Patna High Court
Ram Murti Choudhary @ Ram Murati Prasad ... vs Ram Nihora Choudhary on 12 August, 2016
Author: Aditya Kumar Trivedi
Bench: Aditya Kumar Trivedi
Patna High Court CWJC No.22327 of 2012 1
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.22327 of 2012
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Ram Murti Choudhary @ Ram Murat Prasad Chaurasiya, S/O Late Gobind
Choudhary, R/O Mohalla- Jadua Barai Tola, P.S. + Town- Hajipur, District-
Vaishali
.... Plaintiff/ Judgment-debtor/ Petitioner/s
Versus
Ram Nihora Choudhary, S/O Sukhdeo Choudhary, R/O Mohalla- Jadhua Barari
Tola, P.S. + Town- Hajipur, District- Vaishali
.... .... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Mallika Mazumdar-Advocate
For the Respondent/s : Mr.
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CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
CAV JUDGMENT
Date: 12-08-2016
A complicated, complex, intricate issue having of great
significance has arisen as perceived after hearing rival contentions
with regard to ambit and scope of Article 136 of the Limitation Act.
2. Petitioner, who happens to be judgment-debtor, has
questioned proprietary of as well as continuance of Execution Case
No.02 of 2008 pending before the Subordinate Judge-VII, Vaishali at
Hajipur and for that, filed petition to dismiss the same, which has
been rejected by the learned lower Court vide order dated 28.09.2011,
on account thereof, the same has been challenged under instant
petition.
3. In order to have proper appreciation of the facts as well
as law, factual matrix of the present episode is to be taken note of.
Patna High Court CWJC No.22327 of 2012 2
Respondent/ plaintiff had filed Title Suit No.19 of 1987
asking for a relief for declaration of a conditional sale deed dated
28.01.1984executed by the defendant/ petitioner/ judgment-debtor in his favour to become an absolute, (B) if the Court finds any kind of impediment in granting the aforesaid relief then an alternative decree for Rs.8800/- (consideration amount) along with registration cost, stamp cost, against the defendant in favour of the plaintiff be passed, (C) cost of the suit, (D) any other relief or reliefs which the plaintiff is found entitled for, wherein the petitioner/ defendant/ judgment-debtor appeared, filed written statement, contested the suit and ultimately, vide judgment dated 30.06.1995/ decree dated 14.07.1995, the learned lower Court decreed the suit and further, allowed alternative relief directing the petitioner/ defendant/ judgment-debtor to pay Rs.8800/- along with registration cost, stamp cost. It is also apparent that Title Appeal No.33 of 1995 was filed on behalf of petitioner/ defendant/ judgment-debtor, which was admitted. While was called upon for hearing, on account of absence of petitioner/ defendant/ judgment- debtor/ appellant, appeal was dismissed in default on 14.03.2008 which, up-till-now did not restore. Furthermore, during continuance of aforesaid appeal, no stay was granted. Execution Case No.02 of 2008 has been filed on behalf of respondent/ plaintiff/ decree-holder on 05.06.2008 after dismissal of Title Appeal and as is evident, question Patna High Court CWJC No.22327 of 2012 3 of limitation was pointed out by the office at the time of checking and while admitting the same, vide order dated 12.06.2009, the learned lower Court had opined that in view of dismissal of appeal on 14.03.2008, no question of limitation survives. Subsequently thereof, after appearance of petitioner/ defendant/ judgment-debtor, the said issue was re-agitated and by the order impugned, the learned lower Court thwarted the objection stating that as appeal was filed, therefore, the decree became un-executable whereupon, the period during course of which appeal was pending would not be allowed to be calculated while considering the question of limitation in terms of Article 136 of the Limitation Act. The aforesaid finding is the subject matter of instant petition.
4. It has been submitted on behalf of petitioner that the finding recorded by the learned lower Court happens to be bad in law as well as on facts. Hence, is fit to be set aside. It has also been submitted that filing of an appeal happens to be statutory right. Mere filing is not going to annul the effect of the judgment and decree passed by the learned lower Court and further, would not barricade the decree-holder to initiate execution in terms thereof, and that happens to be reason behind presence of specific provision under Order-XLI, Rule-5 of the C.P.C. whereunder execution is to be stayed. That means to say, even considering the legal proposition that Patna High Court CWJC No.22327 of 2012 4 appeal happens to be continuance of suit, that does not evaporate the effect of judgment and decree till an order of stay in terms of Order- XLI, Rule-5 of the C.P.C. is found and further, in absence thereof, there happens to be no hurdle in getting the decree duly executed, subject to finding of the Appellate Court under the principle of merger.
5. It has also been submitted that there happens to be wrong notion as well as misconception of law that by way of filing appeal, the identity of judgment and decree of the lower Court found completely vanished. It has also been submitted that execution proceeding, initiated in terms of judgment and decree, in case so varied or set aside or confirmed during course of adjudication followed with judgment and decree of the appellate Court, then in that event, the execution proceeding would be guided by the ultimate result of the appeal, but such eventuality would not exonerate the decree holder to pursue with the execution. Therefore, the decree- holder is expected to choose the path of execution of the judgment and decree having in his favour without waiting for outcome of appellate Court's finding unless and until, having been stayed. To substantiate such plea, learned counsel for the petitioner relied upon Ratansingh: Appellant vs. Vijaysingh and others Respondents reported in 2001(1) B.B.C.J. 6 (SC).
Patna High Court CWJC No.22327 of 2012 5
6. Controverting the submission made on behalf of petitioner, learned counsel for the respondent/ plaintiff/ decree-holder has submitted that it has got no legal dearth and on account thereof, found to be contrary to the spirit of law. It has also been submitted that the learned lower Court had elaborately discussed the issue and gave its finding, which is duly supported with so many judicial pronouncements of our own High Court. Further elaborating his submission, learned counsel for the respondent has submitted that First Appeal happens to be continuance of suit. There happens to be no controversy over this legal proposition. Once it happens to be continuance of suit, then in that event, presence of judgment-debtor identified by the learned lower Court in its true legal fiction found to be non est and that continues till the date of final adjudication of the First Appeal. As the judgment and decree remains in abeyance on account of filing of appeal, then in that event, it happens to be un- executable. Being un-executable, it cannot be brought under motion. Its appearance is to be in terms of judgment and decree passed by the appellate Court.
7. As such, the learned lower Court had rightly perceived that on account of dismissal of appeal on 14.03.2008, the judgment and decree became executable since thereafter and on account thereof, the execution proceeding does not find hit by Article 136 of the Patna High Court CWJC No.22327 of 2012 6 Limitation Act.
8. Learned counsel also referred Jokhan Rai- Appellant vs. Baikunth Singh- Respondent reported in A.I.R. 1987 Patna 133 (F.B.), Uma Shankar Singh- Petitioner v. The State -Respondents reported in A.I.R. 2005 Patna 94, Babulal alias Chamari Mahto and others v. Biku Mahto reported in A.I.R. 2015 Patna 175.
