Calcutta High Court (Appellete Side)
Tarak Pal vs Jiban Krishna Dey & Ors on 15 January, 2018
Author: Harish Tandon
Bench: Harish Tandon
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE
BEFORE: HON'BLE MR. JUSTICE HARISH TANDON
C.O. 3698 OF 2017
Tarak Pal
-VS-
Jiban Krishna Dey & Ors.
Arun Kr. Sharma,
Swati Sharma
... for the Petitioner
Partha Pratim Roy
... for the Opposite Parties.
Judgment On: 15/01/2018
Harish Tandon, J.:
Initially the point which appears to be somewhat settled become debatable and assumes anxious consideration when a plea is taken by the petitioner that the execution proceeding is barred by limitation having filed after the expiration of 12 years from the date of the decree passed by the Court of first instance.
To elaborate the aforesaid point, it is submitted on behalf of the petitioner that though the suit was decreed on merit but there was no order of stay of the execution proceeding passed in the appeal filed against the said decree and therefore in absence of any fetter to put the decree into execution, the execution proceeding filed after the dismissal of an appeal on technical ground does not postpone the date of limitation provided under Article 136 of the Limitation Act.
To have more clarity on the above plea, the undisputed salient facts are adumbrated herein below:-
the plaintiff / opposite party filed Title Suit No. 667 of 1986 in the Court of learned Munsif, 4th Court, Sealdah against the father of the present petitioner which culminated into a decree for eviction on 31st March, 1996. The petitioner carried the said judgment and decree to the Appellate Court which gave rise to registration of Title Appeal No. 110 of 1996 in the Court of District Judge at Barasat. It is important to record that the petitioner did not file any application for stay of the execution proceeding nor any application restraining the plaintiff / opposite parties from executing the decree were filed in the said appeal. However, the appeal continued to remain pending until 28th August, 2002 when it was dismissed for default for non compliance of the Court's order. The reason for such dismissal was on an earlier date, no steps were taken by the petitioner and the Appellate Court issues show case as to why the appeal be not dismissed for default.
Since no reply to show cause was filed on such date, the Court dismissed the appeal.
Essentially the appeal is dismissed for default and an execution proceeding was filed in the year 2012 i.e. within 10 years from the date of the order of dismissal of the said appeal. A plea is taken in an application under Section 151 of the Code of Civil Procedure that the said execution proceeding is palpably barred by limitation under the provisions of Article 136 of the Limitation Act.
It is axiomatic that under the aforesaid provision the period of limitation for execution of decree for recovery of possession is 12 years when the decree becomes enforceable. On the date of moving the motion, this Court was not inclined to admit the revisional application until two judgments of the Supreme Court rendered in case Ratansingh -Vs- Vijay Singh & Ors. reported in (2001) 1 SCC 469 and Chandi Prasad & Ors. -Vs- Jagdish Prasad & Ors. Reported in (2004) 8 SCC 724 are cited before the Court.
A direction was passed upon the petitioner to serve a copy of the revisional application and after service the decree holder / opposite party has appeared and the revisional application was being heard only on such proposition of law. Naturally the scope of the instant revisional application is restricted on solitary point as indicated hereinabove.
Before this Court proceeds to decide the pivotal issue emerged in the instant revisional application, Article 136 of the Limitation Act is quoted under:-
"Article 136.
For the execution of Twelve Years [When] the decree or order
any decree (other becomes enforceable or
than a decree where the decree or any
granting a subsequent order directs
mandatory any payment of money or
injunction) or order the delivery of any
of any Civil Court 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 or execution
of a decree granting a
perpetual injunction shall
not be subject to any
period of limitation."
From meaningful reading of the aforesaid provision, there is no difficulty in construing the aforesaid provision that the execution of a decree for recovery of possession other that the decree for mandatory injunction is required to be filed within 12 years when the decree becomes enforceable. In order to compute the period of limitation whether the date would reckon from the date of original decree passed by the Court of first instance or from the date when the Appellate Court modifies, varies and / or affirms the said decree is required to be answered in the instant revisional application.
The aforesaid broad legal point has further been squeezed when a submission is advanced by the petitioner that if the appeal is dismissed on merit, the proposition of law is more or less settled that the period of limitation would commence from the date of the appellate decree but such proposition of law would not ordinarily apply when the Appellate Court dismisses the appeal for default or when the application for condonation of delay in filing the belated appeal is dismissed by the Appellate Court.
