Calcutta High Court
Dinesh Viniyog Limited & Ors vs The Oriental Gas Co. Limited & Ors on 24 September, 2018
Author: Arijit Banerjee
Bench: Arijit Banerjee
In the High Court at Calcutta
Civil Appellate Jurisdiction
In Appeal from its of Ordinary Original Jurisdiction
Original Side
GA No. 215 of 2018
APO 517 of 2017
E.C. No. 323 of 2011
Dinesh Viniyog Limited & Ors.
-Vs.-
The Oriental Gas Co. Limited & Ors.
Before : The Hon'ble The Chief Justice Jyotirmay
Bhattacharya
&
The Hon'ble Justice Arijit Banerjee
For the appellants : Mr. S. N. Mitra, Sr. Adv.
Mr. Shankarshan Sarkar, Adv.
For the respondents : Mr. R. Banerjee, Sr. Adv.
Mr. Shaunak Mitra, Adv.
Mr. P. Shome, Adv.
Heard On : 01.02.2018, 08.02.2018, 30.04.2018
14.05.2018, 27.06.2018, 23.07.2018
16.08.2018, 28.08.2018, 03.09.2018
04.09.2018, 10.09.2018
CAV On : 13.09.2018
Judgment On : 24.09.2018
Arijit Banerjee, J.:-
(1)This is an appeal against the judgment and order dated 5 September, 2017 passed by a Learned Single Judge in E.C. No. 323 of 2011. The operative portion of the said judgment and order is as follows:-
"Under such circumstances, I am unable to accept the submission of the judgment - debtors that this application is barred by Limitation.
Mr. Rajarshi Dutta, Advocate, Bar Library Club, is appointed as a receiver over and in respect of the remaining assets in Annexures O and P of the tabular statement as directed by the earlier order dated 17th March 2009 which has since been affirmed by the Division Bench. The receiver shall file a report on the adjourned date. The receiver shall be entitled to an initial remuneration of 1500 GMs to be paid by the decree-holders. All costs, charges and expenses incurred by the decree-holder in such regard shall be added to their claim in this proceeding. An affidavit of assets by the judgment-debtors in Form No. 16A of Appendix - E of the Code of Civil Procedure shall be filed by the adjourned date. The matter stands adjourned till 31st October 2017."
Being aggrieved, the judgment-debtors are before us by way of the instant appeal.
(2) Dinesh Viniyog Limited, the appellant number 1 had initiated legal action under the English Companies Act, 1985 against amongst others, the Oriental Gas Company Limited being the respondent number 1 in the High Court of Justice, Chancery Division, Companies Court, London, U.K. The said legal proceedings were dismissed with cost by an order dated 12 March, 1998. Paragraph 4 of the said order provided that "all such costs orders referred to at paragraphs 2 (a) to 2
(j) and paragraph 3 above be taxed if not agreed on the standard basis and the Petitioners be jointly and severally liable for the same." It is not in dispute that the cost orders were assessed in the sum of approximately £ 374,000. It would also appear from the certificate under Section 10 of the Foreign Judgments (Reciprocal Enforcement) Act, 1933 dated 7 November, 2005 issued by the Registrar of Enforcement, Supreme Court of Judicature, Chancery Division, London, U.K that a sum of £ 387,727 approximately has been received by the decree holders towards part payment of the Judgment debt and accrued interest on 28 November, 2001. It will also appear from the same certificate that a sum of £ 124,015 approximately (including interest @ 8% per annum from 28.11.2001 till the date of the certificate) remained outstanding under the judgment. (3) In 2006 the decree-holders i.e Oriental Gas Company Limited and others filed an execution case in this Court before the Learned Single Judge being E.C. No. 30 of 2006 for enforcement of the aforesaid decree of the English Court to the extent the same remained unsatisfied. The amount shown as due to decree holders under the English Court's decree in the Tabular Statement filed in the execution case was Rs. 1, 16, 16,609/-. The prayers in the execution application which was registered as G.A. No. 3846 of 2006 were as follows:-
"(a) Receiver be appointed over the properties and assets mentioned in Annexures 'O', 'P' and 'Q' of the supporting affidavit with a direction to sell the same and pay the sale proceeds to the judgment creditors in protanto satisfaction of the decretal dues.
(b) The properties and assets mentioned in Annexures 'O' 'P' and 'Q' of the supporting affidavit be attached for payment of the decretal dues.