9. Mere filing of an appeal against judgment and decree of the learned lower Court will not serve any purpose unless and until it culminates in proper adjudication by way of deciding the lis under its judgment followed with decree. However, during midst thereof, so many eventualities persist. The appeal may be rejected at the admission stage itself on account of limitation or other kind of legal infirmities. It may be dismissed after admission on account of non- compliance of Court's order in filing requisites etc. as well as having non-presence of appellant at the time when appeal is called out for hearing. These intermediary events could not be identified as a judgment and decree of the appellate Court and on account thereof, the question arose with regard to its impact over calculation of period in terms of Article 136 of the Limitation Act. In likewise manner, though pendency of an appeal without having stay would not barricade the decree-holder to launch execution as neither under Order XXI nor under Order XLI, the same is specified. This event again Patna High Court CWJC No.22327 of 2012 7 could not be allowed to persist awaiting final disposal of the appeal. At a glance, this prolusion found accostable, but really happens to be?
10. First of all, Article 136 of the Limitation Act has to be seen which runs as follows:-
Description of Period of Time from which period begins application limitation to run Twelve When the decree or order
136. For the execution years. becomes enforceable or where of any decree (other the decree or any subsequent than a decree granting order directs any payment of a mandatory money or the delivery of any injunction) or order of property to be made at a any Civil Court. 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.
So, from cursory perusal of Article 136 of the Limitation Act, it deals with the event of limitation to be counted for from the date when the decree became executable/ enforceable and nothing more and for that, also takes into consideration, the future event.
11. In Ratansingh Case as reported in 2001(1) B.B.C.J. 6 cited at the end of petitioner, it has been observed:-
"8. When is a decree becoming enforceable? Normally a decree or order becomes enforceable from its date. But cases are not unknown when the decree becomes enforceable on some Patna High Court CWJC No.22327 of 2012 8 future date or on the happening of certain specified events. The expression enforceable has been used to cover such decrees or orders also which become enforceable subsequently.
9. Filing of an appeal would not affect the enforceability of the decree, unless the appellate courtstays its operation. But if the appeal results in a decree that would supersede the decree passed by the lower court and it is the appellate court decree which becomes enforceable. When the appellate order does not amount to a decree there would be no supersession and hence the lower court decree continues to be enforceable.
10. A decree is defined in Section 2(2) of the CPC as under:
Decree 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 matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Sec. 144, but shall not include-
(a) any adjudication from which an appeal lies Patna High Court CWJC No.22327 of 2012 9 as an appeal from an order, or
(b) any order of dismissal for default.
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."
11. In order that decision of a court should become a decree there must be an adjudication in a suit and such adjudication must have determined the rights of the parties with regard to all or any of the matters in controversy in the suit and such determination must be of a conclusive nature. If those parameters are to be applied then rejection of application for condonation of delay will not amount to a decree. Consequently, dismissal of an appeal as time barred is also not a decree. We are aware that some decisions of the High Courts have taken the view that even Rejecting an appeal on the ground that it was presented out of time is a decree within the meaning of the said definition. We are also aware of the contrary decisions rendered by High Courts on the same point. Dealing with some of those decisions a Patna High Court CWJC No.22327 of 2012 10 Full Bench of the Calcutta High Court [S.P. Mitra, CJ, Sabyasachi Mukherjee, J (as he then was) and S.K. Datta, J] has held in Mamuda Khateen and ors. vs. Beniyan Bibi and ors. (AIR 1976 Calcutta 415) that if the application under Section 5 of the Limitation Act was rejected the resultant order cannot be decree and the order rejecting the memorandum of appeal is merely an incidental order. The reasoning of the Full Bench was that when an appeal is barred by limitation the appeal cannot be admitted at all until the application under section 5 of the Limitation Act is allowed and until then the appeal petition, even if filed, will remain in limbo. If the application is dismissed the appeal petition becomes otiose. The order rejecting the memorandum of appeal in such circumstances is merely an incidental order. We have no doubt that the decisions rendered by the High Courts holding the contrary view do not lay down the correct principle of law."
12. The vires of the Ratan Singh Case has been tested in Chandi Prasad and others-Appellant vs. Jagdish Prasad and others
-Respondents reported in (2004)8 SCC 724, it has been held:-
"19. Article 136 substantially reproduces the Patna High Court CWJC No.22327 of 2012 11 provisions of Section 48(1) of the Code of Civil Procedure which by reason of the Act stands repealed. In that view of the matter, the Parliament thought it fit to provide for one period of limitation for an application for execution in stead and place governing each of the several execution applications which the decree holder can make within a period of 12 years.
20. It is not disputed that all decrees; be it original or the appellate, are enforceable. Once a decree is sought to be enforced for the purpose of execution thereof irrespective of being original or appellate, the date of the decree or any subsequent order directing any payment of money or delivery of any property at a certain date would be considered to be the starting period of limitation.
21. It is axiomatic true that when a judgment is pronounced by a High Court in exercise of its appellate power upon entertaining the appeal and a full hearing in presence of both parties, the same would replace the judgment of the lower court and only the judgment of the High Court would be treated as final. [See U.J.S. Chopra Vs. State of Bombay, AIR 1955 SC 633] Patna High Court CWJC No.22327 of 2012 12
22. When an appeal is prescribed under a statute and the appellate forum is invoked and entertained, for all intent and purport, the suit continues.
MERGER:
23. The doctrine of merger is based on the principles of propriety in the hierarchy of justice delivery system. The doctrine of merger does not make a distinction between an order of reversal, modification or an order of confirmation passed by the appellate authority. The said doctrine postulates that there cannot be more than one operative decree governing the same subject matter at a given point of time.
24. It is trite that when an Appellate Court passes a decree, the decree of the trial court merges with the decree of the Appellate Court and even if and subject to any modification that may be made in the appellate decree, the decree of the Appellate Court supersedes the decree of the trial court. In other words, merger of a decree takes place irrespective of the fact as to whether the Appellate Court affirms, modifies or reverses the decree passed by the trial court.
When a special leave petition is dismissed summarily, doctrine of merger does not apply but Patna High Court CWJC No.22327 of 2012 13 when an appeal is dismissed, it does. [See V.M. Salgaocar and Bros. Pvt. Ltd. Vs. Commissioner of Income-tax, AIR 2000 SC 1623]
25. The concept of doctrine of merger and the right of review came up for consideration recently before this Court in Kunhayammed and Others Vs. State of Kerala and Another [(2000) 6 SCC 359] wherein this Court inter alia held that when a special leave petition is disposed of by a speaking order, the doctrine of merger shall apply stating:
"41. Once a special leave petition has been granted, the doors for the exercise of appellate jurisdiction of this Court have been let open. The order impugned before the Supreme Court becomes an order appealed against. Any order passed thereafter would be an appellate order and Would attract the applicability of doctrine of merger. It would not make a difference whether the order is one of reversal or of modification or of dismissal affirming the order appealed against. It would also not make any difference if the order is a speaking or non-speaking one. Whenever this Court has felt inclined to apply its mind to the merits of the order put in issue before Patna High Court CWJC No.22327 of 2012 14 it though it may be inclined to affirm the same, it is customary with this Court to grant leave to appeal and thereafter dismiss the appeal itself (and not merely the petition for special leave) though at times the orders granting leave to appeal and dismissing the appeal are contained in the same order and at times the orders are quite brief. Nevertheless, the order shows the exercise of appellate jurisdiction and therein the merits of the order impugned having been subjected to judicial scrutiny of this Court.