According to the learned Advocate for the petitioner in such eventualities it is a dismissal of an appeal on technical grounds and not on merit and therefore the doctrine of merger has no applicability. The aforesaid points is buttressed on the aforementioned judgments of the Supreme Court and precisely for such reason this Court admits the revisional application and invited the parties to address the Court. In case of Ratansingh (Supra) the two Judge Bench of the Supreme Court took note of Article 182 of the Limitation Act, 1908 and Section 48 of the Code of Civil Procedure in order to find out whether the dismissal of appeal on technical ground would postpone the date of limitation provided for execution of a decree vis-
a-vis Article 136 of the Limitation Act, 1963. The Apex Court posed a question "when is a decree becoming enforceable?" in juxtaposition with Article 136 of the Limitation Act, 1963 which would appear from paragraph 8 of the said judgment which runs thus:-
"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."
The prelude of such question be seen from the observations recorded in paragraph 9 of the said report which runs thus:-
"9. Filing of an appeal would not affect the enforceability of the decree, unless the appellate court stays its operation. But if the appeal results in a decree that would supersede the decree passed by the lower court then 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."
The Apex Court thus held that in order to become a decree, an adjudication must be made determining the rights of the parties with regard to all or any of the matters constituting the issues in the suit conclusively. It is thus held that dismissal of an appeal as corollary to the dismissal of an application for condonation of delay shall not be construed to be a decree passed by the Appellate Court. What can be seen from the ratio laid down in the said report is that if the appeal is dismissed as a consequence of the dismissal of an application for condonation of delay, it would not tantamount to a merger of a decree of the Court of first instance.
In case of Chandi Prasad & Ors. (Supra) the three Judge Bench of the Apex Court noticed the changes made in Article 136 of the Limitation Act, 1963 vis-a-vis Article 182 of Limitation Act, 1908 and repealing of Section 48 of the Code of Civil Procedure and held that ordinarily the decree of the Court of first instance would be replaced by the judgment rendered by the Appellate Court provided the Appellate Court decided the appeal upon full fledged hearing in presence of both parties. The judgment rendered in Ratansingh (Supra) was also noticed in the said report but was distinguished on factual matrix but the ratio thereof was held to be a good law which can be seen from the findings recorded in paragraph 28 thereof which runs thus:-
"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 Co. (P) Ltd. v. CCE [ILR (2002) 1 Del 33] .] Ratansingh [(2001) 1 SCC 469]"
If the ratio laid down in both the reports is assimilated, it leads to an inescapable conclusion that the doctrine of merger has no manner of applicability in the event the Appellate Court dismisses the appeal on technical grounds and not on merit. It would thus lead to an inevitable conclusion that in such eventuality the limitation under Article 136 of the Limitation Act, 1963 would start from the date of the decree passed by the Court of first instance irrespective of the pendency of an appeal which was ultimately dismissed on technical ground and not on merit. However, the limitation would reckon in the event the appeal is disposed of on merit by the Appellate Court.
The aforesaid conclusion was inevitable until the three Judge Bench decision rendered in case of Shyam Sundar Sarma -Vs- Pannalal Jaiswal & Ors. reported in (2005) 1 SCC 436 was cited before this Court. At the very outset this Court must record that the decision rendered in Ratansingh's case of the two Judge Bench was noticed in the said decision and was expressly held to be not good law in these words:-
"12. Learned counsel placed reliance on the decision in Ratansingh v. Vijaysingh [(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 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 Mela Ram and Sons [1956 SCR 166 : AIR 1956 SC 367] and Sheodan Singh [AIR 1966 SC 1332 : (1966) 3 SCR 300] were not brought to the notice of Their Lordships. The principle laid down by a three-Judge Bench of this Court in Mela Ram and Sons [1956 SCR 166 : AIR 1956 SC 367] and that stated in Sheodan Singh [AIR 1966 SC 1332 : (1966) 3 SCR 300] 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 v. Suresh Chandra Dey [(1932) 59 IA 283 : AIR 1932 PC 165] was referred to, it was not applied on the ground that it was based on Article 182 of the Limitation Act, 1908, and 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 decisions in Mela Ram and Sons [1956 SCR 166 : AIR 1956 SC 367] and Sheodan Singh [AIR 1966 SC 1332 : (1966) 3 SCR 300] and another decision of this Court rendered by two learned Judges in Rani Choudhury v. Lt.-Col. Suraj Jit Choudhury [(1982) 2 SCC 596] . In Essar Constructions v. 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."
