Patna High Court
Sardar Guru Dayal Singh vs Ramchandra Kushiari And Ors. on 27 March, 1970
Equivalent citations: AIR1971PAT190, AIR 1971 PATNA 190
JUDGMENT B.D. Singh, J.
1. This appeal by the sole appellant who was decree-holder in the executing court, is directed against the order of learned Subordinate Judge, dated 20-5-67 passed in Miscellaneous Case No. 1004 of 1966, holding that the execution levied by the appellant in Execution Case No. 59 of 1966 was barred under the provisions of Article 182 of the Indian Limitation Act, 1908 (hereinafter to be referred to as 'the Act'). The respondents were the judgment-debtors in the said execution case.
2. In order to appreciate the points for decision in this appeal, it will be necessary to set out the facts in brief. The appellant instituted Misc. Case No. 20 of 1950 in the court of Subordinate Judge, Hazaribagh for appointment of arbitrator for examining the accounts of the partnership business maintained by Mahendra Lal Kushiari, for recovery and deciding disputes between the parties and for valuing the effects, and goodwill of the partnership business to enable the appellant to purchase the interest of Mahendra Lal Kushiari at half the valuation so made minus any sum that might be found due from Mahendra Lal Kushiari to the appellant. The Subordinate Judge appointed arbitrators, who submitted award on 25-2-1952. Objection was raised to the award. However, the court overruled the objection, and confirmed the award by order dated the llth July, 1952. The decree was prepared and signed on 12-10-63.
According to the decree the appellant was entitled to recover a total sum of Rs. 7,895/- from Mahendra Lal Kushiari. The appellant put the decree in execution on 20-9-66 in Execution Case No. 59 of 1966 against the respondents, they being the sons, daughters and widow of Mahendra Lal Kushiari who died before the execution was levied. Ram-chandra Kushiari respondent No. 1, one of the sons of Mahendra Lal Kushiari, on being served with a notice under Order 21, Rule 22 of the Civil Procedure Code (hereinafter referred to as 'the Code'), filed an objection to the maintainability of the said execution case. His objection was registered as Misc. Case No. 1004 of 1966. Respondent No. 1 in the rejoinder application inter alia pleaded that the said execution case was barred under Article 182 of the Act, and that Mahendra Lal Kushiari having died on 19-2-62 prior to the drawing up of the decree the decree was a nullity, having been drawn up against a dead person.
No rejoinder to the said application of respondent No. 1 was filed on behalf of the appellant. However, they appeared before the court of Subordinate Judge, and opposed the contention advanced on behalf of respondent No. 1. The learned Subordinate Judge after hearing the parties held that the decree was not a nullity, but the execution of the decree was barred under Article 182 of the Act. Hence, this appeal.
3. Mr. Prem Lall, learned counsel appearing on behalf of the appellant, assailed the impugned order of the learned Subordinate Judge, and contended that he erred in holding that the execution was time barred under Article 182 of the Act. He submitted that the learned Subordinate Judge was in error in holding the date of the decree to be llth July, 1952, based on the date on which the award was confirmed. According to him, the date of the decree was 12th of October. 1963 on which date apparently the decree was drawn up and signed. According to him, from 12th of October, 1963 the period of three years prescribed under Article 182 of the Act would start running. Therefore, the execution application which was filed by the appellant on 20-9-66 was within the prescribed period and it was not barred by limitation under Article 182 of the Act. The appellant could not have levied the execution in the absence of the decree. The appellant was not in any way to be blamed. For the laches of the court or its officers in not preparing the decree earlier to enable the appellant to execute the decree within the prescribed period of limitation the appellant should not be made to suffer.
In order to substantiate his contention he relied on a decision of this Court in Kali Prasad Sahu v. Mt. Bibi Aziz Fatma, AIR 1938 Pat 149, wherein Agarwala, J. was considering as to from which date the period of limitation prescribed under Article 182 of the Act would start running. In that case the judgment of the suit was passed on the 22nd of May, 1933. The decree was drawn up on the 24th of May, 1933. The application for execution was made on the 25th of May, 1936, 24th being a Sunday.