42. "To merge" means to sink or disappear in something else; to become absorbed or extinguished; to be combined or be swallowed up. Merger in law is defined as the absorption of a thing of lesser importance by a greater, whereby the lesser ceases to exist, but the greater is not increased; an absorption or swallowing up so as to involve a loss of identity and individuality. (See Corpus Juris Secundum, Vol. LVII, pp. 1067-68) 43. We may look at the issue from another angle. The Supreme Court cannot and does not reverse or modify the decree or order appealed against while deciding a petition for special leave to appeal. What is impugned before the Supreme Court can be reversed or Patna High Court CWJC No.22327 of 2012 15 modified only after granting leave to appeal and then assuming appellate jurisdiction over it. If the order impugned before the Supreme Court cannot be reversed or modified at the SLP stage obviously that order cannot also be affirmed at the SLP stage."
26. In Kunhayammed (supra), it was observed:
"12...Once the superior court has disposed of the lis before it either way - whether the decree or order under appeal is set aside or modified or simply confirmed, it is the decree or order of the superior court, tribunal or authority which is the final, binding and operative decree or order wherein merges the decree or order passed by the court, tribunal or the authority below. However, the doctrine is not of universal or unlimited application. The nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or which could have been laid shall have to be kept in view."
27. The said decision has been followed by this Court in a large number of decisions including Union of India and Others Vs. West Coast Paper Mills Ltd. and Another [(2004) 2 Patna High Court CWJC No.22327 of 2012 16 SCC 747].
28. However, when an appeal is dismissed on the ground that delay in filing the same is not condoned, the doctrine of merger shall not apply. [See Raja Mechanical Company Pvt. Ltd. Vs. Commissioner of Central Excise, ILR 2002 (1) Del. 33]"
and further, observed that in the facts and circumstances of the case, Ratan Singh Case was not applicable although the same was tested under Para-29 and 30 as follows:-
RATANSINGH:
"29. In Ratansingh (supra), possession of a property was obtained on 14.12.1970. The First Appeal thereagainst was dismissed on 1.8.1973. Execution Petition was filed on 24.3.1988, i.e., beyond the time fixed by the Act. The Second Appeal preferred by the judgment debtor was rejected having regard to the fact that the delay in filing the said appeal was not properly explained.
30. Upon analyzing when a decree or order becomes enforceable vis-`-vis the definition of 'decree' in Section 2(2) of the Code this Court observed that when a dismissal of an appeal takes place on the ground of its being time Patna High Court CWJC No.22327 of 2012 17 barred, no decree is passed."
13. As per Section 2(2) of the C.P.C., whereunder decree is defined, clearly excludes the order passed 'dismissed in default'. That means to say, wherever the suit or appeal is dismissed in default, then in that event, the judgment and decree is not found acknowledgeable to the extent of that order and on account thereof, by no stretch of imagination, it could be said adjudication of lis. That means to say, when there is no decree, then in that event, question of merger did not arise. When question of merger does not arise, then it is the judgment and decree of the lower Court, which could be found enforceable in terms of Article 136 of the Limitation Act.
14. In Rameshwar v. Bhuneshwar Singh reported in A.I.R. 1921 PC 31, it has been held:-
"They (their Lordships) are of opinion that in order to make the provisions of the Limitation Act apply, the decree sought to be enforced must have been in such a fall as to render it capable in the circumstances of being enforced."
15. In West Bengal Essential Commodities Supply Corporation, Appellant v. Swadesh Agro Farming and Storage PVt. Ltd. and another reported in A.I.R. 1999 SC 3421, after discussing in detail, it has been concluded:-
"20. Under the scheme of the Limitation Act, Patna High Court CWJC No.22327 of 2012 18 execution applications, like plaints have to be presented in the Court within the time prescribed by the Limitation Act. A decree holder does not have the benefit of exclusion of the time taken for obtaining the certified copy of the decree like the appellant who prefers an appeal, much less can he claim to deduct time taken by the Court in drawing up and signing the decree. In this view of the matter, the High Courts of Patna and Calcutta in Sri Chandra Mouli Deva v. Kumar Binoya Hand Singh & Ors., AIR (1976) Patna 208 and Sunderlal & Sons v. Yagendra Nath Singh & Anr., AIR (1976) Calcutta 471 have correctly laid down the law; the opinion to the contra expressed by the High Court of Calcutta in Ram Krishna Tarafdar v. Nemai Krishna Tarafdar & Ors. AIR (1974) Calcutta 173 is wrong. Section 5 of the Limitation Act has no application; Section 12(2) of the Limitation Act is also inapplicable to an execution petition. If the time is reckoned not from the date of the decree but from the date when it is prepared, it would amount to doing violence to the provisions of the Limitation Act as well as of Order XX and order XXI Rule 11 C.P.C. which is clearly impermissible."Patna High Court CWJC No.22327 of 2012 19
16. In Manohar S/o Shankar Nale and others versus Jaipal Sing S/o ShivLal Sing Rajput reported in (2008) 1 SCC 520, it has been held:-
"14. 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.
15. 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.
18. 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.
19. In W.B. Essential Commodities Supply Patna High Court CWJC No.22327 of 2012 20 Corpn. v Swadesh Agro Farming & Storage Pvt. Ltd., [(1999) 8 SCC 315], this Court opined;
(1) "7. ...A 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."(SCC p. 321, para 7) (2) "9. Rule 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 Patna High Court CWJC No.22327 of 2012 21 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." (SCC pp. 321-322, para 9) (3) "10. It 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 Patna High Court CWJC No.22327 of 2012 22 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." (SCC p. 322, para 10) (See also Hasham Abbas Sayyad Vs. Usman Abbas Sayyad and Ors. [(2007) 2 SCC 355]
20. In Raghunath Rai Bareja and Anr. Vs. Punjab National Bank And Others [(2006) 13 SCALE 511], this Court opined: (SCC p. 237, para 9) "9. 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."
17. In Bimal Kumar and another v. Shakuntala Debi and others reported in (2012) 3 SCC 548, it has been held:-
"40. We have already held that the decree was a final decree. Therefore, it was immediately executable. The question, thus, would be `was the time arrested?' On a query being made, it was fairly conceded at the Patna High Court CWJC No.22327 of 2012 23 Bar that at no point of time, there was any order by any court directing stay of operation of the judgment and decree passed in P.S. No. 131 of 1962. The question that emanates for consideration is whether the period during which the suit and appeal preferred by the appellants remained pending is to be excluded for the purpose of limitation.
41. In this context, we may usefully refer to the dictum in Ratan Singh v. Vijay Singh and Ors. (2001)1 SCC 469, wherein, while dwelling upon the concept of enforceability of a decree and the effect of an order of stay passed by the appellate court, the Bench stated thus: (SCC p. 473, paras 8-9) "8. When is a decree becoming enforceable? Normally a decree or order becomes enforceable from its date. But cases are not unknown when the decree becomes enforceable on some future date or on the happening of certain specified events. The expression "enforceable" has been used to cover such decrees or orders also which become enforceable subsequently.
9. Filing of an appeal would not affect the enforceability of the decree, unless the Patna High Court CWJC No.22327 of 2012 24 appellate court stays its operation. But if the appeal results in a decree that would supersede the decree passed by the lower court, it is the appellate court decree which becomes enforceable. When the appellate order does not amount to a decree there would be no supersession and hence the lower court decree continues to be enforceable."
