Gauhati High Court
Prabhu Dayal Agarwal Kohinawal vs Hiranya Khound And Anr on 8 March, 2021
Equivalent citations: AIRONLINE 2021 GAU 361
Author: Parthivjyoti Saikia
Bench: Parthivjyoti Saikia
Page No.# 1/5
GAHC010196482017
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP/159/2017
PRABHU DAYAL AGARWAL KOHINAWAL
S/O LT. GOURIDUTT AGARWAL, R/O 1 NO. BORDUBI GAON, P.O.
HOOGRIJAN, P.S. BORDUBI, DIST. TINSUKIA, ASSAM
VERSUS
HIRANYA KHOUND and ANR.
R/O BORDUBI TOWN BAZAR, P.O. HOOGRIJAN, P.S. BORDUBI, DIST.
TINSUKIA, ASSAM- 786601.
2:SMTI. GITA BHAGWATI KHOUND
W/O SRI HIRANYA KHOUND
R/O BORDUBI TOWN BAZAR
P.O. HOOGRIJAN
P.S. BORDUBI
DIST. TINSUKIA
ASSAM-786601
Advocate for the Petitioner : MR.M PHUKAN
Advocate for the Respondent : MR.K BARUAHR-2
BEFORE
HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA
ORDER
Date : 08-03-2021 Heard Mr. S. Chamaria, learned counsel appearing for the petitioner. Also Heard Mr. P.J. Saikia, the learned counsel appearing for the respondent.
Page No.# 2/5 This application filed u/s 115 of the Code of Civil Procedure, 1908, challenging the legality and validity of the order dated 07.02.2017, passed by the Munsiff No. 1 in Execution Case No. 01/2016 relating to T.S. No. 24/2003.
The petitioner filed a Title Suit against the respondent praying for recovery of vacant possession of the suit house after ejecting the respondent there from. The suit was decreed ex-parte vide judgment and order dated 23.12.2003. The decree was prepared and signed by the judge on 11.04.2004.
Thereafter, on 02.01.2016, the petitioner filed an application for execution of decree. The Court below on 07.02.2017, rejected the execution application filed under Order 21 Rule 11 of the Cr.P.C. The reasons for rejection of the application was that the said petition was barred by the limitation imposed by Article 136 of the Limitation Act, 1963.
Here the only point of determination is from which date the limitation runs. Is it from the date of the judgment and order or from the date of drawal of the decree?
In west Bengal Essential Commodities Supply Corporation -Vs- Swadesh Agro Farming & Storage Pvt. Ltd. & Anr reported in AIR 1999 SC 3421 in Para 8 of the Judgment, the Hon'ble Supreme Court has held as under :
"8. From a perusal of the Article, extracted above, it is clear that for execution of any decree (other than a decree granting a mandatory injunction) or order of a civil court, a period of 12 years is prescribed; Column 3 contains two limbs indicating the time from which period of limitation begins to run, that is, the starting point of limitation; they are: (i) when the decree or order becomes enforceable and (ii) where the decree or any subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods when default in making the payment or delivery in respect of which execution is sought, takes place. The proviso says that there shall be no period of limitation for enforcement or execution of decree granting a perpetual injunction. We are concerned here with the first of the above-mentioned starting points, namely, when the decree or an order becomes enforceable. 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 Page No.# 3/5 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 XX Rule 7 C.P.C. which, inter alia, provides that the decree shall bear the date and the day on which the judgment was pronounced.
Following the decision in West Bengal Essential Commodities Supply Corporation (Supra) in year 2001, in Antonysami appellant Vs. Arulanandam Pillai (D) by L.R..S. and another Respondent reported in AIR 2001 SC 2967 in paragraph 12 held as under:-
"The position is well settled that ordinarily a decree becomes enforceable immediately after the judgment is pronounced. However, there may be situations when a decree may not be enforceable on the date it is passed. Usually this situation arises where in the decree itself the right of the decree-holder depends on happening of certain event or on fulfillment of certain other conditions by the parties in the case or by an external agency, under any provision of law. This position has been clarified in the case of W.B. Essential Commodities Supply Corpn. Vs. Swadesh Agro Farming & Storage Pvt. Ltd. and Another (1999) 8 SCC. Therein this Court repelling the impression that a decree becomes enforceable only when it is drawn up and signed, observed:
From a perusal of the article extracted above, it is clear that for execution of any decree (other than a decree granting a mandatory injunction) or order of a civil court, a period of 12 years is prescribed; column 3 contains two limbs indicating the time from which the period of limitation begins to run, that is, the starting point of limitation; they are (i) when the decree or order becomes enforceable, and (ii) where the decree or any subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods when default in making the payment or delivery in respect of which execution is sought, takes place. The proviso says that there shall be no period of limitation for enforcement or execution of decree granting a perpetual injunction. We are concerned here with the first of the above-mentioned starting points, namely, when the decree or an order becomes enforceable. 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 Page No.# 4/5 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.
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 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.
Under the scheme of the Limitation Act, 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 Chandra Mouli Deva v. Kumar Binoya Nand Singh (AIR 1976 Pat 208) and Sunderlal & Sons v. Yagendra Nath Singh (AIR 1976 Cal 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 (AIR 1974 Cal 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 20 and Order 21 Rule 11 CPC which is clearly impermissible."
Now article 136 of the Limitation Act may be visited. It reads as under:
"136. For the Twelve [When] the decree or order becomes execution of any years enforceable or where the decree or any decree (other subsequent order directs any payment of than a decree money or the delivery of any property to granting a be made at a certain date or at recurring mandatory periods when default in making the Page No.# 5/5 injunction) or payment or delivery in respect of which order of any Civil execution is sought takes place:
Court 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."
Article 136 of the Limitation Act, 1963 runs from the date of the decree not from the date when the decree is actually drawn up and signed by the Judge. An execution application like plaints are to be filed in the Court within the time prescribed by the Limitation Act. The decree holder does not have the benefit of exclusion of time taken for obtaining the certified copy of the decree.
This Court is of the opinion that the Court below has rightly dismissed the execution application, as because the said application was barred by the law of Limitation.
With the aforesaid observation, the present revision petition is found to be devoid of merit and stands dismissed accordingly.
JUDGE Comparing Assistant