The lower court dismissed the execution case on the ground that the application should have been made within three years of 22nd May. 1933, i.e., when the judgment was passed. Aggrieved by the said order, the decree-holder filed a civil revision in the High Court. It was contended on behalf of the decree-holder that the executing court could not have gone behind the decree which was dated the 24th May, 1933 and the limitation must be computed from that date, i.e., 24th May, 1933. It was further contended that either the date of the decree was the date on which it was drawn up and not the date of the judgment or that if the decree should bear the date of the judgment in accordance with the provisions of Order 20. Rule 7 of the Code, then the decree-holder was misled by the copy of the decree which was furnished to him, and in that case he should not be prejudiced by the court's mistake. Agarwala. J. relying on a decision of the Calcutta High Court in Nalini Kanta Roy v. Kamaraddi, AIR 1933 Cal 239, observed that the date of the decree was the 24th of May, 1933 and the application was within time, and set aside the order of the court below.
It will be convenient to refer also to the decision of the Calcutta High Court reported in AIR 1933 Cal 239 (supra) on which reliance was placed by Agarwala, J. In the Calcutta case the facts in brief were that the judgment was dated llth February, 1929. By mistake the decree, instead of bearing the date of the judgment bore the date 16th February, 1929. The decree-holder took certified copy of that portion of the summons book which contained the formal decree and was, therefore, led to believe that the suit was decreed on 16th February, 1929. His application for execution was filed on 15th February, 1932 and was, therefore, within the time if the decree was passed on 16th February, 1929 but beyond time from the date of actual decision, i.e., llth February, 1929. Jack, J. observed:
"..... It is true that the Court has no power to extend the time of limitation. But in the circumstances of the case in the interest of justice, I think the decree ought to be regarded as having been passed on 16th February, 1929 on the principle 'actus curiae neminem gravabit' which has been followed in a number of cases of this nature, one of which is referred to by the learned advocate for" the petitioner. Civil Revision No. 1077 of 1929, of this Court .....".
I will deal with these cases more fully at subsequent stage. Suffice it to mention that in these two cases there was definite case of the parties that they were misled due to the mistake of the date made in the decree. On the facts and in the circumstances of the instant case, no such case has been made out on behalf of the appellant.
4. Learned counsel further relied on a decision in Maharaja of Darbhanga (Rameshwar Singh) v. Homeshwar Singh, 48 Ind App 17 = (AIR 1921 PC 31) where their Lordships were dealing with the provisions contained under Articles 181 and 182 of the Act. Their Lordships observed that Article 182 of Schedule I of the Act which limits the time within which a decree can be executed, applies only if the decree is in such a form as to render it capable in the circumstances of being enforced- The facts in that case were that in 1906 a decree was made which did not provide that the judgment-debtor should be personally liable, but was confined to ordering that the decretal sum should be realised by the sale of the property of his deceased brother in his possession. The judgment-debtor did not obtain possession of the property in question until 1914, after a decision of the Privy Council in his favour; he had in 1908 obtained a decree for its possession from a Subordinate Judge but that decree had been stayed and afterwards set aside by the High Court. In December, 1914, application was made to execute the decree of 1906. Their Lordships held that the execution of the decree was not barred, (1) since until 1914 it was not capable of execution, and Article 182 consequently did not apply; and (2) since an application to enforce it was necessary, and under Article 181 that application could be made within three years of the time when the right to apply first accrued, which was in 1914.
In my opinion, the facts of that case were different from those of the instant case. It is evident that in that case the judgment-debtor did not obtain all the property in possession until 1914 after decision of the Privy Council in his favour; he had in 1908 obtained decree for its possession from a Subordinate Judge, but that decree had been stayed and afterwards set aside by the High Court. Obviously in the circumstances of that case, due to the order of the court the decree was not capable of execution. Hence, it was held that it was not time barred and the period of limitation was ordered to run from the date when the decree became capable of being executed.
Learned counsel further referred to a Bench decision of the Allahabad High Court in Anant Ram v. Basudeo Sahai, AIR 1957 All 114. In that case also Article 182 of the Act and Order 20, Rule 7 of the Code fell for consideration. The facts in that case, in brief, were that the order for preparation of final decree was passed on 8-7-37. The final decree was actually prepared on 23-7-37. The decree mentioned at the end;
"It is issued today the 23rd July, 1937 under my signature and seal of the Court". Below that appeared the signatures of the Civil Judge with the same date 23-7-1937. as the date of his signing the decree.