42. In Ram Bachan Rai (2006) 9 SCC 446, the two-Judge Bench took note of the fact that an application under Order IX Rule 13 for setting aside the ex parte decree was dismissed which was assailed in a miscellaneous appeal and ultimately in a civil revision. At no stage, stay was granted by any court. The decree holders therein filed an application for execution after 12 years. Regard being had to the same, it was held that the execution proceeding was barred by limitation.
43. In this context, it is fruitful to refer to the pronouncement in Manohar v. Jaipalsing (2008) 1 SCC 520. In the said case, it has been held as follows: (SCC p. 527, paras 21-22) "21. The order of purported stay passed by this Court in terms of its Order dated 21.3.1988 Patna High Court CWJC No.22327 of 2012 25 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.
22. 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 had the operation of the judgment and decree 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." (emphasis supplied)
44. In the case at hand, the compromise decree had the status of a final decree. The latter suit filed by the appellants was for partition and declaring the ex parte compromise decree as null and void. As has already been stated, Patna High Court CWJC No.22327 of 2012 26 there was no stay of the earlier judgment or any proceedings emanating therefrom. In the absence of any interdiction from any court, the decree-holder was entitled to execute the decree. It needs no special emphasis to state that there was no impediment or disability in the way of the respondents to execute the decree but the same was not done. Therefore, the irresistible conclusion is that the initiation of execution proceedings was indubitably barred by limitation.
45. Thus analyzed, the reasons ascribed by the learned single Judge are absolutely unsustainable. The period of limitation stipulated under Article 136 of the Act could not have been condoned as has been so presumed by the learned single Judge. The reliance placed on the decision in Bharti Devi (supra) is totally misconceived inasmuch as in the said case, the execution proceeding was initiated for permanent injunction. No exception can be taken to the same and, therefore, reliance placed on the said decision is misconceived."
18. In Nagendra Nath Dey and another-Appellants v. Patna High Court CWJC No.22327 of 2012 27 Suresh Chandra Dey and others-Respondents reported in A.I.R. 1932 Privy Council 165, it has been held:-
"Their Lordships think that nothing would be gained by discussing these varying authorities in detail. They think that the question must be decided upon the plain words of the article: "
where there has been an appeal," time is to ran from the date of the decree of the appellate Court. There is, in their Lordships' opinion, no warrant for reading into the words quoted any qualification either as to the character of the appeal or as to the parties to it; the words mean just what they say. The fixation of periods of limitation must always be to some extent arbitrary, and may frequently result in hardship. But in construing such provisions equitable considerations are out of place, and the strict grammatical meaning of the words is, their Lordships think, the only safe guide. It is at least an intelligible rule that so long as there is any question sub judice between any of the parties, those affected shall not be compelled to pursue the so often thorney path of execution, which, if the final result is against them, may lead to no advantage. Nor in such a case as this is the Patna High Court CWJC No.22327 of 2012 28 judgment-debtor prejudiced. He may indeed obtain the boon of delay, which is so dear to debtors, and if he is virtuously inclined there is nothing to prevent his paying what he owes into Court, But whether there be or be not a theoretical justification for the provision in question, their Lordships think that the words of the article are plain, and that there having been in the present case an appeal from the mortgage decree of Juno 24, 1920, time only ran against the appellants from August 24, 1922, the date of the appellate Court's decree. They are, therefore, in agreement upon this point with the Subordinate Judge, and they think that the order passed by him on 4th August 1924 was right."
19. In Devi Kant Mishra and others, Appellants v. Shri Kant Pathak and others, Respondents reported in A.I.R. 1972 Patna 429, it has been held:-
"4. The first contention, as noted above, cannot be accepted. A decision of the Calcutta High Court in the case of Kishori Mohan Pal v. Provash Chandra, AIR 1924 Cal 351 is directly on this point. In that case a decree in a partition suit was passed in the year 1914 but as there was delay in the filing of stamp duty, the decree was Patna High Court CWJC No.22327 of 2012 29 drawn up in 1920. An application for execution of the decree was filed the same year. It was held that the decree was of the year 1914 when the judgment was pronounced, and the fact that the decree was actually drawn up later would not affect the date of the decree. Such is the position in this case as well. Here also, on 25th January, 1946 the judgment was delivered allotting specific portions of the suit properties to different parties. The date of decree will, therefore, be 25th January, 1946 and not 28th August, 1965 when the decree was actually drawn up. If that is so, the conclusion of the Court below that the decree was barred by limitation cannot be said to be erroneous. The Calcutta case referred to above has been approved by this Court in the case of Hakim Mohd. Idris v. Mohd. Kabir, AIR 1950 Pat 524 as also in the case of Mohd. Sadique Mian v. Mahabir Sao, AIR 1942 Pat 410."
20. In Sri Chandra Mouli Deva, Appellant v. Kumar Binoya Nand Singh and others, Respondents reported in A.I.R. 1976 Patna 208, it has been held:-
"5. Chitaley and Rao in their Limitation Act, 1963, Vol. II at page 1870 under the heads 'objects and reasons' have quoted it as follows :-- Patna High Court CWJC No.22327 of 2012 30
"Existing Article 182 has been a fruitful source of litigation end therefore the proposed Article 135, (now Article 136) in lieu thereof, provides that the maximum period of limitation for the execution of a decree or order of any civil court shall be 12 years from the date when the decree or order became enforceable (which is usually the date of the decree or order) or, where the decree or subsequent order directs any payment of money or delivery of any property to be made at a certain date or at recurring periods, from the date of the default in making the payment or delivery in respect of which the applicant seeks to execute the decree or order. There is no reason why a decree should be kept alive for more than 12 years, Section 48 of the Civil Procedure Code, 1908, provides that a decree ceases to be enforceable after 12 years. In England also the time fixed for enforcing a judgment is 12 years. Where, however, the judgment-debtor has by fraud or force prevented the execution of a decree within the prescribed period, suitable provisions for extending the period are being made in Clause 16 (now Section 17) of the Bill on the lines of Section 48 (2) of the Code of Civil Patna High Court CWJC No.22327 of 2012 31 Procedure, 1908.
Existing Article 183, which makes special provision for decrees and orders of courts established by Royal Charter, is no longer necessary.
It is also provided that the period of 12 years will not apply to decrees granting perpetual injunctions."
6. The decision in the case of Biswapali Dey v. Kennsington Stores (AIR 1972 Cal 172) is the only case cited at the Bar which has noticed the expression 'when the decree or order became enforceable'. According to the learned Judge, who decided the case the word 'enforceable' has been used in the context of such decrees or orders whose operation has been kept in abeyance by the language used in the said decrees or orders themselves. Usually decrees or orders become enforceable immediately after they are made. But cases are not unknown when they become enforceable on some future date or on the happening of certain specified event. It appears to me that the expression 'enforceable' has been used to cover such decrees or orders also which are not enforceable at the time they Patna High Court CWJC No.22327 of 2012 32 are made but become enforceable subsequently; the expression 'enforceable' obviously embraces such decrees and orders which are enforceable immediately after they are made and the period of 12 years in such cases begins to run from the day the decrees or orders are made. This brings us to the next question as to what is the date of the decree.
