http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 4  

CASE NO.: Appeal (civil)  1100 of 2000

PETITIONER: Ram Bachan Rai & Ors.

RESPONDENT: Ram Udar Rai & Ors.

DATE OF JUDGMENT: 05/05/2006

BENCH: ARIJIT PASAYAT & TARUN CHATTERJEE

JUDGMENT: J U D G M E N T

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’).  

       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.   A brief reference to the factual aspect would suffice.

       The respondents-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 concerned suit 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 IX 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 XXI Rule 22 or Order XXI 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.  

       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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 4  

Revision was summarily dismissed.  

       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  Corporation v. Swadesh Agro Farming & Storage Pvt. Ltd.  and Anr. (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.  

       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 XX Rule 7  of the 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.

       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  application

Period of limitation

Time from which period  begins to run 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 tat a certain date  or at recurring periods,  when default in

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 4  

making the payment or  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  imitation.

                Noticing some conflicts in views expressed by two  Judge Benches judgment of this Court, reference was  made to a three Judge Bench in Chiranjilal (dead) by Lrs.  V. Hari Das (dead) by Lrs. (2005(2) SCC 261). A three  Judge Bench by its judgment dated May 13, 2005 in Dr.  Chiranji Lal (D) by Lrs. V. Hari Das (d) by Lrs. (2005 (10)  SCC 746) has decided the matter observing inter-alia as  follows:

"24. A decree in a suit for partition declares  the right of the parties in the immovable  properties and divides the shares by metes and  bounds. Since a decree in 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 Indian  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 paragraph 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  thereupon an only thereafter the period  limitation would remain suspended till stamp  paper is furnished and decree engrossed of  twelve years will begin to run would lead to  absurdity. In Yeswant Deorao Deshmukh v.  Walchand Ramchand Kothari, it was said that

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 4  

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)

       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 IX 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 Ram Nath Das and  Ors. v. Saha Chowdhury and Co. Ltd. and Ors. (AIR 1974  Cal 246) where it was held that the decree was  enforceable and when cost is assessed. The ratio in the  said judgment clearly runs counter to what has been  stated in Dr. Chiranji Lal’s case (supra).  

       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.