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CASE NO.: Appeal (civil)  5323 of 2007

PETITIONER: Manohar S/o Shankar Nale and others

RESPONDENT: Jaipalsing S/o Shivlalsing Rajput and others

DATE OF JUDGMENT: 20/11/2007

BENCH: S.B. Sinha & Harjit Singh Bedi

JUDGMENT: J U D G M E N T  [Arising out of SLP(C) No. 25959 of 2005] S.B. SINHA, J.

   1.  Leave granted.

   2.  Applicability of the provisions of Article 136 as contained in the  Schedule appended to the Limitation Act, 1963 is in question in this appeal  which arises out of a judgment and order dated 26.7.2005 passed by a  learned Single Judge of the Bombay High Court, Nagpur Bench at Nagpur in  Writ Petition No. 5927 of 2004 affirming an order dated 26.10.2004 passed  by the Civil Judge, Junior Division in Regular Darkhast No. 32 of  2001. 3.      Shivlalsing, predecessor-in-interest of the respondents filed a suit in  the Court of Civil Judge, Junior Division, Malkapur.   The said suit was  marked as Regular Civil Suit No. 250/1965.   It was dismissed on  24.12.1968.  An appeal preferred thereagainst was also dismissed.  However,  a second appeal filed by the plaintiff-decree holder was allowed upon setting  aside the judgment and decree of the Courts\022 below, the operative portion  whereof reads as under : \023For the reasons stated in the accompanying judgment,  the court allows the appeal, sets aside the decrees of both  the courts below dismissing the suit and instead.   The  Court orders that the plaintiffs suit for possession of 32  gunthas area, as shown in the copy of the map Exh. 30,  from out of Survey No. 59/1 area 3 acres 12 gunthas,  shall stand decreed with costs throughout.  The appellant- plaintiff is also entitled to an enquiry under the  provisions of the Order XX Rule 12(1) C.P.C. for mesne  profit in respect of the suit land from the date of the suit  till the actual delivery of possession.\024

         4.     An application for review thereof was filed by the predecessor-in- interest of the appellants herein.  The said review petition was dismissed by  an Order dated 12.8.1985.  Appellants preferred a special leave petition  thereagainst before this Court and leave having been granted, the matter was  marked as Civil Appeal No. 1836 of 1986. 5.      By an Order dated 21.3.1988, this Court passed an order of stay in the  following terms : \023The Application for Stay above mentioned being called  on for hearing before this Court on the 21st day of March,  1988 upon hearing Counsel for the parties herein.  This  Court Doth Order that the order of this Court dated the 8th  May, 1986 passed in Civil Miscellaneous Petition No.  10447 of 1986 be and is hereby confirmed and that  pending the hearing and final disposal by this Court of  the appeal above mentioned, the operation of the Order  dated the 1st July, 1985 of the High Court of Judicature at  Bombay (Nagpur Bench) Nagpur in Miscellaneous Civil

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Application No. 134 of 1984 in Second Appeal No. 158  of 1972 be and is hereby stayed and the Civil Judge,  Junior Division, Malkapur, Maharashtra be and is hereby  directed to ascertain the amount of mesne profits which  shall be deposited by the appellant herein.\024

6.      The said appeal, however, came to be dismissed as being incompetent  by this Court opining that no appeal lay in terms of Order 47 Rule 7 of the  Code of Civil Procedure rejecting a review application.

7.      Admittedly, an application for executing the said decree was filed by  the decree holder only on 10.12.2001.  Appellant, having been noticed in the  said execution proceeding, inter alia, raised a contention about  maintainability thereof on the premise that the same was barred by  limitation.  The Executing Court by an Order dated 26.10.2004 rejected the  said contention holding : \023It is only a disputed point as to whether the decree was  stayed by Hon\022ble Apex Court.  If it was stayed, the  Darkhast would be within limitation and if not, it would  not be Record of original darkhast is called for copy of  writ in respect of stay is on the said record, from Hon\022ble  Apex Court stayed the effect and operation of the order  passed by Hon\022ble High Court while deciding review  petition against the order passed in Second Appeal.  It is  submitted by Shri Tarkase, learned counsel for the J.D.  that the original decree was not stayed.  It is submitted by  Shri Rawant, learned counsel for the D.H. that the said  order had the effect of staying the original decree as it  merged into the orders passed by Hon\022ble High Court.   I  am in agreement with this submission of Shri Rawant.   Shri Tarkase, learned counsel for the J.D. placed his  reliance on the decision in the case of Ram Ratan  Choudhary \026Vs- Upendra Chondru Das, A.I.R. 1923 Col.  288.   But, there was to stay is that case (sic) and hence  the ratio is not applicable to the facts of the present case.    Hence, there is no substance in the submission that the  execution is not within limitation.  Hence, I hold that the  execution is well within limitation as an order of stay to  the order of Hon\022ble High Court was operating.\024