7. The decree comes into existence as soon as the judgment is pronounced and not on the day when it is .sealed and signed in accordance with Section 33 and Order XX. Rule 6 of the Code of Civil Procedure. Rule 7 of Order XX of the Code of Civil Procedure provides that the decree shall bear the date the day on which the judgment was pronounced. It is on account of this legel fiction contained in Rule 7 of Order XX of the Code of Civil Procedure that the date of the decree relates back to the day on which the judgment was pronounced. I am supported in my view by a decision of this Court in the case of Rajeshwari Rai v. Shankar Rai, 1962 BLJR 434 = (AIR 1962 Pat 398).
8. Next question that arises for consideration is as to whether the decree could be executed Patna High Court CWJC No.22327 of 2012 33 without the signing and sealing of the decree in a formal way. The answer to this question is given under Rule 11 of Order XXI of the Code of Civil Procedure, According to Sub-rule (1) of Rule 11, where the decree is for payment of money, on an oral prayer made by the decree-holder, the court may order immediate execution of the decree by the arrest of the judgment-debtor prior to the preparation of a warrant if he is within the precincts of the Court. This sub-rule leads to the inference that action can be taken prior to the preparation of the decree under Order XX, Rule 6 of the Code of Civil Procedure. Again Sub-rule (2) of the Rule provides that every application for execution or a decree shall be in writing signed and verified by the applicant or by some other person proved to the satisfaction of the court to be acquainted with the facts of the case and shall contain in a tabular form specified particulars. It is not necessary under this sub-rule to file certified copy of the decree. The court may, without the certified copy of the decree, proceed with execution. It is only under Sub-rule (3) that the court may require the applicant to produce a certified copy of the decree. Unless an order is made under Sub-rule (3) calling upon the Patna High Court CWJC No.22327 of 2012 34 applicant to produce certified copy of the decree, the execution has to proceed on the basis of an application filed under Sub-rule (2). In AIR 1972 Cal 172 (supra) and in the case of Lal Baij-nath Frasad v. Nursingdas Guzrati (AIR 1951 Cal 3), it has been held that the time taken in preparation of the decree cannot be excluded for the purpose of limitation. I am in full agreement with the law laid down in these two cases and as a general proposition of law, it has to be held that he time taken in preparation of the formal decree cannot be excluded for the purpose of Article 136 of the Act. This proposition, however, is subject to the condition that the decree for realisation of money or any part thereof has been ascertained in the judgment. In case whole or any part thereof has been mentioned in the judgment then whole of the decree or part of the decree, as the case may be, becomes enforceable immediate-ly on the pronouncement of the judgment (which is the date of the decree). But where the amount decreed or any part t:hereof has to be ascertained subsequent to the pronouncement of the judgment then the whole or part of the decree which has to be ascertained subsequently remains in abeyance till the amount Patna High Court CWJC No.22327 of 2012 35 is ascertained. A similar view was taken by the Calcutta High Court in the case of Ramnath Das v. Saha Chowdhury & Co. Ltd. (AIR 1974 Cal
246) where it was held that the decree so far as it related to the payment of cost was not enforceable until the amount of cost w.as ascertained upon taxation and directions contained therein to the taxing officer were complied with. Now, therefore, the judgment and the decree which the appellant-decree-holder wanted to execute will have to be examined."
21. In Hameed Joharan (D) and others, Appellants, v. Abdul Salam (D) by L. Rs. and others, Respondents reported in A.I.R. 2001 SC 3404, it has been held:-
"9. As noticed earlier in this judgment, Article 136 of the Limitation Act 1963 being the governing statutory provision, prescribes a period of twelve years when the decree or order becomes enforceable. The word enforce in common acceptation means and implies 'compel observance of (vide Concise Oxford Dictionary) and the Black's Law Dictionary 'enforce' has been attributed a meaning 'to give force or effect to; to compel obedience to' and 'enforcement has been defined as 'the act or process of compelling Patna High Court CWJC No.22327 of 2012 36 compliance with a law, mandate or command'. In ordinary parlance 'enforce' means and implies 'compel observance'. Corpus Juris Secundum attributes the following for the word 'enforce'. "ENFORCE. In general, to cause to be executed or performed, to cause to take effect, or to compel obedience to, as to enforce laws or rules; to control; to execute with vigor; to put in execution; to put in force; also to exact, or to obtain authoritatively. The word is used in a multiplicity of ways and is given many shades of meaning and applicability, but it does not necessarily imply actual force or coercion. As applied to process, the term implies execution and embraces all the legal means of collecting a judgment, including proceedings supplemental to execution.
The past tense or past participle "enforced" has been said to have the same primary meaning as "compelled".
10. The language used by the legislature in Article 136 if read in its proper perspective to wit: when the decree or order becomes enforceable must have seen to clear up any confusion that might have arisen by reason of the user of the expression 'the date of the decree or Patna High Court CWJC No.22327 of 2012 37 order which was used in the earlier Act. The intention of the legislature stands clearly exposed by the language used there n viz., to permit twelve year certain period from the date of the decree or order. It is in this context that a decision of the Calcutta High Court in the cast:
of Biswapati Dev v. Kennsington Stores and Ors., AIR (1972) Calcutta P2) wherein the learned Single Judge in no uncertain terms expressed his opinion that there cannot be any ambiguity in the language used in the third column and the words used therein to wit : 'when the decree or order becomes enforceable' should be read in their literal sense. 'We do feel it expedient to lend our concurrence to such an observation of the learned Single Judge of the Calcutta High Court. The requirement of the Limitation Act in the matter of enforcement of a decree is the date on which the decree becomes enforceable or capable of being enforced-what is required is to assess the legislative intent and if the intent appears to be otherwise clear and unambiguous, question of attributing a different meaning other than the literal meaning of the words used would not arise. It is in this context, we also do feel it inclined to record our concurrence to the Patna High Court CWJC No.22327 of 2012 38 observations of the full Bench of the Bombay High Court in Subhash Ganpatrao Buty v. Maroti Krishnaji Dorlikar, AIR (1975) Bom. 244. The Full Bench in the decision observed :
"......it is the duty of the Court to interpret the language actually employed and to determine the intention of the legislature from such language and since there is no ambiguity about the language actually employed, neither the recommendation of the Law Commission nor the a ms and object as set out in the Statement of Objects and reasons can be brought in and or can be allowed to influence the natural and grammatical meaning of the Explanation as enacted by the Parliament".