The first execution application was presented on 17-7-1940, within three years of the date the final decree bore, but beyond three years of the date on which the order for preparation of the final decree was passed. Those proceedings became infructuous though the office had reported that the execution application was filed beyond time and the decree-holder had replied that the application was within limitation on account of the provisions of the temporary postponement of Execution of Decrees Act, 1937 (Act X of 1937). On 4-8-42, the decree-holder filed the execution application. The papers were ordered to be sent to the Collector for further proceedings on 11-8-42 without issuing any notice of the execution application to the judgment-debtor. The judgment-debtor subsequently filed an application under Section 47 of the Code objecting to the execution of the decree on the ground of limitation. The execution court agreed with the judgment-debtor and held the execution to be barred by time.
On appeal by the decree-holder, the court of appeal below held that the application was within time because the decree-holder was misled by the date of the decree being mentioned as 23-7-37 in the decree itself. It relied on two cases in support of its view. The cases were AIR 1933 Cal 239 (supra) and AIR 1938 Pat 149 (supra). Against the order that the execution should proceed the application for execution being within limitation, the judgment-debtor preferred the appeal before the Allahabad High Court. Their Lordships observed that Order 20, Rule 7 of the Code did not apply to a case where a preliminary and a final decree is contemplated. The order for the preparation of a final decree is not a judgment. It does not adjudicate upon the rights of the parties. The rights of a decree-holder in case judgment-debtor makes default in payment are decided and laid down in the preliminary decree. What the court has to decide after presentation of an application for the preparation of the final decree is the objection of the judgment-debtor about some alleged payment to the decree-holder.
It may be noted that their Lordships were dealing with the judgment where preliminary and final decrees were required, but in the instant case no question of preliminary decree and final decree arises. Therefore, I am unable to draw any guideline from that judgment while deciding this case.
5. On the other hand, Mr. Shilesh Chandra Mishra, appearing on behalf of the respondents, contended that on the facts and in the circumstances of the case, the limitation would run from llth of July. 1952, the date on which the award was confirmed and not from the date on which the decree was signed, namely, 12-10-63. He drew my attention to the provisions contained under Section 333 of the Code which reads:--
"The Court, after the case has been heard, shall pronounce judgment, and on such judgment a decree shall follow." He also referred to Order 20, Rule 7 of the Code which runs--
"The decree shall bear date the day on which the judgment was pronounced and, when the Judge has satisfied himself that the decree has been drawn up in accordance with the judgment, he shall sign the decree."
He submitted that the decree, according to the said provision contained under Order 20, Rule 7 of the Code, must bear the date the day on which the judgment was pronounced. In the instant case, the date of the judgment was 11th of July, 1952 when the award was confirmed and it was from that date that the period of limitation would start running.
He further contended that even if the decree was not prepared within the course of three years from llth July, 1952, the appellant could have levied the execution within the prescribed period without the decree. It was not necessary for him to wait for the drawing up of the decree. He suffered because of his own laches. He did not even take steps or file any application or move the court for early drawing up of the decree. He urged that the order passed by the Subordinate Judge on llth July. 1952 was executable.
6. From the contentions raised on behalf of the parties as well as from the facts and circumstances of the instant case, three moot questions arise for consideration by this Court. They are (i) whether 12th October, 1963, the date on which decree in the instant case was signed, or the llth July 1952, the date on which the learned Subordinate Judge confirmed the award, should be considered as the date of the decree for the purpose of counting the period of limitation prescribed under Article 182 of the Act; (ii) whether in the absence of a correct date as required under Order 20, Rule 7 of the Code, the decree-holder-appellant was in any way misled, because the decree was drawn up and signed on 12-10-63; and (iii) whether the appellant could have levied the execution on the basis of the order of the Subordinate Judge dated the llth July, 1952 without its decree having been drawn up.
7. I have already dealt with the submissions and the citations made by Mr. Lall on behalf of the appellant. Now I propose to discuss the various decisions relied upon by learned counsel for the respondents in support of his contention. Mr. Mishra referred to a Bench decision of this Court in Jagdeo Sao v. Basudeo Narain Singh, AIR 1954 Pat 92. In that case the main question for consideration before Rai and Sinha, JJ. was whether execution could be levied even in the absence of decree. In that connection their Lordships dealt with the provisions contained under Order 21, Rules 10, 11 and 17 of the Code.
