Orissa High Court
Upendra Mohanty vs Lokanath Nayak on 28 November, 2014
Author: D. Dash
Bench: D. Dash
W.P.(C) NO. 30 of 2005 07. 28.11.2014
This writ application has been filed challenging an order dated 06.05.2004 passed by the learned Additional District Judge, Bhadrak in Civil Revision No.22 of 2000 carried at the instance of the opposite party no.1.
By the said order, the learned Additional District Judge set aside the order passed by the learned Civil Judge (Junior Division), Bhadrak rejecting the petition filed by the opposite party no.1 in O.S. No.215 of 63 for passing the final decree in the suit in making the preliminary decree final. The parties have been further directed to submit the preliminary decree so as to order and make the same final, in case they possess the same and in the case of non-availability, the learned Civil Judge (Junior Division) has been directed to proceed to make the decree final on the basis of the entries made in the suit register by appointing a Survey Knowing Commissioner.
2. Facts necessary to be stated are as under:-
The father of the opposite party no.1, as the plaintiff, filed the suit for partition. Preliminary decree therein was passed on 07.08.1964 determining the share of the parties. Said preliminary decree was made final on 13.09.1969 by acceptance of the report as well as allotment sheets submitted by the Civil Court Commissioner. The matter thus stood there. Since none of the parties furnished the required stamp papers;
the final decree was not engrossed thereon.
// 2 // 2(a) After long lapse of time after death of the father, the opposite party no.1, sought for grant of certify copy of the preliminary decree and the order making it final. The copy of those as applied for could not be granted in view of the fact that the suit record was no more traceable. Thus the petition stood rejected.
2(b) Finding no other way, the opposite party no.1 filed the petition in the original court to make the preliminary decree final on the basis of the entries made in the suit register indicating the shares of the parties. It was also prayed for deputation of Civil Court Commissioner to go for the measurement afresh for allotment in accordance with that. The Original Court rejected it holding that once final decree being passed there is no scope for again passing the final decree. This order being assailed in revision, the order as stated in the forgoing para has been passed by learned Additional District Judge which is under challenge.
3. Learned counsel for the petitioners in assailing the said order passed by the learned Additional District Judge contended that when admittedly in this suit one final decree has already been passed though formally it not engrossed on the stamp paper, the suit in the eye of law stood finally disposed of and it can by no stretch of imagination be said to be pending simply because no party furnished the stamp paper for the decree to be engrossed thereon. He further submitted that the day when the order was passed for acceptance of the report of the Civil Court Commissioner making the preliminary // 3 // decree final, the suit in eye of law stood disposed of and its disposal cannot await for eternity for non-furnishing of the stamp paper for the decree to be engrossed thereon which is a ministerial act. Therefore, he contended that once the final decree is passed, there cannot be second final decree as it had rightly been ordered in this case by the original court and the parties on the basis of the same having worked out further in accordance with their rights, now after such long lapse of time, it is not permissible to reopen the matter who no further proceeding on the basis of that final decree passed on 13.09.1969 is leviable in the eye of law, more so when it is no more enforceable through an execution petition. So this order of the revisional Court which reopens a disposed of suit whose final decree has become unenforceable is unsustainable in law. Thus he contended that this mischievous move is only to give fresh life to a final decree by getting it passed afresh through it had met its natural death as regards its enforceability. Therefore, he urged to set aside the revisional court's order.
4. Learned counsel for the opposite parties while supporting the order of the revisional court contended that the opposite party no.1 cannot be left remediless in view of the non-availability the case record and the view thus taken and the course adopted in the matter is the only one available to meet to such eventuality and to serve the ends of justice.
5. In order to appreciate the rival contention in judging the legality of the order sought to be quashed // 4 // here, it is felt necessary at first to have thorough discussion as regards the point of law holding the field and getting attracted for the purpose.
It is the settled position of law that a suit for partition after passing of preliminary decree, remains pending and there can be more than one preliminary decree if situations so demand. The suit culminates after passing of final decree and there is no period of limitation for making a prayer to pass final decree in accordance with preliminary decree. It is also the settled position of law that notwithstanding the position of the party either as plaintiff or defendant, he can make an application for making the preliminary decree final as in that suit, the parties are permitted to have their position inter-changed, if so necessary.
6. Undoubtedly, the facts giving rise to this proceeding are peculiar and very rarely arises. Therefore, this Court feel for a detail examination so as to address the submissions advanced.
7. The suit when is one for partition. After passing of the final decree, the parties remain under an obligation for furnishing required stamp papers for drafting of the final decree and its engrossment over the same. Thus, after passing of the final decree, the parties can levy the execution proceeding to enforce the said decree. Now for the purpose of filing said proceeding, Article - 136 of the Limitation Act comes into play. It prescribes a period of 12 years from the date when the decree becomes enforceable.
