Rajasthan High Court - Jaipur
Sayed Abdul Rauf vs Nurul Hussain And Ors. on 14 March, 1991
Equivalent citations: AIR1992RAJ3, 1991WLN(UC)159
ORDER K.C. Agrawal, C.J.
1. This is a judgment-debtor's revision filed under Section 115 of the Code of Civil Procedure challenging the order passed by the Munsiff/ Magistrate rejecting his objection filed under Section 47 C.P.C.
2. A preliminary decree was passed on 23-7-1953 by the Add. Munsif, Ajmer City followed by final decree dated 13-11-1961. Against the aforesaid judgments, an appeal was preferred to the District Judge in which the final decree was modified by the order and judgment dated 26-8-1968. Against the said order, a Second Appeal was filed by the petitioner Sayed Abdul Rauf, which was dismissed in default on 3-9-1981. Thereafter, on 12-9-86, the non-petitioners filed an execution application. To the execution application, an objection was preferred by the petitioner under Section 47 C.P.C. Amongst others, one of the pleas, which was pressed before me in this revision, was that the execution application was barred by time having been preferred after three years of the dismissal of the second appeal in default by the order dated 3-9-1981 of the High Court.
3. The decree-holders asserted that the execution application had been filed within time and as such, the objection of the, petitioner-judgment-debtor had no sub-
stance.
4. ' Learned 'Counsel for the petitioner urged that as the dismissal of second appeal in default did not amount to any decree, the period of limitation could not be taken to run from the" date of dismissal of the second appeal in default by the High Court. Sub section (2) of Section 2 of the Code of Civil Procedure defines the word "decree, which;
runs as under:--
" 'decree' means the formal expression of any 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 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."
According to the interpretation of the learned Counsel for the petitioner, as dismissal of the second appeal was expressly excluded from the definition of the word 'decree', that dismissal will not be taken into account.
5. Article 136 of the Limitation Act provides time from which period to execute the decree runs. In the third column of the Schedule, the material words are 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 in-junction) 01 oidei of any Civil Court Twelve years.
Where the decree or order becomes enforceable or where the" decree or any subsequent order directs any payment of money ......
6. Article 136 of the present Limitation Act corresponds in scope and applicability to Article 132 of the repealed Limitation Act with modifications and alterations. 'Article 136 was amended on the recommendation of the Law Commission. The Law Commission felt that while under the old Limitation Act, an application for execution of a decree had to be made within a period of three years, or, if the certified copy of the decree was registered, within six years, under the amended law, the first execution application can be filed within, a period of twelve' years. The present Article 136 covers all cases' in respect of execution of decrees, except a decree granting mandatory injunction. The prescribed period of limitation is twelve years and it would start, in the case of a decree or order, when it becomes enforceable.
7. In the instant case, the second' appeal filed by the petitioner was dismissed in default in the year 1981. If the dismissal of the second appeal is the starting point of limitation, there would be no difficulty in holding the application for execution to be within time. However, the contention of the learned Counsel for the petitioner was that as the dismissal of the suit in default was not included within the definition of the word 'decree', as amended, the dismissal of the second appeal in default was not to be taken into account. In other words, what he contended was that the entire period of pendency of the appeal in the High Court had to be ignored. Learned Counsel also urged' in this connection that, as no stay order had been granted by the High Court in the second appeal which was ultimately dismissed in default, the decree became enforceable immediately after dismissal of the first appeal.
8. It is true that there was no stay order in the second appeal but the question still arises as to whether the date of dismissal of the second appeal in default could be taken into consideration for holding that the execution application was within time. To support; his submission, the learned Counsel for the" Petitioner referred to the decisions of the Privy Council reported in Harendra Lal v .Sm.
Haridasi Debi and,others, AIR 1914 PC 66 and Jagannath Bal v. Sadhu Charan Bal AIR 1943 Pat 371. None of the: two, cases, has any relevance to the controversy for decision before me. Dismissal of a suit or an appeal in default is also a judicial order irrespective of
-the fact that there was no stay order in the second appeal. The decree-holders could wait for its decision and the application could not be said to be barred by time. By Article 136 of the Limitation Act, period provided for execution of a decree is twelve years from the date on 'which, it becomes enforceable. It was immaterial that there was no order staying the execution of the decree and that the decree-holders could execute the decree even at that time. If the appeal had been preferred, the decree could become enforceable after dismissal of the same.