(c) Injunction restraining the judgment debtors, their servants and agents from in any way transferring alienating, disposing of or encumbering or dealing with the properties and assets mentioned in Annexures 'O' 'P' and 'Q' of the supporting affidavit."
(4) On the said execution application the learned Single Judge passed an order dated 2 July, 2008 recording certain defects in the application. The operative portion of the said order reads as follows:-
"All the other requirements are present but for want of the requirement set out above the application cannot be entertained till the said defect is cured. Accordingly three months time is given to the decree holders to cure the defect by getting an endorsement as postulated by Order 71 Rule 13(4) of the 1965 Rules failing which the execution application shall stand dismissed."
(5) Presumably the said defects were cured by the applicants/decree holders. G.A. No. 3846 of 2006 was ultimately disposed of by a judgement and order dated 17 March 2009 by the Learned Single Judge. The operative portion of the said judgment and order reads as follows:-
"As regards the assets sought to be proceeded against by the decree holder Section 44A must be read with Section 39(4) of the CPC. Under Section 44A of the 1908 Act District Court includes the High Court but in view of Section 39(4) of the 1908 Act, which has been inserted by the amendment of 2002 and the execution application filed thereafter in 2006, Section 39(4) will apply. Accordingly no order can be passed in respect of the immovable property. As regards the remaining assets in Annexures "O"
and "P" there will be an order in terms of prayer (a) of column 10 of the Tabular statement provided such assets are within the jurisdiction of this Hon'ble Court.
With the aforesaid direction this application is disposed of."
(6) Prayer (a) of Column 10 of the Tabular Statement was a prayer for appointment of receiver over the properties and assets mentioned in Annexures 'O', 'P' and 'Q' to the affidavit affirmed in support of the Tabular Statement with a direction to sell the same and pay the sale proceeds to the judgments creditors in protanto satisfaction of the decretal dues. However, the name of the receiver was not mentioned in the said order presumably by way of over sight.
(7) The judgment debtors i.e Dinesh Viniyog Limited & Ors. preferred an appeal from the said judgment and order. While admitting the appeal by an order dated 19 May 2009, the Appeal Court directed the receiver "not to take any further steps till the next date". The matter was adjourned till 17 June 2009.
(8) The said appeal was ultimately dismissed by the Appeal Court by a judgment and order dated 4 March, 2011.
(9) The decree holders filed another execution application registered as Execution Case No. 323 of 2011 in June 2011. The prayers in the Tabular Statement of that execution application were as follows:-
"(a) A Learned Advocate of this Hon'ble Court or any other suitable person be appointed as Receiver in terms of the order dated 17th March, 2009.
(b) The Officer-in-Charge of the concerned Police Station be directed to render all necessary assistance to the Receiver in the matter of taking possession of the properties mentioned in the order dated 17th March, 2009.
(c) The judgment debtors and/or its servant and/or agent be restrained by an order of injunction from selling /transferring any property/ assets movable or immovable belonging to the judgment debtors.
(d) Hemant Kumar Jalan, Radhuri Jalan and Nidhi Bagrodia (presently known as Nidhi Jalan) all stated to be working for gain at 36, Chowringhee Road, Kolkata - 700071, within the jurisdiction of this Hon'ble Court be directed to be present before this Hon'ble Court for being examined for the assets and properties of the Judgment debtors and so as to satisfy the decree.
(e) The Judgment Debtors be directed to disclose on oath as to the details of the assets and properties belonging to or standing in the names of the Judgement-debtors.
(f) Ad-interim orders in terms of prayers above."
(10) Before the Learned Single Judge it was contended on behalf of the Judgment debtors that the second execution application was barred by limitation having been filed beyond 12 years from the date of the decree of the English Court. The Learned Judge rejected such contention and named the receiver already appointed by the earlier order dated 17 March, 2009 as would appear from the operative portion of the judgment and order under appeal which has been extracted above. Being aggrieved, the judgment debtors are before us by way of the instant appeal.