8.      As noticed hereinbefore, a learned Single Judge of the Bombay High  Court, Nagpur Bench, Nagpur by reason of the impugned judgment dated  26.7.2005 dismissed the writ petition preferred by the appellant thereagainst  stating; \023The learned trial court while rejecting the application  has found that the judgment and decree dated 02/09/1983  had merged into the order of this Court while rejecting  review dated 01/07/1985.   He, therefore, submits that the  effect of the stay granted by the Apex Court was to stay  the execution of the decree and as such the execution of  the decree cannot be proceeded till vacation of the stay  by the Apex Court.  The execution of proceedings have  been filed within a period of 12 days from the date on  which the Apex Court had vacated the stay.

In that view of the matter, I do not find any perversity or  infirmity in the jurisdiction exercised by the learned trial  court so as to warrant any interference of this court in the  extraordinary jurisdiction under Article 227 of the  Constitution of India.  Hence the petition is rejected.\024

        9.      Mr. Satyajit A. Desai, learned counsel appearing on behalf of the  appellant in support  of the appeal would submit that the learned Courts

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below acted illegally and without jurisdiction in passing the impugned  judgment insofar as they failed to take into consideration that no order  having been passed by this Court staying execution of the proceedings or  operation of the judgment and decree, the impugned judgment must be set  aside being wholly unsustainable in law.        Mr. Makarand D. Adkar, learned counsel appearing on behalf of the  respondents, on the other hand, would submit that a composite decree having  been passed by the High Court and furthermore in view of the fact that this  Court in its order dated 21.3.1988 clearly directed computation of mesne  profit, the execution case was not barred by limitation.

       It was further submitted that the remedy of review being a statutory  remedy available to an aggrieved party, an Order passed in such proceedings  would merge with the main judgment and decree.

10.     The decree passed by the High Court in the aforementioned Second  Appeal No. 158 of 1972 is in two parts.  The Court granted a decree for  possession In respect of an area measuring 32 gunthas, as delineated in the  map Exh. 30, out of Survey No. 59/1 measuring 3 acres 12 gunthas.   Respondent was also found to be entitled to an enquiry in terms of Order 20  Rule 12 of the Code of Civil Procedure in regard to computation of mesne  profit from the date of the institution of the suit, till the date of the actual  delivery of possession.  It is therefore, not correct to contend that the decree  was a composite one.  The proceeding for computation of mesne profit  required to be undertaken in terms of Order 20 Rule 12 of the Code of Civil  Procedure was subject to institution of a proceeding but, by reason thereof,  the execution of the decree in regard to the possession of 30 gunthas of land  was not required to be awaited till the outcome.

11.     It is also incorrect to contend that in a case of this nature, namely  where a review petition was dismissed, the doctrine of merger will have any  application whatsoever.         It is one thing to say that the respondent was entitled to file an  application for review in terms of Section 114 read with Order 47 Rule 1 of  the Code of Civil Procedure, but it is another thing to say that the decree  passed in favour of the respondent merged with the order dismissing the  review application.   Matter might have been different, if the review  application had been allowed either wholly or in part in terms whereof an  application for execution of the decree could have been filed only in terms of  the modified decree.        It is not the contention of the respondent that any order of stay was  passed in the review application.  There was, thus, no bar in proceeding with  the execution case.  12.     Keeping in view the aforenoticed factual backdrop, we may notice the  law applicable herein.      Article 136 of the Limitation Act reads as under:-       

Description of  application  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

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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 or  execution of a decree  granting a perpetual  injunction shall not be  subject to any period of  limitation  