22. In Jokhan Rai v. Baikunth Singh reported in A.I.R. 1987 Patna 133, the consideration before the Full Bench was relating to counting of period, is to be the date of original decree or in the event of an appeal that an appellate decree as well and the same was decided holding that the period limitation in terms of Article 136 of the Limitation Act should commence from the date of the appellate Court's decree in the event of an appeal and not that of the original decree. For better appreciation, relevant para is quoted below:-
"7. It seems to me that the question here is so Patna High Court CWJC No.22327 of 2012 39 well covered by principle; language of the statute; and binding precedent; that it would be somewhat wasteful to launch on too elaborate a dissertation. Nevertheless the salient and axiomatic aspects of the issue may be briefly recapitulated. Perhaps what first meets the eye is the fact that the language of Article 136 talks of a decree and its enforceability. It does not limit or constrict itself to the original decree alone. The words employed are "any decree" and "when the order becomes enforceable". To read Article 136 as confined to the decree of the trial Court or the original decree alone would be doing violence to the language of the statute by unceremoniously inserting the words "trial Court" or 'original' along with the words "decree or order" wherever used in the said article. Thus, even on a plain and meaningful reading of Article 136 as now enacted, it is manifest that it cannot be read as a decree of the trial Court or the original decree alone. Consequently, the somewhat hypertechnical harping of the learned counsel for the petitioner on the stand that the word 'decree' must be construed as the original decree or that of the trial Court must be categorically rejected." Patna High Court CWJC No.22327 of 2012 40
23. In Uma Shankar Sharma v. the State reported in A.I.R. 2005 Patna 94 wherein the Second Appeal before the High Court was dismissed on 16.09.1988 on account of non-compliance of Court's order. However, Execution Case No.05 of 1998 was filed on 24.09.1998 whereupon the question arose regarding limitation in terms of Article 136 of the Limitation Act and after dealing the relevant provisions as well as the conduct of the parties, it was observed that counting should be read since 16.09.1988, the date of dismissal of Second Appeal. For better appreciation, relevant Para is quoted below:-
"8. Article 136 of the Limitation Act, 1963, specifically provides that the time from which period of limitation begins to run is when the decree of order becomes enforceable. In a case where the decree of the Lower Courts is challenged in Second Appeal which results into a decree passed by this Court, then the decree of the Courts below merge with the judgment and decree of the Second Appeal and the decree becomes enforceable and the period of limitation under Article 136 of the Limitation Act is to be counted from the date of the judgment in the Second appeal. Even when the appeal is dismissed on any preliminary matter or is Patna High Court CWJC No.22327 of 2012 41 dismissed for default, it would naturally; amount to confirmation of the judgments and degree of the Lower Courts, which would attain finality only thereafter and hence the final decision would be that of the second appellate Court and the decree of the Courts below could be legally treated as enforceable only thereafter. It would thus be absolutely immaterial that there was no order in the Second Appeal staying execution of the decree and that the decree of the Courts below could have been executed by the Decree- holder immediately after the said decree.
9. The view of Sir Dinesh Mulla, which was agreed to by Lord Blanesburgh. Lord Tomlin, Lord Russel and Sir George Lownders while sitting in Privy Council (AIR 1932, PC 165) is very clear in this regard that there was no definition of appeal in the Code of Civil Procedure but there is no doubt that any application by a party to an appellate Court asking it to set aside or revise a decision of the subordinate Court is an appeal within the ordinary acceptation of the term and that it is no less an appeal because it is irregular or incompetent.Patna High Court CWJC No.22327 of 2012 42
10. Furthermore, so long as there is any question sub-judice between the parties, those affected shall not be compelled to pursue the so often thorny path of execution which, if the final result is against them, may lead to any disadvantage. Nor in such case as this is the judgment-debtor prejudiced as he has indeed obtained a boon of delay which is so dear to debtors and if the judgment-debtor is virtuously inclined, there is nothing to prevent his paying what he owes into Court, specially when in this case the judgment-debtor is a welfare State.
24. The same view has also been followed in Babulal alias Chamari Mahto and others v. Biku Mahto reported in A.I.R. 2015 Patna 175 wherein Uma Shankar Sharma (Supra) Case has been relied upon which is as follows:-
"7. After condensing the rival submissions on behalf of the parties, the perceptible note of discord between them is the starting point of limitation as prescribed under Article 136 of the Limitation Act in the present facts and circumstances. It is not in dispute that the petitioners filed First Appeal No. 69 of 1988 against the final decree dated 18.12.1987. The first appeal came to be dismissed on Patna High Court CWJC No.22327 of 2012 43 21.09.2010. The execution case has been filed on 12.01.2012. It is thus apparent that the execution case has been filed within 12 years as prescribed under Article 136 of the Limitation Act from the date of dismissal of the first appeal. The question as to whether the date of disposal of the appeal against the decree, sought to be executed, would be the starting point of limitation for filing the execution case squarely came up for consideration before a Full Bench of this Court in the case of Jokhan Rai Vs. Baikunth Singh 1987 PLJR 172. In the said case, the appellate court granted the decree on 23.12.1969 after setting aside the dismissal of the suit. The second appeal against the judgment and decree of the appellate court came to be dismissed on 21.03.1980. The decree holder thereafter filed execution case in the Patna High Court C.R. No.72 of 2013 dt.08-05-2015 year 1983 for execution of the decree dated 23.12.1969. The objection by the judgment debtor in the said case for dismissal of the execution case as barred by limitation was rejected by the executing court. In this backdrop, the question whether the terminus a quo for computing the Patna High Court CWJC No.22327 of 2012 44 period of limitation of 12 years under Article 136 of the Indian Limitation Act is the date of the original decree alone or in the event of an appeal that of the appellate decree as well, on reference, came to be considered by the aforesaid full Bench. Their Lordships held as follows:-
"14.....To sum up, the answer to the question posted at the outset is rendered in the terms that the terminus a quo for computing the limitation of twelve years under Article 136 of the Act is the date of appellate decree in the event of an appeal and not that of the original decree.
15. Once it is held as above, it is plain that there is no merit in this revision petition. The learned Execution Munsif rightly held that time was to run from the date of the dismissal of the appeal by the High Court on the 21st of March, 1980. The execution application was thus plainly within time....."
8. In a later decision in Uma Shankar Sharma Vs. The State of Bihar 2005 (1) PLJR 541 on the similar facts the same view was reiterated holding as follows:
Patna High Court CWJC No.22327 of 2012 45
"8. Article 136 of the Limitation Act, 1963, specifically provides that the time from which period of limitation begins to run is when the decree or order becomes enforceable. In a case where the decree of the lower courts is challenged in section Appeal which results into a decree passed by this Court, then the decree of the courts below merge with the Judgment and decree of the Second Appeal and the decree becomes enforceable and the period of limitation under Article 136 of the Limitation Act is to be counted from the date of Judgment in the Second Appeal. Even when the appeal is dismissed on any preliminary matter or is dismissed for default, it would naturally amount to confirmation of the Judgment and decree of the lower courts, which would attain finality only thereafter and hence the final decision would be that of the second appellate court and Patna High Court C.R. No.72 of 2013 dt.08-05-2015 the decree of the courts below could be legally treated as enforceable only thereafter. It would thus be absolutely immaterial that there was no order in the second appeal staying execution of the decree and that the decree of the courts below could Patna High Court CWJC No.22327 of 2012 46 have been executed by the decree- holder immediately after the said decree......"
9. At this juncture, it would be pertinent to mention that in none of the decisions of the Apex Court in the cases of Hameed Joharan (supra), Ratan Singh (supra) and Dr. Chiranji Lal (supra), as relied by the learned counsel for the petitioners, the issue pertaining to the date of starting point of limitation under Article 136 of the Indian Limitation Act in the event of appeal against the decree under execution came up directly for consideration or had been decided. No authoritative decision taking the contrary view to the law laid down by the Full Bench in Jokhan Rai (supra) has been brought to the notice of the court on behalf of the petitioners."