The three Judge Bench which decided the Shyam Sundar Sarma's case took note of and relied upon earlier Bench decision of the Apex Court in case of M/s Melaram & Sons -Vs- Commissioner of Income Tax reported in 1956 SCR 166 and the five Judge Bench decision rendered in case of Sheodhan Singh -Vs- Daryao Kunwar reported in AIR 1966 SC 1332 and held that the dismissal of an application under Section 5 of the Limitation Act tantamounts to the dismissal of the main proceeding and therefore the remedy provided for the main proceeding shall be available to an aggrieved person even against the dismissal of an application under Section 5 of the Limitation Act. In other words, it is held that the dismissal of an application under Section 5 of the Limitation Act terminates the main proceeding as well in the following:-
"15. We are not impressed by the argument of learned counsel for the appellant that the decision in Rani Choudhury case [(1982) 2 SCC 596] requires reconsideration. On going through the said decision in the light of the objects and reasons for the introduction of the Explanation to Order 9 Rule 13 and the concept of an appeal as indicated by the Privy Council and this Court in the decisions already cited, the argument that an appeal which is dismissed for default or as barred by limitation because of the dismissal of the application for condoning the delay in filing the same, should be treated on a par with the non-filing of an appeal or the withdrawal of an appeal, cannot be accepted. The argument that since there is no merger of the decree of the trial court in that of the appellate court in a case of this nature and consequently the Explanation should not be applied, cannot also be accepted in the context of what this Court has earlier stated and what we have noticed above."
The instant matter could have been proceeded conveniently that the decision in Ratan Singh's case has no binding force having expressly overruled in a three Judge Bench decision in Shyam Sundar Sharma's case but this Court noticed that the three Judge Bench decision in case of Chandi Prasad & Ors. (Supra) which was decided in contemporaneous time, to be precisely a little earlier than the Shyam Sundar Sharma's case was not noticed.
The reason for stating the aforesaid fact is that if the Co-ordinate Bench did not notice the earlier Co-ordinate Bench decision, the later decision cannot be held to be a good law. It has been held in a five Judge Bench decision in case of Central Board of Dawoodi Bohra Community & Anr. -Vs- State of Maharashtra & Anr. reported in (2005) 2 SCC 673 that the judicial comity or the discipline requires the respect and adherence to a Co-ordinate Bench decision. In the event the later Co-ordinate Bench takes dissenting view, it should refer the matter to the Hon'ble Chief Justice to constitute a Larger Quorum Bench instead of taking a contrary view in these words -
"12. Having carefully considered the submissions made by the learned Senior Counsel for the parties and having examined the law laid down by the Constitution Benches in the abovesaid decisions, we would like to sum up the legal position in the following terms:
(1) The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or coequal strength.
(2) A Bench of lesser quorum cannot disagree or dissent from the view of the law taken by a Bench of larger quorum. In case of doubt all that the Bench of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose decision has come up for consideration. It will be open only for a Bench of coequal strength to express an opinion doubting the correctness of the view taken by the earlier Bench of coequal strength, whereupon the matter may be placed for hearing before a Bench consisting of a quorum larger than the one which pronounced the decision laying down the law the correctness of which is doubted.
(3) The above rules are subject to two exceptions: (i) the abovesaid rules do not bind the discretion of the Chief Justice in whom vests the power of framing the roster and who can direct any particular matter to be placed for hearing before any particular Bench of any strength; and (ii) in spite of the rules laid down hereinabove, if the matter has already come up for hearing before a Bench of larger quorum and that Bench itself feels that the view of the law taken by a Bench of lesser quorum, which view is in doubt, needs correction or reconsideration then by way of exception (and not as a rule) and for reasons given by it, it may proceed to hear the case and examine the correctness of the previous decision in question dispensing with the need of a specific reference or the order of the Chief Justice constituting the Bench and such listing. Such was the situation in Raghubir Singh [(1989) 2 SCC 754] and Hansoli Devi [(2002) 7 SCC 273]."
It is somewhat a settled law that if a lesser Quorum Bench did not consider the decision of a Larger Quorum and takes a contrary view, it cannot have a binding force as the decision of the Larger Quorum should operate in the field as held in the seven Judge Bench decision in case of P.A. Inamdar & Ors. -Vs- State of Maharashtra & Ors. reported in (2005) 6 SCC 537 in the following words:-
"20. Before we embark upon dealing with the issues posed before us for resolution, we would like to make a few preliminary observations as a preface to our judgment inasmuch as that would outline the scope of the controversy with which we are actually dealing here. At the very outset, we may state that our task is not to pronounce our own independent opinion on the several issues which arose for consideration in Pai Foundation [(2002) 8 SCC 481] . Even if we are inclined to disagree with any of the findings amounting to declaration of law by the majority in Pai Foundation [(2002) 8 SCC 481] we cannot; that being a pronouncement by an eleven-Judge Bench, we are bound by it. We cannot express dissent or disagreement howsoever we may be inclined to do so on any of the issues. The real task before us is to cull out the ratio decidendi of Pai Foundation [(2002) 8 SCC 481] and to examine if the explanation or clarification given in Islamic Academy [(2003) 6 SCC 697] runs counter to Pai Foundation [(2002) 8 SCC 481] and if so, to what extent. If we find anything said or held in Islamic Academy [(2003) 6 SCC 697] in conflict with Pai Foundation [(2002) 8 SCC 481] we shall say so as being a departure from the law laid down by Pai Foundation [(2002) 8 SCC 481] and on the principle of binding efficacy of precedents, overrule to that extent the opinion of the Constitution Bench in Islamic Academy [(2003) 6 SCC 697]."