(11) Appearing for the appellants Mr. S. N. Mitra, Learned Senior Advocate referred to Art. 136 of the Schedule to the Limitation Act, 1963 and submitted that the limitation period for executing a decree is 12 years from the time the decree becomes enforceable. He submitted that a decree ordinarily becomes enforceable on the day it is passed unless anything to the contrary is indicated in the decree itself. In the present case the decree became enforceable as soon as it was passed by the English Court on 12 March, 1998. Hence, no application for execution of the decree would lie after 11 March, 2010. (12) Mr. Mitra drew our attention to Art. 182 of the Schedule to the Limitation Act, 1908 and pointed out the differences between Art. 136 of the Schedule to the 1963 Act and Art. 182 of the Schedule to the 1908 Act. Under the old Limitation Act, Art. 182 of the Schedule dealt with the first and successive applications which the decree holder was entitled to make. Such applications had to be made within the period of 3 years from various points of time as specified in Art. 182. There is no such provision under Art. 136 of the Schedule to the present Limitation Act under which a decree can be kept alive by successive applications for execution or for taking a step in an execution. He submitted that now there is only one period of limitation for an application for execution and there are no separate periods of limitation governing each of the several applications which a decree holder can make within the period of 12 years. All that is needed under Art. 136 is that an application for execution of a decree or order must be filed within the period of 12 years from the date when the decree or order becomes enforceable.
(13) Mr. Mitra relied on the decision of the Apex Court in the case of Lalu Prasad yadav and Anr.-vs.-State of Bihar and Anr. (2010) 5 SCC 1, in support of his submission that if a statute is replaced by a subsequent statute, if the later statute does not use the same language as in the earlier one, the alteration must be taken to have been made deliberately. This judgment was cited in the context of the difference between the Art. 136 of the Schedule to the present Limitation Act and Art. 182 of the Schedule to the earlier Limitation Act.
(14) Learned Senior Counsel also referred to the decision of the Apex Court in the case of UCO Bank-vs.-Amalgamated Coalfields Ltd. (2000) 3 Cal LT 492(HC), in support of his submission that the period of limitation for filling an application for execution of a decree starts running from the date the decree becomes enforceable. In normal and usual circumstances unless any contrary intention is indicated in the decree itself limitation starts running from the date on which the decree is passed by the Court.
(15) In support of his submission that a decree or order is said to be enforceable when it is executable, Ld. Senior Counsel relied on the decision of the Apex Court in the case of Manohar S/O Shankar Nale & Ors.-vs.-Jaipalsing S/O Shivlalsing Rajpur, (2008) 1 SCC 520. 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. Thus, a decree becomes enforceable the moment the judgment is delivered and merely because there may be delay in drawing up of the decree, it cannot be said that the decree is not enforceable till it is prepared. This is because in one form or the other, an enforceable decree is available to a decree holder from the date of the judgment till the expiry of the limitation period under Art. 136 of the Schedule to the Limitation Act, 1963.
(16) Mr. Mitra then submitted that if an execution case is filed beyond 12 years from the date of the decree and if new properties are sought to be proceeded against by way of such execution, the execution cannot proceed as against those added properties. For this proposition he relied on the decision of the Patna High Court in the case of Ram Gobind Rai-vs.-Shahabad District Board through the Special Officer, Arrah, AIR 1976 PATNA 118.
(17) Mr. Mitra then submitted that in the affidavit in reply filed by the decree holders before the Learned Single Judge it was sought to be contended that the second execution application is a continuation of the earlier execution application. He submitted that this is totally incorrect. The prayers in the two execution applications are different. The second application is a fresh execution application filed beyond the period of limitation of 12 years and hence not maintainable.
(18) Appearing for the respondents Mr. Ratnanko Banerji, Learned Senior Counsel, made three-fold submissions. Firstly, he submitted that an earlier Division Bench by its interim order dated 19 May 2009 had stayed the hands of the receiver. Such interim order continued till disposal of the appeal being APO No. 132 of 2009 on 4 March, 2011. According to him, this amounted to a stay of execution of the English Court's decree. Accordingly, this period will have to be excluded in computing the period of limitation for execution of the said decree as amended by Section 15 (1) of the Limitation Act, 1963, which reads as follows:
"15. Exclusion of time in certain other cases.-(1) In computing the period of limitation for any suit or application for the execution of a decree, the institution or execution of which has been stayed by injunction or order, the time of the continuance of the injunction or order, the day on which it was issued or made, and the day on which it was withdrawn, shall be excluded."