25. Same view is also found in Nawal Kishore Patel v. Most. Indrapari Devi reported in 2002(4) P.L.J.R. 272 wherein the situation has been perceived in the following way:-
"15. However when the appeal is not disposed of on merit but dismissed on the ground of limitation, for default, or non-deposit of printing cost or like other reasons. In such a situation, the question arises as to whether the decree of the Patna High Court CWJC No.22327 of 2012 47 trial Court is enforceable or by virtue of the matter has been taken up in appeal, it is an order of the appellate Court which will be treated as a decree affirming the decree of the trial Court and will be treated to be enforceable for the purpose of counting the period of limitation under Article 136 of the Limitation Act."
and after discussing the relevant provisions of law, it has been held:-
"20. It is well settled that there should be liberal and broad based construction of the provision of the Limitation Act. There should be no rigid and narrow interpretation. However in interpreting the statutes dealing with the limitation, the consideration of hardships are out of place. However, the court cannot ignore the fact that when the judgment and decree is rendered by the trial Court and the matter is sub- judice between the parties before the appellate Court, the decree holders generally do not pursue thorny path of execution for the reason that if the final result goes against them, they will be put into disadvantageous position. Generally they await the result of the appeal which is filed by the losing party. Life of law is reason and that comes from experience. The aforesaid aspect of the matter cannot be ignored while interpreting Patna High Court CWJC No.22327 of 2012 48 the provision of Article 136 of the Limitation Act. If the narrow interpretation to the effect that if the appeal is dismissed on technical ground is given and the decree or order enforceable is not treated to that of the appellate court against the judgment debtor, then that will be boon to the dishonest judgment debtor who will file the appeal and allow it to remain pending for several years and get it dismissed for default or on the ground of limitation after expiry of the period of limitation for execution of decree, the result would be that the successful party would be loser. It is a known fact that disposal of the appeal including disposal of interlocutory matters like, court fee, limitation, take time and if narrow interpretation would be given it will be boon for the judgment debtors."
26. In Deep Chand and others v. Mohan Lal reported in (2000)6 SCC 259, it has been held:-
"5. 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 Patna High Court CWJC No.22327 of 2012 49 permitted to be filed but only within the period of limitation provided by law. Article 136 provides:
"Description of suit Period of Time from which period limitation begins to run For the execution of any decree Twelve years When the decree or (other than a mandatory order becomes injunction) or order of any Civil enforceable or where the Court 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
Patna High Court CWJC No.22327 of 2012 50
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, Patna High Court CWJC No.22327 of 2012 51 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.
6. It has been held in Akshoy Kumar Debi v. Nalini Ranjan Mukherjee [AIR 1950 Cal 493]; Kotta Annapurnamma v. Makku Venkamma [AIR 1938 Mad.323] and Mst. Parmeshri & Ors. vs. Mst. Atti [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 interpretation, to strain the language of Article 182 in favour of a judgment-debtor who has not paid his just debt."
27. In Shyam Sundar Sharma vs. Pannalal Jaiswal & others reported in (2005) 1 SCC 436, it has been held:-
"8. The first question to be considered is Patna High Court CWJC No.22327 of 2012 52 whether an appeal accompanied by an application for condoning the delay in filing the appeal is an appeal in the eye of law, when the application for condoning the delay in filing the appeal is dismissed and consequently the appeal is dismissed as being time barred by limitation, in view of Section 3 of the Limitation Act. There was conflict of views on this question before the High Courts. But the Privy Council in Nagendra Nath Dey vs. Suresh Chandra Dey ( 59 Indian Appeals 283) held, "There is no definition of appeal in the Civil Procedure Code, but their Lordships have no doubt that any application by a party to an appellate Court, asking it to set aside or revise a decision of a subordinate court, is an appeal within the ordinary acceptation of the term and that it is no less an appeal because it is irregular or incompetent."
8.1 These observations were referred to with approval by this Court in Raja Kulkarni and others vs. The State of Bombay ( 1954 SCR
384).
9. The specific question involved, came to be considered by this Court in Messrs Mela Ram Patna High Court CWJC No.22327 of 2012 53 and Sons vs. The Commissioner of Income Tax, Punjab ( 1956 SCR 166 ). This Court held that an appeal presented out of time is an appeal and an order dismissing it as time barred is one passed in an appeal. This Court referred to and followed the view taken by the Privy Council and by this Court in the two respective decisions above referred to. This Court quoted with approval the observations of Chagla C.J. in K.K. Porbunderwalla vs. Commissioner of Income Tax ( 1952 ) 21 ITR 63 ) to the following effect:
"[A] Although the Appellate Assistant Commissioner did not hear the appeal on merits and held that the appeal was barred by limitation his order was under Section 31 and the effect of that order was to confirm the assessment which had been made by the Income-tax Officer."
9.1 In Sheodan Singh vs. Daryao Kunwar ( AIR 1966 SC 1332 ) rendered by four learned Judges of this Court, one of the questions that arose was whether the dismissal of an appeal from a decree on the ground that the appeal was barred by limitation was a decision in the Patna High Court CWJC No.22327 of 2012 54 appeal. This Court held: (SCR pp. 308 H-309B) "We are therefore of opinion that where a decision is given on the merits by the trial court and the matter is taken in appeal and the appeal is dismissed on some preliminary ground like limitation or default in printing, it must be held that such dismissal when it confirms the decision of the trial court on the merits, itself amounts to the appeal being heard and finally decided on the merits whatever may be the ground for dismissal of the appeal." 9.2 In Board of Revenue vs. M/s Raj Brothers Agencies Etc. (1973 (3) SCR 492 ), this Court approved the decision of the Madras High Court which had applied the principle stated in Messrs Mela Ram and sons (1956 SCR 166).
10. The question was considered in extenso by a Full Bench of the Kerala High Court in Thambi vs. Mathew (1987 (2) KLT 848).
Therein, after referring to the relevant decisions on the question it was held that an appeal presented out of time was nevertheless an appeal in the eye of law for all purposes and an order dismissing the appeal was a decree that could be the subject of a second appeal. It Patna High Court CWJC No.22327 of 2012 55 was also held that Rule 3A of Order XLI introduced by Amendment Act 104 of 1976 to the Code, did not in any way affect that principle. An appeal registered under Rule 9 of Order XLI of the Code had to be disposed of according to law and a dismissal of an appeal for the reason of delay in its presentation, after the dismissal of an application for condoning the delay, is in substance and effect a confirmation of the decree appealed against. Thus, the position that emerges on a survey of the authorities is that an appeal filed along with an application for condoning the delay in filing that appeal when dismissed on the refusal to condone the delay is nevertheless a decision in the appeal.
11. Learned counsel for the appellant relied on the Full Bench decision of the Calcutta High Court in Mamuda Khateen and others vs. Beniyan Bibi and others ( AIR 1976 Calcutta 415 ) to contend that an order rejecting a time barred memorandum of appeal consequent upon refusal to condone the delay in filing that appeal was neither a decree nor an appellable order. On going through the said decision it is seen that though the Full Bench referred to the Patna High Court CWJC No.22327 of 2012 56 divergent views on that question in the Calcutta High Court prior to the rendering of the decision of this Court in Messrs Mela Ram and Sons (supra) had not considered the decisions of this Court in Raja Kulkarni (supra) and in Messrs Mela Ram and Sons (supra), in coming to that conclusion. In fact it is seen that there was no discussion on that aspect as such, though there was a reference to the conflict of views in the decisions earlier rendered by the Calcutta High Court. Since the ratio of that decision runs counter to the principle laid down by this Court in Messrs Mela Ram and Sons (supra), obviously the same could not be accepted as laying down a correct law.