The fact which gave rise to the consideration may be briefly set out. The decree-holders-respondents in that case filed Title Suit No. 127/6 of 1949/1951 for declaration of their title and recovery of possession in respect of certain piece of land. The plaintiff claimed the disputed land as bakasht while the defendants claimed different areas out of the areas in dispute as the land settled with them for cultivation from time to time for which they were entitled to remain in possession. The trial court decreed the suit holding that the lands in dispute were the bakasht lands of the plaintiffs and the defendants had acquired no right to remain in possession of the same.
The order portion of the judgment in that case ran thus:--
"Hence, it is ordered that the suit be decreed on contest against defendants 1 to 17 and ex parte against the rest with costs payable by the contesting defendants. Pleader's fee at 10 per cent." On 28-11-1951, the decree-holders filed a petition for execution without a copy of the decree which had not been formally drawn up by then (sic). On this application Execution Case No. 19 of 1951, of the court of Additional Subordinate Judge was started. In their application the decree-holders had given reasons for immediate delivery of possession to them. The application was considered on 29-11-51 on which date the following order was passed by the executing court--
"Issue delivery of possession as prayed returnable by 5-12-1951. I am satisfied for the reason stated in the petition supported by an affidavit that the issue of notice under Order 21, Rule 22 be dispensed with."
The delivery of possession, it may be noted, was given on 30-11-1951, The decree was, however subsequently drawn up and it was actually signed on 5-12-51.
In that case it was contended on behalf of the judgment-debtor-appellants, as in the instant case, that no execution was maintainable, until the decree had been prepared and signed. It was further submitted that the executing court had no jurisdiction to pass the order on 29-11-51 for the issue of writ of delivery of possession. According to the appellants, until the decree was drawn up nobody had either any right of appeal or any right of levying execution. In support of the contention Order 41, Rule 1 (1) of the Code was referred. It was also contended that the appellants could not have appealed until 5-12-51 when the decree was signed. But before such right had accrued in their favour the lands in their possession were taken away from, them by delivery of possession on 30-11-51, which according to learned counsel for the appellants was highly un-just.
Their Lordships repelled the contentions raised on behalf of the judgment-debtor-appellants and at page 93 in paragraph 9 held as follows:--
"..... It is admitted on all hands that a decree bears the date of the judgment. On the wording of the order portion of the judgment of the present case, therefore, the present decree-holders were no doubt decree-holders on the date they filed the petition for execution. The decree may be signed sometimes later, but the right of the decree-holder under the decree commences from the date of the judgment which is the date of the decree. In my opinion, therefore, the plaintiffs-respondents had every right to file an application for delivery of possession on 28-11-1951. Order 21, Rule 11 (2), Civil P. C. provides the form in which an application for execution has to be filed. Column 3 requires only the date of the decree to be given. This can be supplied from the date of the judgment which is the date of the decree. Order 21, Rule 11(3). Civil P. C. runs thus:--
"The Court to which an application is made under Sub-rule (2) may require the applicant to produce a certified copy of the decree".
Order 21, Rule 11, Civil P. C., therefore, does not make it obligatory for the decree-holder to file a copy of the decree along with the petition of execution. Order 21, Rules 12, 13 and 14 also do not require a copy of the decree to be filed along with execution petition. Order 21, Rule 17 (1) as amended by this Court runs thus:--
"On receiving an application for the execution of a decree as provided by Rule 11, Sub-rule (2) the Court shall ascertain whether such of the requirements of Rules 11 to 14 as may be applicable to the case have been complied with and, if they have not been complied with, the Court shall allow the defect to be remedied then and there or within a tune to be fixed by it, and if the decree-holder fails to remedy the defect within such time the Court may reject the application."