// 5 //
8. The question vexed the court in case of Biswapati Dey Vrs. Kennsington Sore; AIR 1972 Calcutta 172. It was held therein that the period spent to supply of stamp papers has got nothing to do with the enforceability of the decree. Furnishing of stamp paper was an act entirely within the domain and power of the party and any delay in the matter of furnishing of the same cannot possibly be said to be putting a stop to the period of limitation to run. No one can take advantage of his own wrong. Thus, ultimately it was held that there cannot be suspension of running of period of limitation by the reason of one's own failure. So, in that case, the period of 12 years was computed from the date when order was passed in making the preliminary decree final upon acceptance of the report of the Survey Knowing Commissioner who had completed his job as ordained in the preliminary decree.
9. At this stage, this Court being not able to resist the temptation feel, it to quote para 14 of the decision of Apex Court in case of Hameed Joharan v. Abdul Salam; AIR 2001 SC 3404.
"14. Needless to record that engrossment of stamped paper would undoubtedly render and imply however, that the enforceability of the decree would remain suspended until furnishing of the stamp papers- this is opposed to the fundamental principle of which the statutes of limitation are founded. It cannot, but be the general policy of our law to use the legal diligence and this has been the consistent legal theory from the ancient times. Even the doctrine of prescription in Roman Law // 6 // prescribes such a concept of legal diligence and since its incorporation therein, the doctrine has always been favoured rather than claiming disfavour. Law Courts never tolerate an indolent litigant since delay defeats equity. The Latin maxim 'vigilan ibus non dormientibus jure subveniunt' (law assists those who are vigilant and not those who are indolent). As a matter of fact, lapse of time is a species for forfeiture of right. Wood, V.C. in Manby v. Bewicke (1857) 3 K and J 342 at 352) stated;
"...........the legislature has in this, as in every civilized country that has ever existed, though fit to prescribe certain limitations of time, after which persons may suppose themselves to be in peaceful possession of their property and capable of transmitting the estates of which they are in possession, without any apprehension of the title being impugned by litigation in respect of transactions which occurred at a distant period, when evidence in support of their own title may be most difficult to obtain."
10. Referring to the case of West Bengal Essential Commodities Supply Corroboration Vrs. Swadesh Agro Farming and Storage Private Limited; AIR 1999 SC 3421, where the Apex Court had the occasion of considering the question of Limitation under Article 136 of the Limitation Act and upon consideration of a decision in case of Yeswant Deorao Deshmukh Vrs. Walchand Ramchand Kothari; AIR 1951 SC 16, it has been held.
// 7 // "15. xxxx xxxxx xxxxx xxxx That under the scheme of the Limitation Act, execution applications like plaints have to be presented in Court within the time prescribed by the Limitation Act. A decree holder, this Court went on to record does not have the benefit of exclusion of the time taken for obtaining even 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 fine, this Court observed that 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 O.20 and O.21, R.11, C.P.C. which is clearly impermissible."
"16. The observation thus in W.B. Essential Commodities Supply Corporation (supra) lends concurrence to the view expressed about proceeding to the question of enforceability of the decree as laid down in the Article 136 of the Limitation Act."
11. In that case, the court listed out three several situation in which a decree may not be enforceable on the date, it is passed coming to the suit for partition of immovable properties the observation in that case of W.B. Essential Commodities Supply Corporation (supra) has been quoted as under:-
"17. xxxx xxxx xxxx xxxx Thirdly, in a suit for partition of immovable properties after passing of preliminary decree when, in // 8 // final decree proceedings, an order is passed by the Court declaring the rights of the parties in the suit properties, it is not executable till final decree is engrossed on non- judicial stamp paper supplied by the parties within the time specified by the Court and the same is signed by the Judge and sealed. It is in this context that the observations of this Court in Shankar Balwant Lokhande v. Chandrakant Shankar Lokhande (1995) 3 SCC 413 have to be understood. These observations do not apply to a money decree, and therefore the appellant can derive no benefit from them."
"18. The third situation, as referred above, has been taken note of, by reason of the decision of this Court in the case of Shankar Balwant Lokhande (dead) by LRs. V. Chandrakant Shankar Lokhande (1995) 3 SCC 413 wherein Remaswamy, J. speaking for the Bench came to a conclusion that ".......... After final decree is passed and a direction is issued to pay stamped papers for engrossing final decree thereon and the same is duly engrossed on stamped paper(s), it becomes executable or becomes an instrument duly stamped. Thus, condition precedent is to draw up a final decree and then to engross it on stamped paper(s) of required value. These two acts together constitute final decree crystallizing the rights of the parties in terms of the preliminary decree. Till then, there is no executable decree as envisaged in O.20, R.18(2) attracting residuary Art. 182 of the old Limitation Act."
// 9 // "19. Be it noticed that Lokhande's decision (supra) was decided against the judgment of the High Court recording a finding that limitation for executing a final decree in a suit for partition starts on the date on which the final decree is passed and not from any subsequent dates on which the parties supply the non-judicial stamp for engrossing the final decree and when the Court engrosses the final decree on the stamp paper and signs it-this view of the High Court was negatived and this Court came to a contra conclusion as noticed herein- before.