In Sheodan Singh (Supra) the five Judge Bench formulated four questions, one which is relevant in the present purposes is whether the appeals which were dismissed by the High Court, one on the ground of limitation and other on the ground of not printing the records should be treated as finally heard and decided so as to attract the principles of resjudicata. While answering the said point, it is held:-
"It is well settled that where a decree on the merits is appealed from, the decision of the trial court loses its character of finality and what was once res judicata again becomes res sub-judice and it is the decree of the appeal court which will then be res judicata. But if the contention of the appellant were to be accepted and it is held that if the appeal court dismisses the appeal on any preliminary ground, like limitation or default in printing, thus confirming toto the trial court's decision given on merits, the appeal court's decree cannot be res judicata, the result would be that even though the decision of the trial court given on the merits is confirmed by the dismissal of the appeal on a preliminary ground there can never be res judicata. We cannot therefore accept the contention that even though the trial court may have decided the matter on the merits there can be no res judicata if the appeal court dismisses the appeal on a preliminary ground without going into the merits, even though the result of the dismissal of the appeal by the appeal court is confirmation of the decision of the trial court given on the merits. Acceptance of such a proposition will mean that all that the losing party has to do to destroy the effect of a decision given by the trial court on the merits is to file an appeal and let that appeal be dismissed on some preliminary ground, with the result that the decision given on the merits also becomes useless as between the parties. 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."
The law as enunciated hereinabove leaves no doubt that the ratio laid down in Ratansingh (Supra) and Chandi Prasad (Supra) has no legal efficacy and binding force so far as it relates to the merger of a decree of the first instance into the order and decree of the Appellate Court. It is immaterial whether the appeal is dismissed on merit or on technical grounds, it is an order and decree which supersedes decree of the first Court and therefore its enforceability can be counted from the date decree of the order of the Appellate Court. There is a distinction between "executability" and "enforceability" as both the aforesaid words are not synonymous. Ordinarily a decree becomes enforceable from its date unless it is postponed on future or on happening of certain specified events. Ordinarily the filing of an appeal would not affect enforceability of the decree unless the Appellate Court stays its executability and execution case filed during the pendency of the appeal cannot be said to be premature. However, for the purpose of computation of the limitation period the moment the appeal is dismissed on merit or on refusal to condone the delay in its filing or on the technical ground it amount to dismissal of the appeal itself. The law as it stands today on its exposition creates no real or artificial distinction in the manner of its disposal. The moment the appeal is dismissed or disposed of, it is a decree of the Appellate Court from which the period of limitation should be counted for the purpose of execution and enforceability. The concept behind the applicability of the doctrine of merger can be reasonably ascertained that the law does not provide two decrees to operate in the field. The aforesaid principle applies and takes effect irrespective of the fact as to whether the Appellate Court modifies or reverses the decree or affirms the decree of the Lower Court. When a decree passed by a inferior Court is subjected to a remedy available under the law before the superior forum then though the decree under challenge continues to be effective and binding nevertheless its finality is put in jeopardy and the moment the superior Court disposes of the lis before it in any manner it is a decree of the superior Court which is final and binding and an operative decree as the decree of the inferior Court merges with it.
It is thus settled that when there is an appeal from the original decree its enforceability would arise or the time for execution of such decree has to be computed from the date of the appellate decree.
In the instant case though the decree was passed on 31st January, 1996 an appeal was thereafter filed within the period of limitation provided therefore and was dismissed on 28.02.2002 for default and the execution proceeding filed in 2012 is competent and cannot be barred by limitation under Article 136 of the Limitation Act, 1963.
The revisional application therefore fails.
However, there shall be no order as to costs.
(Harish Tandon, J.) Later:
After delivery of judgment in open Court, the learned Advocate appearing for the petitioner submits that they should be given some time to vacate the suit premises.
In view of the above, this Court permits the petitioners to vacate the suit premises on or before the last date of April, 2018 subject to filing of an undertaking by them individually and separately within a week from date.
It is, however, made clear that the petitioners shall pay off the entire arrears of rent at the contractual rate, if not deposited, before the Rent Controller or Court within fortnight from date. The petitioners shall also pay to the decree-holder / opposite party the current occupational charges on and from the month of January till the month of April, 2018.
The petitioners are restrained from changing the nature and character of the suit property or parting with possession in favour of any third party in the meantime.
Let this matter appear on 24th January, 2018 in the supplementary list as "To Be Mentioned".
(Harish Tandon, J.)