In Rajeshwar Rai v. Shankar Rai, AIR 1962 Pat 398, Untwalia, J. also while considering the provisions contained under Sections 33 2(2), (3) & (9), Order 20, Rules 1, 6(1) & 7 and Order 21, Rule 10 of the Code observed at page 399 in paragraph 3 that in an appeal the filing of a copy of the decree is essential and Imperative, and, therefore, no appeal can be filed unless it is accompanied by a formal and written decree which is prepared under Section 33 of the Code, but an execution can be filed even though the formal and written decree has not been prepared. Both for the filing of the appeal and the execution the starting point of limitation is the date of the decree, i.e. the date of the judgment. His Lordship for the above proposition relied on the decision in AIR 1954 Pat 92 (supra). Untwalia, J. at page 400 also observed that while the time taken in obtaining the copy of the decree for the purpose of appeal is excluded under Section 12 of the Act, no such exclusion of time is made for the filing of the execution.
Following the above observations of their Lordships, I venture to answer question No. (iii) (i?) mentioned above, in affirmative, thereby holding that the appellant could have levied execution even prior to the decree being formally drawn up, in order to save limitation prescribed under Article 182 of the Act.
However. Mr. Lall urged that the judgment dated 11-7-52 of the learned Subordinate Judge in Misc. Case No. 20 of 1950, the relevant portion of which reads:
"..... I do not find it necessary to set aside the award as prayed for. The award is accordingly confirmed. Let a decree be drawn up in the terms thereof. No cost to any party for this misc. case."
was not executable in the absence of the decree. He submitted that only a judgment which is pronounced under Section 33 of the Code could have been executed In the absence of the decree.
He contended that the said judgment dated the llth July, 1952 did not mention therein the amount for which the appellant was entitled. It simply confirmed the award without mentioning the amount which the appellant was entitled to get, It is only by reference to the award dated 25-2-52 that it can be found out that the appellant was entitled to recover Rs. 7,895/- from the judgment-debtor-respondents. The said award, according to him, was passed under Section 14 of the Arbitration Act; 1940. That had not the force of a judgment. It was only the judgment dated 11-7-52 which was passed under Section 17 of the Act, that had the force of a judgment, but in that we do not find any mention regarding the amount of Rs. 7,895/- which was found due to the appellant recoverable from the respondents.
In my judgment, this contention of Mr. Lall cannot be accepted. In the judgment dated 11-7-52 the learned Subordinate Judge clearly mentioned that the award was confirmed. The dictionary meaning of the word "confirm" is "establish more firmly". In legal parlance, with reference to the context it means "uphold". Therefore, the award of the arbitrators dated 25-2-52 has become part of the judgment dated 11-7-52 and both have to be read together. It is well established that a judgment and a decree passed in accordance with an award may constitute res judicata as much as a judgment and a decree which result from the decision of the court after the matter has been brought to an end. Besides, the language of Section 33 of the Code, which I have quoted earlier, is similar to that of Section 17 of the Arbitration Act. 1940 which reads:--
"Where the Court sees no cause to remit the award or any of the matters referred to arbitration for reconsideration or to set aside the award, the Court shall ..... proceed to pronounce the judgment according to the award, and upon the judgment so pronounced a decree shall follow ....."
Therefore, in my considered opinion, the appellant could have levied execution on the basis of the judgment dated 11-7-52 In the absence of a decree following from the said judgment.
8. Now I propose to answer questions (i) and (ii) together. In my opinion, reading Order 20, Rule 7 of the Code, it is clear that a decree of a court becomes effective from the moment the judgment in the matter is pronounced by the court concerned and that is the date which the decree must bear. The decree, as drawn up by the court, is a formal expression of the decision of the court, and it must bear the date on which the judgment is pronounced, though, when the Judge signs the decree after satisfying himself that the decree is in accordance with the judgment of the court, some time must elapse between the date when the judgment was pronounced and the date when the Judge signs the decree. The proceedings in the suit are at an end when the judgment is pronounced and the signing of the decree which is purely consequential administrative function, cannot be said to be a further proceeding in the suit.