If the said period is excluded, the second execution application was filed within 12 years from the date of the decree. In this connection Mr. Banerji relied on the decision of the Apex Court in the case of Anandilal and Anr.-vs.- Ram Narain and Ors., (1984) 3 SCC
561. We will revert back to this case later.
(19) Secondly, Mr. Banerji submitted that E.C. No. 30 of 2006 was not disposed of by the Learned Single Judge by the judgment and order dated 17 March, 2009. What was disposed of was G.A. No. 3846 of 2006. Hence, the main execution case is still pending. In this Connection Mr. Banerji produced a computer generated statement dated 16 August, 2018 of Case Status maintained by this Court's department which shows EC No. 30 of 2006 to be pending. He submitted that in any event, there has been no recording of satisfaction of the English Court's order/decree dated 12 March, 1998 as is required to be done under the provisions of O. XXI of the Code of Civil Procedure and as such the execution proceeding was kept pending and could not have been disposed of. The second execution application is a continuation of the first execution application and hence cannot be barred by limitation. In this connection, Mr. Banerji relied on the decision of a learned Single Judge of the Bombay High Court in the case of Sakharchand Bhukandas Gujarathi-vs.-Punju Chintaman Wani, AIR 1973 Bom 148, wherein it was held that where the execution of a decree is ordered but owing to some interruption not attributable to the decree-holder himself, the order for execution cannot be carried out and subsequently on the removal of the interruption the decree-holder applies to carry out the previous order of execution, such an application is not a fresh application for execution but merely one to revive or to continue the previous execution proceedings. Where the execution of a decree has been suspended through no act or default of the decree-holder he has the right to ask the Court to revive and carry on with the execution proceedings which had been suspended. The learned Judge relied on an earlier Bombay decision in the case of Chamava-vs.-Iraya, (1931) 33 Bom LR 1082 and a Full Bench decision of the Allahabad High Court in the case of Chattar Singh-vs.-Kamal Singh, (1926) ILR 49 All 276. (20) The third submission of Mr. Banerji was that the cost that was ordered by the English Court in favour of the respondents herein were assessed in the sum of £ 366,225.95 as per cost orders dated 21 July, 1999, 18 August, 1999, 7 September, 1999 and 17 September. The costs in relation to the charging orders dated 19 October, 1999 as amended on 11 November, 1999 and 9 December, 1999 were assessed at £ 4000. The costs in relation to the order dated 8 October 2001 were assessed at £ 4120. This would appear from the certificate issued by the Registrar of Bankruptcy attached to the High Court of Justice, Chancery Division, Companies Court, UK. According to him, until the costs were assessed, the decree for cost could not be put into execution. The last cost order was dated 8 October, 2001. Hence, this must be taken to be the date when limitation for execution of the decree started running. In any event, 21 July, 1999 was the date of the first cost order and at the earliest this must be the date when limitation started running. Even then, the second execution application would be within the period of limitation. (21) Mr. Banerji also submitted that more than one application for execution of a decree is maintainable and the principles of O. 2 R. 2 of the CPC do not apply to execution applications. In support of this proposition he relied on the Division Bench judgment of this Court in the case of Upendra Nath Bose-vs.-K.B. Dutt, ILR 53 Cal 582. (22) In reply, Mr. Mitra, learned Sr. Counsel submitted that by the interim order dated 15 May, 2009 the execution proceeding was not stayed by the Division Bench. Only the receiver was directed not to take any further steps till the next date. The next date was 17 June, 2009. Even assuming that the order dated 15 May, 2009 operated as stay of execution of the decree, such order of stay automatically stood vacated after 17 June, 2009. Hence, the respondents can at best claim benefit of Sec. 15 of the Limitation Act, 1963 for the period between 15 May, 2009 and 17 June, 2009 which would not save the second execution application from being barred by limitation. In any event, nothing prevented the respondents from applying for orders in terms of prayers (c), (d) and (e) of the second execution application prior to 11 March, 2010, i.e., the date when 12 years elapsed from the date of the decree.