12. In that Hamid Joharan Vrs. Abdul Salam; (supra) all those decisions were discussed and ultimately the decision in case of Bholanath Vrs. Madan Mohan; AIR 1988 Calcutta- 1, was over ruled holding that the court has misread and misapplied the law and the appreciation of legislative intent has been found to have not been effected in a manner apposite to the intent rather had a quick shift therefrom by reason where for and thus there has been a manifest error in recording that the period of limitation for execution of a final decree for partition shall not begin to run until the decree is engrossed on requisite stamp paper.
13. It has further been held therein that section 2(15) of the Stamp Act, includes a decree of partition and section 35 of the Stamp Act 1899 lays down a bar in the matter of insufficient stamp being admitted in the evidence or being acted upon- but that does not mean that the prescribed period shall remain suspended until the stamp paper is // 10 // furnished and the decree is drawn thereon and subsequently signed by the judge. The intent of the legislature in engrafting the Limitation Act shall have to be the given its proper weightage. Absurdity cannot be the out come of the interpretation by a court order and whenever there is even a possibility of such absurdity, it would be plain exercise of judicial power to repel the same rather than encouraging it. The whole purport of the Indian Stamp Act is to making available certain dues and to collect revenue but it does not mean and imply over riding the effect over a another statute operating on a completely different sphere. The above decision of the Hon'ble Apex Court again come to be considered by a larger Bench in case of Dr. Chiranji Lal - Vrs.- Hari Das; AIR 2005 SC 2564 and has been fully approved with the view that the period of limitation for enforcing the decree in a suit for partition is not contingent upon the engrossment decree of stamp paper. Engrossment of decree of stamp paper relate back to the date of decree and thus, the period of limitation for its execution starts running from the date of the decree i.e., the order passed in a partition suit in making the preliminary decree final upon acceptance of the report of the Survey Knowing Commissioner.
14. In this case, admittedly a final decree has already been passed. Due of non-availability of the record, the learned Additional District Judge, in his wisdom with a view to serve the ends of justice and as it appears, considering it to be not the fault on the part of the Opp.
// 11 // Party No. 1 has felt that it would be denial of the justice unless the course is adopted that the court is directed to pass a final decree afresh looking to the entries in the suit register and further going ahead with deputation of the Survey Knowing Commissioner. While doing so, it appears that the learned Additional District Judge while showing anxiety to redress the grievance of the Opp. Party No. 1, has not kept in mind that by then the period of enforcing the final decree by filing an application to that effect for its execution had long since expired and for that taking up that exercise again it would serve absolutely no useful purpose. It has also failed to take one more important aspect into consideration which should have heavily weighed in mind that rather it may be a mischievous move of the O.P. No. 1 that when he having remained in deep slumber for a such long period and being legally not in a position to levy the execution case would now be getting further advantage and the available legal action which had long since expired would get fresh life to march ahead. Thus here when the final decree passed has lost its enforceability at the instance of the parties who were entitled to enforce the same, in my considered view, there was no legal justification for the learned Additional District Judge to pass an order to direct the original court to sit over the final decree proceeding again as if it was all the fault of the court and system for which the party should not suffer.
15. It would be again running contrary to the settled position of law that though in a suit for partition there // 12 // can be more than one preliminary decree in certain eventuality, the final decree is passed once unless its again burdened with same kind of further enquiry which is not the case here. Be that as it may, I do not feel it necessary to delve further into those aspects here which may carry simply the academic interest but may not be relevant for the present purpose.
It has to be kept in mind that the party himself was at fault and he having lost the right to enforce the decree is thereby being allowed to take advantage of his own fault by again seeking determination of the interest of all those parties who might have altered their position in the meantime and there might have been a lot of changes and alterations not only in respect of the subject matter but also other non-parties standing in between, in view of intervening events for such long lapse of time. Moreover, even if such a final decree is passed, in law it has to relegate back to the date of final decree as originally passed which again is not permissible. Then also this final decree would be rendered inexecutable having lost its enforceability. This is not permissible since the court should not pass a decree knowing fully well that it would be rendered inexecutable for being barred under law of limitation and also contrary to settled position of law that notwithstanding the merit of the claim of a party, the court lacks the power to pass a decree in view of lapse of limitation. Thus this final decree in that event will remain worth the value as a framed photograph to be hung as a show piece and nothing else.
// 13 // Therefore, in my considered view the O.P. No. 1 should have been shown the door of exit at the very moment when he approached the court with the application without least spending time in view of the provision of law as above discussed to put a quietus to the lis.
Thus the order of learned Additional District Judge if allowed to stand may unsettle the long settled state of things in every respect affecting the parties and others coming into the arena by now at this distance of time, at the instance of an indolent litigant and by tolerating him in opposition to the general policy of legal diligence which should be avoided as it would encourage indolent litigant instead of being repelled.
16. For the aforesaid discussion, the order dated 06.05.2004 passed by the learned Additional District Judge, Bhadrak in Civil Revision No. 22 of 2000 is liable to be quashed which is hereby done.
17. The writ application stands allowed. Cost assessed at ` 2000/- (Rupees two thousand) only to be paid by O.P. No. 1 to the petitioners.
Narayan ..........................
D. Dash, J.