9. There could be two points of time of execution-- (i)when the trial Court passed the decree arid (ii) when the appeal was dismissed by the High Court in default.
Dismissal of the appeal in default is of no material consequence. It is a mode admissible under 'the Code of Civil Procedure for dis-
missing, an appeal in default. While consi-
dering the question of amendment of the limitation Act, the Law Commission gave following reasons for enacting the present Article 136,:--
;" "Article 182 (old) has been a very fruitful source of litigation and is a weapon' in the hands of' both the 'dishonest decree-holder and the dishonest judgment-^debtor! It has given rise to innumerable decisions. The commentary in Rustomji's Limitation Act (15th Edn) on the" Article itself covers nearly 200-' pages. 'In our opinion the. maximum period, of limitation for the execution of a decree' of order of' any Civil Court should be 12 years 'from 'the date 'when' the-decree or "Order 'became enforceable (which is usually ' 'the' date 'of the 'decree) or where the' decree or !subsequent? order directs any' payment of money or the delivery of any property to be made at a certain date' or at recurring periods' the date of the default in making the payment or delivery in respect of which the applicant seeks, to execute the decree. There is, therefore, no need for provision compelling the decree-holder, to keep , the decree alive by making ah application every three years.
- There exists a provision already in Section 48 of the Civil P.C. that a decree ceases to been force able after a period of 12 years. In England also the time fixed for enforcing a decree is 12 years. Either the decree-holder succeeds in realising his decree within this period or he fails and there should be no provision enabling the execution of a decree after that period. To this provision an exception will have to be made to the effect that the Court may order the execution of a decree upon an application presented after the expiration of the period of 12 years, where the judgment-debtor has, by fraud or force, prevented the execution of the decree at some time within the twelve years immediately preceding the date of the application. Section 48 of the Civil Procedure Code may be deleted and its provision may be incorporated in this Act."
10. As I have already observed, on the recommendation of the Law Commission, the Parliament enacted the present Article 136 which substantially re-produces the repealed Section 48, C.P.C. and re-places Article 182 of the old Limitation Act. This was done with a view to overcome the difficulty which used to be faced by the litigants and the Courts. Enactment of Article 136 has simplified the controversy and has provided that for the execution of any decree or order of any Civil Court, the period :of limitation would be twelve years. This period of limitation begins to run "when the decree or order becomes enforceable". Whether there was a stay order or not, that was not material for the purposes of calculating the , period of limitation and giving effect to the phrase 'when it becomes enforceable.
. | -
11 It, is settled law that the decree of the trial court gets merged with the decree of the appellate Court and the letter supersedes the decree of the trial Court. This merger takes place irrespective of the fact that the appellate Court affirms, modifies or reverses the lower Court's decree. (See Abdul Latif v. Mohd.
Sufayan, Execution Second Appeal No. 2295 of 1972 decided on 7-11-1980 (All.); Gaja-
'dhar Singh v. Kishan Jiwan Lal, (1917) ILR 39 All 641: (AIR 1917 All 163 (SB)); Sangram Singh v. Bujharath Singh, (1881) ILR 4 All 36; Mohammad Sulaiman Khan v. Moham-
mad Yar Khan, (1889) ILR 11-All 267 (FB);
Durga Singh v. Wahid Raza, 1964 All LJ 817 :
'(AIR 1965 All 226); T.K. Musaliar v.
Venkatachalam, AIR 1956 SC 246; Madan Gopal v. Secretary to Govt. of Orissa, AIR 1962 SC 1513; Collector of Customs v. East India Commercial Company, AIR 1963 SC 1124 and Gojer Brothers (Pvt.) Ltd. v. Ratan Lal Singh, AIR 1974 SC 380.
12. In Suratsingh Chandanmal Oswal v. Gulabchand Lachmandas Pardesi, AIR 1963 Bombay 263, the Bombay High Court held that under Article 182(2) of the Limitation Act, it is only where an appeal against an executable decree has been filed that the period of limitation for the purpose of an application for execution of the decree would commence. Similar view was taken by a Division Bench of Allahabad High Court in Banshidhar Durga Dutta v. Loonkaran Sethia (deceased by LRs) 1983 All LJ 557.
13. The execution application, having been filed within twelve years of the date of dismissal of the appeal, was well within time, therefore, the court below was right in rejecting the plea of the petitioner.
14. No other point was pressed and argued before me.
15. For what I have said above, I find no merit in this revision.
16. In the result, the revision fails and is dismissed without any order as to costs.