn up now” did by no means determine any matter in controversy between the parties. After the order of the 6th January, 1936, it only remained with the plaintiff to pay the court-fee. I have, therefore, no hesitation in holding that the order passed on the 6th January, 1936, was the final decree.

Mr. Mitter relies on the case of Jotindra Mohan Tagore v. Bejoy Chand Mahatap in which the point for consideration was quite different. After a final decree for partition was passed, but before it was actually prepared and signed, an application to the Court for adding some party was made. Their Lordships held that under section 32 of the Code of Civil Procedure, 1882 (Order I, rule 10, of the present Code) the Court had power to add a party because the suit had not yet been finally disposed of. What their Lordships actually meant was that the Court had seisin of the case until it had actually signed the decree and, therefore, it had power to add a party under section 32 of the old Code. This case can be of no assistance in deciding the question whether for the purposes of Article 182 of the Limitation Act the period of limitation should be computed from the date of the decree which means the date of the judgment or the date when the decree was signed.

Mr. Miller next relies on the case of Babu Ram…(Decree-Holder); v. Gopal Sahai…(Judgment-Debtor).* a case on which the learned District Judge has bayed his decision. In that case decree was passed on condition that the necessary court fee was deposited. The, decree-holder deposited the court-fee after three years of the decree. This was accepted by the Court and then he sought to execute it. The judgment-debtor took the objection that the execution was barred. Their Lordships overruled this objection holding that the decree was not complete until the payment of the court-fee and that until that date there was no decree which could be executed. In that case the decree was a conditional decree and their Lordships were perhaps right in holding that until the condition was satisfied the decree was not capable of execution. But in the present case it cannot be said that the decree in question was a conditional decree. The first part of the order of the 6th January, 1936, makes it quite clear that the final decree was passed. The condition that the decree should not be prepared unless the deficit court-fee was paid merely meant that the formal drawing up of the decree was to be postponed until the payment of the court-fee. It did not in any way change the final and conclusive nature of the decree.

Reliance is also placed on Khudadad v. Moriokhan which is a decision of the Sind Judicial Commissioner's Court. In that case the Court gave a judgment but refused to give a decree till the successful party complied with a certain condition. It was held that the effect of such an order was to pronounce a provisional judgment which did not become operative until the decree was prepared and that the latter date was the date of the judgment as well as of the decree from which limitation for the purpose of execution would run. The question really turned on whether there was a complete adjudication of the matters in controversy. In that case it was held that there was no such adjudication until the condition was satisfied. In the present case as I have already said there was a final and complete adjudication on the 6th January, 1936.

It is argued by Mr. Mitter in the alternative that the application which was made by the plaintiff on the 10th September, 1938, for assessment of deficit court-fee and preparation of the final decree is a step in aid of execution. To this contention a complete; answer is afforded by the decision of Sir Lawrence Jenkins in Bhajan Behary Shaha v. Girish Chandra Shaha which I have already quoted. His Lordship said: “As an alternative it is suggested that the payment of the fee was a'step-in-aid of execution. But I cannot so regard it. It was merely a proceeding for validating the decree in favour of defendants nos. 14 and 15, and in no sense a step in execution or in aid of execution A step-in-aid of execution implies that there is already a decree which can be executed and in furtherance of which the step is taken. In the present case the payment of the deficit court-fee was required to bring into existence the decree which was to be executed: nor can the application for the preparation of the final decree by any means be said to be a step-in-aid of execution.

Mr. Mitter relies on Uttar Chand Kapur v. Sayad Hamid and Ram Narain Kaul v. Maharaj Narain Kaul. Both these cases are decisions of a single Judge. In the first case there was a decree, dated the 29th March, 1933, for an injunction restraining the defendant from infringing copyright in certain portions of some books and also for damages, the decree for damages being subject to the plaintiff's making up the necessary court-fee. The decree also directed the defendant to extract those portions of the books which infringed the copyright and hand them over to the plaintiff. On the 11th of April, 1933, the defendant asked for leave to deposit in Court the offending portions of the books. On the 16th of June, 1933, the plaintiff made an application for directing the defendant to make a proper list of the number of books. The final order on this application was made on the 12th October, 1933. On the 23rd September, 1936, the plaintiff applied for execution of the money decree and asked for permission to pay the deficit court-fee which was granted. An objection being taken that the execution was barred by limitation, it was held that the decree being one, though consisting of two parts, the application filed on the 16th June, 1933, on which the final order was passed on the 12th October, 1933, was a step-in-aid of execution. This case is thus quite distinguishable its facts.

In Ram Narain Kaul's case it was held that in a partition suit an application for the preparation of the final decree on the stamp paper supplied by decree-holder should be treated as a step-in-aid of execution. No authority is cited in support of this proposition, and with all respect to the learned Judge, I do not understand how the filing of the stamp paper in order to bring into existence the final partition decree could be regarded as a step-in-aid of execution.

For the aforesaid reasons I am of opinion that the execution is barred by limitation, as held by the Subordinate Judge. I would accordingly allow the appeal, set aside the order of the District Judge and restore that of the Subordinate Judge. The appellant will be entitled to costs of this appeal and of the appeal in the Court below: hearing fee Rs. 8 in the Court below and two gold mohurs in this Court.

Rowland, J.:— I agree.

The question which has been discussed at some length need hardly have arisen if the Subordinate Judge who dealt with the original suit had noticed that section 11 of the Court-fees Act in no way required him to postpone the passing or the drawing up of a decree for mesne profits. What the section says is that the decree shall not be executed until the court-fee is paid. Ordinarily a Court is expected to follow the provisions of the Code of Civil Procedure which says in section 33.

“the Court after the case has been board shall pronounce judgment and on such judgment a decree shall follow.”

The decree is defined in section 2(2) and is taken to be final when the adjudication which it expresses completely disposes of the suit. Its character as a decree depends on its conclusively determining the rights of the parties with regard to all or any of the matters in controversy in the suit and I agree with my learned brother that when there was no longer any matter of controversy remaining in the suit the decree was final and we cannot accede to the contention that the order, of 6th January, 1936, is to be considered as having the nature of a preliminary decree and that of 3rd December, 1938, of the final decree in the suit. That being so, the date of the decree under Order XX, rule 7, can be no other than the 6th January, 1936. A period of more than four years elapsed between that date and the application, dated 17th January, 1940, to execute it.

As to the argument that the application to the Court to assess the deficit court-fee or to receive the deficit court-fee or to prepare and sign the decree can be considered as an application to take step-in-aid of execution within the meaning of Article 182(1) of the Limitation Act, I agree that we should follow the decision in Bhajan Behary Shaha v. Girish Chandra Shaha rather than the contrary opinions expressed elsewhere.

K.D

Appeal allowed.

Mohammad Sadique Mian v. Mahabir Sao

Judgment Summary — Chatterji, J. (with Rowland, J. concurring)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant (Judgment-Debtor) — Mr. B. C. De

Respondent (Decree-Holder) — Mr. S. K. Mitter

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Mohammad Sadique Mian v. Mahabir Sao

Comments