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CASE NO.: Special Leave Petition (civil) 15697  of  1999

PETITIONER: DEEP CHAND & ORS.

       Vs.

RESPONDENT: MOHAN LAL

DATE OF JUDGMENT:       03/04/2000

BENCH: S.Saghir Ahmad, & R.P. Sethi.

JUDGMENT:

SETHI,J. L...I...T.......T.......T.......T.......T.......T.......T..J     Leave granted.

   Suit  for specific performance of contract filed by  the respondent   was  decreed  on   22nd  February,  1973.   The decree-sheet  was  amended vide order dated  5.5.1973.   The appeal   filed  by  the   appellants-Judgment  Debtors   was dismissed  in  default on 15.9.1979 which was  restored  and finally  dismissed on merits by the District Judge,  Gurgaon on  11.3.1981  subject  to the condition that  in  case  the judgment-debtors  make  the  payment of Rs.15,500/-  to  the decree-holder,  plaintiffs’  suit shall stand dismissed  and appeal  accepted.  The first instalment was to be  deposited on  or  before 15.4.1981 and second on or before  15.5.1981. The  judgment-debtors  failed to abide by the terms  of  the said  decree.  The decree-holder was, therefore, entitled to get  the decree executed in lieu of Rs.25,000/- out of which he was stated to have already deposited a sum of Rs.10,218/- as  earnest  money  at  the time of the  agreement  and  had deposited  the balance amount on 12.1.1982.  The amount  was deposited  in  favour of the mortgagee with the result  that the  land was redeemed.  Thereafter the decree-holder  filed execution   applications   on   17.12.1982,  12.6.1984   and 21.9.1992  which were dismissed.  However, the decree-holder got  the  sale  deed executed and registered in  his  favour through  the  process  of execution of the decree  from  the executing  court.   As  despite the  mutation  of  ownership sanctioned  in favour of decree-holder, the judgment-debtors did  not deliver the possession of the land in question,  he filed  an application for execution in April, 1994 which was dismissed  by  the executing court on 24th  September,  1998 holding that the same was barred by limitation.

   Not satisfied with the order of the executing court, the decree-  holder filed a revision petition in the High  Court which  was  allowed vide the order impugned in this  appeal. The  High Court has held that the execution application  has been  filed within time.  Directions have been issued to the executing court for taking further steps in the execution of the  decree  passed  in favour of  the  decree-holder.   The

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judgment  of the High Court has been assailed in this appeal on  the  ground that as the execution application was  filed after  12  years from the date of the decree, the  same  was barred  by  time, and revisional Court was not justified  in allowing the revision petition by setting aside the order of the executing court.

   Article  136 of the Limitation Act is a specific Article prescribing  and  dealing  with  the  applications  for  the execution of decrees and orders.  In Govind Prasad & Anr vs. Pawankumar   the   Privy  Council   held   that   successive applications  for  execution are permitted to be  filed  but only within the period of limitation provided by law.

Article 136 provides:

   For  the execution of any decree (other than 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  or delivery  in  respect  of which execution  is  sought  takes place:

   Provided  that  an application for the enforcement of  a decree  granting a perpetual injunction shall not be subject to any period of limitation.

   A  perusal  of  the  Article shows that  the  period  of limitation prescribed by it starts to run from the date when the  decree  becomes enforceable provided the case does  not fall within the scope of the latter part of the provision in the  third  column.   Generally a decree  or  order  becomes enforceable  from  its  date, but in appropriate  cases  the court  passing  the decree may prescribe time wherefrom  the decree  becomes  enforceable  on a future  date.   It  must, however,  be  remembered  that  the  purposes  of  execution proceeding  is  to  enable the decree-holder to  obtain  the fruits  of  his decree.  In case where the language  of  the decree  is  capable  of two interpretations,  one  of  which assist  the decree-holder to obtain the fruits of the decree and the other preventing him from taking the benefits of the decree,  the interpretation which assists the decree- holder should  be accepted.  The execution of the decree should not be  made  futile  on  mere technicalities  which  does  not, however,  mean  that  where a decree is incapable  of  being executed under any provision of law it should, in all cases, be  executed  notwithstanding  such bar or  prohibition.   A rational  approach  is  necessitated  keeping  in  view  the prolonged factum of litigation resulting in the passing of a decree  in  favour of a litigant.  The policy of law  is  to give  a  fair and liberal and not a  technical  construction enabling the decree-holder to reap the fruits of his decree.