13.     The decree of possession passed in favour of the respondent became  enforceable immediately on its passing.  An execution petition therefor was  required to be filed within a period of 12 years.         In W.B. Essential Commodities Supply Corpn. v Swadesh Agro  Farming & Storage Pvt. Ltd., [(1999) 8 SCC 315], this Court opined;      \023(1) \023A decree or order is said to be enforceable  when it is executable.  For a decree to be executable, it  must be in existence.  A decree would be deemed to  come into existence immediately on the pronouncement  of the judgment.  But it is a fact of which judicial notice  may be taken of that drawing up and signing of the  decree takes some time after the pronouncement of the  judgment; the Code of Civil Procedure itself enjoins that  the decree shall be drawn up expeditiously and in any  case within 15 days from the date of the judgment.  If the  decree were to bear the date when it is actually drawn up  and signed then that date will be incompatible with the  date of the judgment.  This incongruity is taken care of  by Order 20 Rule 7 CPC which, inter alia, provides that  the decree shall bear the date and the day on which the  judgment was pronounced.\024

    (2)\023Rule 6-A enjoins that the last paragraph of the  judgment shall state in precise terms the relief which has  been granted by such judgment.  It has fixed the outer  time-limit of 15 days from the date of pronouncement of  the judgment within which the decree must be drawn up.   In the event of the decree not so drawn Rule 1 of Order  41 CPC without filing a copy of the decree appealed  against and for that purpose the last paragraph of the  judgment shall be treated as a decree.  For the purpose of  execution also, provision is made in clause (b) of the said  sub-rule which says that so long as the decree is not  drawn up, the last paragraph of the judgment shall be  deemed to be a decree.  Clause (b) has thus enabled the  party interested in executing the decree before it is drawn  up to apply for a copy of the last paragraph only, without  being required to apply for a copy of the whole of the  judgment.  It further lays down that the last paragraph of  the judgment shall cease to have the effect of the decree  for purposes of execution or for any other purposes when  the decree has been drawn up.\024

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    (3) \023It follows that the decree became enforceable  the moment the judgment is delivered and merely  because there will be delay in drawing up of the decree, it  cannot be said that the decree is not enforceable till it is  prepared.  This is so because an enforceable decree in  one form or the other is available to a decree-holder from  the date of the judgment till the expiry of the period of  limitation under Article 136 of the Limitation Act.\024 \024

       See also Hasham Abbas Sayyad Vs. Usman Abbas Sayyad and Ors.  [(2007) 2 SCC 355]  

14.     In Raghunath Rai Bareja and Anr. Vs. Punjab National Bank And  Others [(2006) 13 SCALE 511], this Court opined; \0239. Under Article 136 to the Schedule of the Limitation  Act, 1963 the period for applying for execution of any  decree is 12 years from the date when the decree  becomes enforceable.  Since in the present case the final  decree was passed and became enforceable on 15.1.1987,  the period of limitation for filing an execution application  expired on 15.1.1999\024

15.     The order of purported stay passed by this Court in terms of its Order  dated 21.3.1988 is also of no assistance to the plaintiff-decree holder.  The  Special Leave Petition was filed only against the Order dated 1.7.1985  refusing to review its judgment and decree dated 2.9.1983.  The stay of  operation of the Order dated 1.7.1985 for all intent and purport was  meaningless as the review petition already stood dismissed.

16.     Further direction of this Court that computation of mesne profit would  go on and the same would be deposited by the appellant is of no  consequence inasmuch as by reason thereof neither proceeding was stayed  nor the operation of the judgment and decree had been stayed.  In fact, it was  an order passed in favour of the decree holder.  The said direction did not  come in his way to execute the decree for possession.

17.     We, therefore, do not see any reason to hold that the said order could  be construed to be one passed in favour of the decree holder-respondent as  was contended or otherwise.

       Mr. Adkar relies upon the decision of this Court in Rekha Mukherjee  v. Ashis Kumar Das and Others [(2005) 3 SCC 427] which has no  application in the present case.          18.     We, therefore, are of the opinion that the Executing Court as well as  the High Court committed a manifest error in opining that the Execution  Petition was not barred by limitation.  The appeal is allowed.  The impugned  judgment is set aside with costs.  Counsel fee quantified at Rs. 5,000/-.