(23) As regards Mr. Banerji's argument regarding completion of the assessment of cost only on 8 October, 2001 and hence, computation of limitation period from that date, Mr. Mitra submitted that no such case has been made out in the pleadings filed by the respondents. No such case was argued before the learned Single Judge. No evidence is on record that the respondents took diligent steps for getting the costs assessed. Hence, the respondents cannot exclude the time that was taken for assessment of costs for the purpose of computation of limitation. In this connection, he relied on the decision of the Apex Court in the case of Dr. Chiranji Lal (D) By LRs.-vs.-Hari Das (D) By LRs., (2005) 10 SCC 746. Mr. Mitra relied on paragraphs 25 and 26 of the judgment which read as follows:-
"25. The engrossment of the final decree in a suit for partition would relate back to the date of the decree. The beginning of the period of limitation for executing such a decree cannot be made to depend upon date of the engrossment of such a decree on the stamp paper. The date of furnishing of stamp paper is an uncertain act, within the domain, purview and control of a party. No date or period is fixed for furnishing stamp papers. No rule has been shown to us requiring the court to call upon or give any time for furnishing of stamp paper. A party by his own act of not furnishing stamp paper cannot stop the running of period of limitation. None can take advantage of his own wrong. The proposition that period of limitation would remain suspended till stamp paper is furnished and decree engrossed thereupon and only thereafter the period of twelve years will begin to run would lead to absurdity. In Yeshwant Deorao Deshmukh v. Walchand Ramchand Kothari [1950 SCR 852] it was said that the payment of court fee on the amount found due was entirely in the power of the decree holder and there was nothing to prevent him from paying it then and there; it was a decree capable of execution from the very date it was passed.
26. Rules of limitation are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. As above noted, there is no statutory provision prescribing a time limit for furnishing of the stamp paper for engrossing the decree or time limit for engrossment of the decree on stamp paper and there is no statutory obligation on the Court passing the decree to direct the parties to furnish the stamp paper for engrossing the decree. In the present case the Court has not passed an order directing the parties to furnish the stamp papers for the purpose of engrossing the decree. Merely because there is no direction by the Court to furnish the stamp papers for engrossing of the decree or there is no time limit fixed by law, does not mean that the party can furnish stamp papers at its sweet will and claim that the period of limitation provided under Article 136 of the Act would start only thereafter as and when the decree is engrossed thereupon. The starting of period of limitation for execution of a partition decree cannot be made contingent upon the engrossment of the decree on the stamp paper. The engrossment of the decree on stamp paper would relate back to the date of the decree, namely, 7th August, 1981, in the present case. In this view the execution application filed on 21st March, 1994 was time barred having been filed beyond the period of twelve years prescribed under Article 136 of the Act. The High Court committed illegality in coming to the conclusion that it was not barred by limitation."
(24) As regards the Apex Court's decision in Anandilal and Anr.-vs.- Ram Narain and Ors. (supra), Mr. Mitra submitted that the same pertains to the Limitation Act, 1908. The provisions of the said Act and the Limitation Act, 1963 are materially different. Hence, the said case has no manner of application to the facts of the present case. Courts View:-
(25) The decree/order of the English Court that is sought to be executed by the respondents herein is dated 12 March, 1998. A decree passed by a foreign Court in a reciprocating territory is executable in India. Explanation I under Section 44A of the CPC defines "reciprocating territory" as a country or territory outside India which the Central Government may, by notification in the Official Gazette, declare to be a reciprocating territory for the purposes of Section 44A.
It is not in dispute that United Kingdom is such a reciprocating territory under Section 44A (1) of the Code. Where a certified copy of a decree of any of the superior Courts of any reciprocating territory has been filed in a District Court, the decree may be executed in India as if it had been passed by the District Court. Sub section (2) of Sec. 44A prescribes that together with the certified copy of the decree shall be filed a certificate from such superior Court stating the extent, if any, to which the decree has been satisfied or adjusted and such certificate shall, for the purposes of proceedings under Section 44A be conclusive proof of the extent of such satisfaction or adjustment. Again there is no dispute that the English High Court, Chancery Division which passed the decree in question is a 'Superior Court' within the meaning of Section 44A. Section 2(4) of the code defines 'district' as the local limits of the jurisdiction of a principal Civil Court of Original Jurisdiction and includes the local limits of the Ordinary Original Civil Jurisdiction of a High Court. Hence, an application for execution of a decree of the English High Court is maintainable in the Ordinary Original Civil Jurisdiction of our Court.
(26) Section 13 of the Code provides that a foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except, firstly, where it has not been pronounced by a Court of competent jurisdiction; secondly, where it has not been given on the merits of the case; thirdly, where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of India in cases in which such law is applicable; fourthly, where the proceedings in which the judgment was obtained are opposed to natural justice; fifthly, where it has been obtained by fraud; and sixthly, where it sustains a claim founded on a breach of any law in force in India. Under Section 14 of the Code the Court shall presume, upon the production of any document purporting to be a certified copy of a foreign judgment, that such judgment was pronounced by a Court of competent jurisdiction, unless the contrary appears on the record; but such presumption may be displaced by proving want of jurisdiction. (27) It is not the case of the appellant that the English Court's decree in question is in-executable in our Court for any of the reasons mentioned in Section 13 of the CPC. The only point urged by the appellant is that the second execution application filed by the respondents is barred by limitation.