   It  has been held in Akshoy Kumar Debi v.  alini  Ranjan Mukherjee  [AIR  1950 Cal 473];  Annapurnamma  v.   Venkamma@@            JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ [AIR  1939 Mad.323] and Mst.Parmeshri & Ors.  vs.   Mst.Atti@@ JJJJJJJJJJJJJJJJJJJJJJJ [AIR  1958  Punjab  79] that "It is the policy of  law  that Article  182  (now  Article 136) should receive a  fair  and liberal and not a technical construction so as to enable the decree-  holder  to reap the fruits of his decree.  It  will not   be  in  consonance  with   the  principles   of   just

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interpretation,  to  strain the language of Article  182  in favour of a judgment-debtor who has not paid his just debt".

   In  the  instant  case the suit of  the  respondent  was decreed in the following terms:

   "It  is  ordered that the defendant is directed  to  get executed  the sale deed as per agreement Exhibit PW1/2 dated 13.8.69  to sell the suit land for Rs.25,000/- in favour  of the  plaintiffs.   The defendant will get  only  Rs.14,782/- before  the  Sub Registrar at the time of registration.   He had  received  Rs.10,218/-.   The  plaintiff  will  pay  the expenses  on  account of stamp and registration of the  sale deed  in  question  and  plaintiff   is  also  entitled   to possession of this land as soon as the sale deed is executed and  registered.   The  defendant is now  directed  that  he should  execute and get registered the sale deed by  22.3.73 on  the above terms failing which the plaintiff can get  the sale  deed executed through court.  Suit of the plaintiff is accordingly decreed with costs."

   As  noted  earlier, the appellants-judgment debtors  are found  to  have  committed defaults in the  payment  of  the instalments   as  agreed  upon.    The  decree-holder   was, therefore,  entitled to get the sale deed executed in  terms of  the decree passed in his favour.  He was held  "entitled to  possession"  of  the land as soon as the sale  deed  was executed  and registered.  It is not disputed that sale deed was  executed  in  favour of the  decree-holder  vide  court orders  dated  23rd March, 1984.  The execution  application seeking  possession  of the land, the subject matter of  the decree,  was  filed  in April, 1994,  admittedly,  within  a period  of  twelve years as prescribed under Article 136  of the  Limitation  Act.  The High Court has rightly held  that the  decree  for possession of land became enforceable  only after the execution of the sale deed as was the direction of the  court decreeing the suit.  Before the execution of  the sale  deed in his favour on 23.3.1984, the decree-holder was not  entitled  to  possession in terms of the  decree.   The decree,  therefore, itself directed its execution after  the execution  of the sale deed in favour of the  decree-holder. The  decree-holder has been proved to have filed  successive applications  for  the  execution of the decree  within  the period of limitation.  The language of Article 136 cannot be strained  in  favour of the judgment-debtors who  have  been found  to  have  not  availed  of  the  benefits  of  decree conferred upon them as they are proved to have failed to pay the  amount even in instalments.  The decree in the  instant case  is  not  capable of any other  interpretation.   As  a general  rule  the executing court should not find  ways  to dismiss  the execution application as barred by time  unless it  is  established, beyond doubt, that such an  application was beyond limitation.

   We  find  no  infirmity in the order of the  High  Court requring  interference  in  this   appeal.   The  appeal  is accordingly dismissed but without any order as to costs.