12. Learned counsel placed reliance on the decision in Ratansingh vs. Vijaysingh and others [(2001) 1 SCC 469 ] rendered by two learned Judges of this Court and pointed out that it was held therein that dismissal of an application for condonation of delay would not amount to a decree and, therefore, dismissal of an appeal as time barred was also not a decree. That decision was rendered in the context of Article 136 of the Limitation Act, 1963 and in the light of the departure made Patna High Court CWJC No.22327 of 2012 57 from the previous position obtaining under Article 182 of the Limitation Act, 1908. But we must point out with respect that the decisions of this Court in Messrs Mela Ram and Sons and Sheodan Singh (supra) were not brought to the notice of their Lordships. The principle laid down by a three Judge Bench of this Court in M/s Mela Ram and Sons (supra) and that stated in Sheodan Singh (supra) was, thus, not noticed and the view expressed by the two Judge Bench, cannot be accepted as laying down the correct law on the question. Of course, their Lordships have stated that they were aware that some decisions of the High Courts have taken the view that even rejecting an appeal on the ground that it was presented out of time is a decree within the definition of a decree obtaining in the Code. Thereafter noticing the decision of the Calcutta High Court above referred to, their Lordships in conclusion apparently agree with the decision of the Calcutta High Court. Though the decision of the Privy Council in Nagendra Nath Dey vs. Suresh Chandra Dey (supra) was referred to, it was not applied on the ground that it was based on Article 182 of the Limitation Act, 1908, and Patna High Court CWJC No.22327 of 2012 58 there was a departure in the legal position in view of Article 136 of the Limitation Act, 1963. But with respect, we must point out that the decision really conflicts with the ratio of the decision in Messrs Mela Ram and Sons and Sheodan Singh (supra) and another decision of this Court rendered by two learned Judges in Rani Choudhury Vs. Lt.-Col. Suraj Jit Choudhury [(1982) 2 SCC 596]. In Essar Constructions vs. N.P. Rama Krishna Reddy [(2000) 6 SCC 94) brought to our notice two other learned Judges of this Court, left open the question. Hence, reliance placed on that decision is of no avail to the appellant."
28. In Sardar Guru Dayal Singh-appellant vs. Ram Chandra Kushiari & others-respondents reported in A.I.R. 1971 Patna 190, after considering plethora of citations, it has been concluded under:-
"14. After a careful consideration of all the decisions referred to above, in my judgment the contentions of learned counsel for the appellant cannot be accepted. In the circumstances of the case, I am constrained to answer question No.
(i) by holding that the decree would be deemed to have borne llth July, 1952 as its date which Patna High Court CWJC No.22327 of 2012 59 was the date of the judgment, and to answer question No. (ii) by holding that the appellant was not in any way misled because the decree was drawn up and signed on 12-10-63. On the above findings, the execution levied by the decree-holder-appellant was obviously time-
barred according to the provisions of Article 182 of the Act The impugned order of the learned Subordinate Judge has therefore, got to be maintained."
29. In order that decision of the Court should become a decree, there must be an adjudication with finding ascertaining the lis in consonance with the right of the parties and further, such finding should be conclusive in nature. Therefore, whenever there happens to be dismissal of an appeal on the ground of limitation or wherefrom an appeal is dismissed in default, then in that event, certainly there happens to be no adjudication of the lis nor there happens to be determination in its conclusiveness. That being so, it could not be treated as judgment and so, decree was not at all warranted. Because of the fact that no judgment was there, no decree was to be passed. Then in that event, there would not have arisen an occasion of merger. That means to say, the judgment and decree of the learned lower Court is found immuned and consequent thereupon, the same was executable one. This view is found further supported with when the Patna High Court CWJC No.22327 of 2012 60 definition of decree as prescribed under Section 2(2) of the C.P.C. is gone through which reads as follows:-
"2. Definitions-In this Act, unless there is anything repugnant in the subject or context (2) "decree" 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 matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within [The words and figures "section 47 or", omitted by the Code of Civil Procedure (Amendment) Act, 1976, S.3 (w.e.f. 1-2-1977]. Section 144, but shall not include-
(a) any adjudication from which an appeal lies as an appeal from an order, or
(b) any order of dismissal for default.
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;
Patna High Court CWJC No.22327 of 2012 61
30. When as per definition of decree does not include dismissed in default, on account thereof, dismissal of appeal in default would not be considered in a way to have any impact over the judgment and decree of the learned lower Court. Being so, and as no stay was granted during course of sailing of appeal, as such, it was incumbent upon the decree-holder to pursue with the execution.
31. In Surajdeo Narain Singh and another-decree holders-appellants v. Pratap Rai and another-Judgment-debtors- Respondents reported in A.I.R. 1923 Patna 514, it has been held:-
"The question is what is the effect of the order of dismissal for default. The order does not amount to a decree within the definition of the term as given in the Code of Civil Procedure. The appeal was not heard and decided on the merits. As was pointed out by the Judicial Committee of the Privy Council in the case of Abdul Majid v. Jawahir Lal (1), the order dismissing the appeal for want of prosecution did not deal judicially with the matter of the suit and could in no sense be regarded as adopting or confirming the decision appealed from. It merely recognized authoritatively that the appellants had not complied with the condition under which the appeal was open to them and therefore they Patna High Court CWJC No.22327 of 2012 62 were in the same position as if they had not appealed at all."
32. Though filing of an appeal at least the First Appeal happens to be continuance of the suit. That does not mean that mere filing of the First Appeal had allowed the judgment and decree of the learned lower Court to loom. The aforesaid eventualities would only survive when there happens to be stay either at the end of the appellate Court or by the executing Court itself. Therefore, the decree- holder is expected to proceed with execution proceeding in order to avail usufruct of the judgment and decree having in his favour without waiting for the outcome of the Appellate Court's order by which, the judgment and decree of the lower Court may be got rescind or modified or affirmed. That means to say, the decree-holder has to prepare himself to face the aforesaid alternative eventualities. In other words, the decree-holder should not expect keeping his side idle over outcome of the appellate Court's judgment which may during intermediary stage may face other kinds of consequences on account of lapses on the part of the judgment-debtor/ appellant which, ultimately result in dismissal of the appeal. Therefore, conduct of the decree-holder in launching execution proceeding beyond period of limitation in the background of having the appeal dismissed for default and further, asking for question of merger would not be available to the decree-holder for the purpose of making the period of Patna High Court CWJC No.22327 of 2012 63 limitation sterile.
33. However, considering the conflicting view, as referred above, it looks desirable that the matter be decided in authoritative manner and for that, the matter is referred to Division Bench, and for that following points are formulated:-
(A) Whether pendency of Appeal by its implication suggest stay of judgment & decree of the lower Court?
(B) What will be mode of consideration with regard to calculation of period of limitation relating to filing of execution proceeding in case appeal is dismissed in default in terms of Article 136 of the Limitation Act.
34. Office is directed to place before Hon'ble the Chief Justice for constitution of Division Bench.
(Aditya Kumar Trivedi, J) Vikash/-
AFR/NAFR A.F.R. CAV DATE 19.07.2016 Uploading Date 16.08.2016 Transmission N.A. Date