(28) Under Art. 136 of the Schedule to the Limitation Act, 1963, the period of limitation for the execution of any decree (other than a decree granting a mandatory injunction) or order of any Civil Court is 12 years from the date when the decree or order becomes enforceable. Thus, shorn of any other consideration, execution of the English Court's decree would become time barred on 12 March, 2010. Mr. Banerji, Learned Sr. Counsel relied on Sec. 15(1) of the Limitation Act, 1963 (extracted above) and argued that the time period between 19 May 2009 and 4 March, 2011 should be excluded for computing the period of limitation for execution of the decree in question since, according to him, there was stay of execution of the decree during that period by reason of the interim order dated 19 May, 2009 passed by the Division Bench. The direction of the Division Bench was that the receiver should stay his hands. There was no order of blanket stay of the execution of the decree. At best, there was a partial stay of execution of the decree through the mode of appointment of receiver. Learned Sr. Counsel relied on the Apex Court decision in Anandilal & Anr. (supra). In that case, the Apex Court noted that there has been a sharp divergence of judicial authority on the question whether a partial stay comes within Sec. 15 (1) of the Limitation Act. The Apex Court noticed and discussed several cases of several High Courts as also of the Privy Council. Finally, the Apex Court concluded that there is no justification for placing a rigid construction on a beneficent provision like Sec. 15(1) of the Limitation Act. The word 'execution' appearing in the collocation of words 'the execution of which has been stayed' must be construed in a liberal and broad sense. The words 'execution of the decree' mean the enforcement of the decree by what is known as 'process of execution'. The word 'execution' under Sec. 15(1) encompasses all the available means by which a decree is enforced. It includes all processes and proceedings in aid of, or supplemental to, execution. Stay of any process of execution is stay of execution within the meaning of Sec. 15(1) of the Limitation Act. Where an injunction or order has prevented the decree holder from executing the decree, then irrespective of the particular stage of execution, or the particular property against which, or the particular judgment-debtor against whom, execution was stayed, the effect of such injunction order is to prolong the life of the decree itself by the period during which the injunction or order remained in force. It is well-settled that when the law prescribes more than one mode of execution, it is for the decree-holder to choose which of them he will pursue.
(29) Even assuming that the respondents are entitled to the benefit of Sec. 15(1) of the Limitation Act following the aforesaid Apex Court decision, still, it does not help them since the Division Bench order dated 19 May, 2009 was directed to be operative till the next date and the matter was adjourned till 17 June, 2009. In our view, the interim order lapsed on 17 June, 2009 as there is nothing on record to show that it was further extended till the disposal of the appeal or till any other date. Hence, at best, the respondents could be entitled to the benefit of Sec. 15(1) of the Limitation Act for the period between 19 May, 2009 and 17 June, 2009, i.e, for a period of about one month. That would mean that the execution of the decree would become time barred on 12 April, 2010 instead of 12 March, 2010. Admittedly, the second execution application was filed in June, 2011 which would make it barred by limitation. Hence, the argument of Mr. Banerji on the basis of Sec. 15(1) of the Limitation Act fails. (30) The second argument of Mr. Banerji was that the first execution case being EC No. 30 of 2006 which was filed admittedly within the prescribed period of limitation, was not disposed of by the learned Single Judge's order dated 17 March, 2009. The second execution application should be treated as a continuation of the earlier execution case. This argument also does not appeal to us. It is not that the respondents have filed an application in the pending EC No. 30 of 2006, assuming that the same is pending. They have filed a separate and independent execution application which is marked as EC No. 323 of 2011. Further, it also cannot be said that the second application is merely for implementation of the earlier order dated 17 March, 2009 whereby receiver had been appointed but no personnel was named. To the extent, the second application is for implementation of the earlier order, Mr. Mitra, Learned Sr. Counsel for the appellants fairly conceded that he has no objection. However, there are other prayers in the second application which were not there in the earlier application. The prayers in both the applications have been extracted above. In so far as such new prayers are concerned, we are of the view that they are time barred if 12 March, 1998 is taken to be the starting point of the period of limitation for execution of the decree in question. Hence, such fresh prayers and in particular prayers (c), (d) and (e) of the second execution application would be barred by limitation.
(31) The third submission of Mr. Banerji, learned Sr. Counsel, has however impressed us. According to Mr. Mitra, the decree in question became enforceable immediately upon the English Court passing the decree on 12 March, 1998. Thus, according to him, the period of limitation for execution of the decree started running from that date. Mr. Banerji joined issue on this point and in our opinion, rightly so. (32) The decree was for costs. The decree did not assess or specify the exact amount of costs that the judgment-debtors (appellants herein) were required to pay to the decree holders (respondents herein). The decree provided for 'taxing' of the costs. The costs were taxed subsequently by several orders. The first of those orders was dated 21 July, 1999 and the last of those orders was dated 8 October, 2001. If we adopt an approach favouring the respondents, prior to taxing of the costs, the respondents could not have applied for execution of the decree. The decree did not mention any amount. What would the respondents execute? In that sense the decree was incomplete and unenforceable from the date it was passed till at least 21 July, 1999 when part of the costs was first taxed. In our view, the decree became complete only upon the completion of taxing of the costs on 8 October, 2001, which date in our view should be considered to be the date when the period of limitation for execution of the decree started running. If that to be so, the second execution application is clearly within the prescribed period of limitation. Even if we adopt an approach which is more beneficial to the appellants herein and proceed on the basis that the decree became enforceable on 21 July, 1999 when the costs were first taxed, albeit partly, still the second execution application would be within the prescribed period of limitation having been filed in June 2011. It is settled law that successive execution applications can be filed for execution of a decree and the process of execution is complete only upon recording of a satisfaction by the Executing Court that the decree holder has received the entirety of the fruits of the decree.
(33) Mr. Mitra relied on the Apex Court's decision in Dr. Chiranjilal (D) by LRs (supra). In that case the Apex Court held that the beginning point of the period of limitation for executing a decree cannot be made to depend upon date of engrossment of such a decree on stamp paper. The date of furnishing of stamp paper is an uncertain act, within the domain, purview and control of a party. A party by his own act or by his own failure to furnish stamp paper cannot stop the running of period of limitation. This is because nobody can take advantage of his own wrong.
We have carefully considered the said decision. There can be no quarrel with the proposition of law laid down therein and indeed we are bound by the same. However, the facts of the present case are entirely different. Taxing of the costs as ordered by the English Court's decree was not within the control or domain of the respondents herein. The appellants have not even indicated what the respondents could have done but failed and neglected to do to expedite the taxing of costs by the Registry of the English High court. We cannot, in the absence of positive material before us, presume laches or lack of diligence on the part of the respondents. Hence, in our view, the ratio decidendi of the aforesaid Apex Court decision would not be applicable to the facts of the present case. (34) Mr. Mitra also argued that the case of the decree becoming enforceable on a date subsequent to the date of the decree was not run by the respondents before the learned Single Judge. Hence, such a case should not be countenanced by us. We are unable to agree with this submission. Although from the judgment of the learned Single Judge it appears that Mr. Mitra's contention is factually correct and this case was not argued before the learned Single Judge, yet, we are of the opinion that since this is a point of law which has been urged on the basis of documents that are already on record without introducing any new facts, the respondents should be permitted to urge this point before us.
(35) For the reasons aforestated, we are in agreement with the conclusion reached by the learned Single Judge although for different reasons. In our opinion, the second execution application filed by the respondents being EC No. 323 of 2011 has been filed within the prescribed period of limitation i.e., within 12 years from the date when the decree became enforceable. The appeal is accordingly dismissed along with the connected stay application. There will, however, be no order as to costs.
(36) Urgent certified photocopy of this judgment and order, if applied for, be given to the parties upon compliance of necessary formalities. I agree.
(Jyotirmay Bhattacharya, CJ.) (Arijit Banerjee, J.) Later:
After the judgment is delivered, Mr. Mitra, Learned Sr. Counsel for the appellants prays for stay of execution proceedings pending before the learned Single Judge for a period of three weeks so that the appellants may try their luck before the higher forum. To give an opportunity to the appellants to approach the higher forum, let the execution proceeding remain stayed for a period of three weeks from date.
(Jyotirmay Bhattacharya, CJ.) (Arijit Banerjee, J.)