Mr. Mishra referred to a long catena of cases in which it has been held that limitation for an application for execution under Article 182 of the Act commences from the date of pronouncement of the judgment and not from the date on which the decree is prepared and signed. First of all I wish to deal with the cases of this court before I take up for consideration the cases of the other High Courts on this point. In Suraj Deo Narayan Singh v. Musahrao Raut AIR 1916 Pat 135, Roe and Jwala Prasad, JJ. were considering Article 182 of the Act. In that case a decree for redemption was passed on 27th July, 1909. The District Judge appointed a Commissioner to find out the exact sum to be paid in redemption, though that was only a matter of official routine. He actually signed the decree on 23rd February, 1910. The defendant applied on 29th January, 1913 to execute that portion of the decree which awarded to him costs payable by the plaintiff. Their Lordships held that the time commenced to run from the date when the decree was pronounced on 27th July, 1909 and that the application was barred.
In Hira Lal Sahu v. Jamuna Prasad Singh AIR 1920 Pat 111 (1) Courts and Adami. JJ. had occasion to consider the provisions of Article 182 of the Act and Order 20, Rule 7 of the Code. In that case the judgment was dated the 1st of May, 1915. The date of the judgment and the decree was 1-5-1915. The decree was drawn up and signed on 15-5-1915. The application for execution was filed on 13-5-1918. Their Lordships observed that the limitation for execution of a decree begins to run from the date of the decree and that date, under Order 20, Rule 7 of the Code, is the date on which the judgment was pronounced.
The other decision relied upon is in Sagarmal Marwari v. Lachmisaran Misir, AIR 1923 Pat 129. In that case the facts were as follows. The case was heard before the learned District Judge of Bhagalpur on the 6th January, 1922. On the 8th January after the hearing, the learned Judge left Bhagalpur for Dumka to hold sessions there. On the 17th January he appears to have written a judgment and signed it, but this was not communicated to anybody and certainly not delivered in open court as provided by Order XX, Rule 1. On the 4th February he returned to Bhagalpur and on the 10th February a decree was prepared after the signatures of the pleaders on each side had been taken. Nobody apparently knew anything about the judgment having been written or signed by the learned Judge until the 10th February and in fact as the learned District Judge himself said, there was no delivery of judgment in Bhagalpur before that date; nor did it appear that there was any delivery of judgment anywhere else.
The appeal against the said judgment was filed in this court. It was contended by the respondents that the judgment having been written by learned Judge and signed on 17th January, although it was not pronounced on that date, the limitation period ran from that date. It was observed by Dawson Miller, C. J., Mullick. J. agreeing "..... I am entirely unable to accept this view. There was in fact no judgment delivered until it was pronounced in open court according to the rules. The decree was prepared on the 10th February and I understand it was dated the 17th January the day upon which the judgment was written and signed by the learned Judge although not communicated to anybody. Under the Limitation Act the period of limitation begins from the date of the decree or order appealed from and under Order XX, Rule 7, the decree shall bear date, the day on which the judgment was pronounced. Therefore, even if the decree was dated the 17th January that date in fact was altogether wrong because at that time no judgment had been pronounced at all and whatever the date may be upon the face of the decree it ought to be dated the 10th February when the judgment was pronounced. In these circumstances it seems to me quite clear that the period of limitation begins from the 10th February . . . . ."
9. It may be mentioned here that learned counsel for the appellant while referring to the judgment in AIR 1957 All 114 (supra) had drawn my attention to their Lordships' observation at page 115 in paragraph 5 wherein their Lordships observed that Order 20, Rule 7 of the Code provides what date should be given to the decree. It does not provide that if a different date is given in the decree, it should be ignored and parties or court should always go to the judgment to find out what the date of decree should be. If the decree bears a wrong date that date should be the date of decree for purposes of Article 182 of the Act.
In my judgment, the above Bench decision of this court reported in AIR 1923 Pat 129 (supra) gives a clear verdict that in that case the wrong date given in the decree has got to be ignored. It must follow the date of the judgment, which is a valid judgment pronounced as required under Order 20, Rule 1 of the Code.
10. The next decision of this court relevant on the point is in Ram Kumar v. Mohan Lal, AIR 1940 Pat 270 where Fazl Ali and Meredith, JJ. while dealing with Order 20. Rule 7 of the Code observed that the date of the decree is the date of the judgment and that the decree must, therefore, in law be deemed to have come into existence on the date when the judgment was delivered. Therefore, the assignment (sic) of a decree after the judgment has been pronounced though the decree may not have been prepared and signed, is valid.
11. Yet another decision in this point referred to is in Pandey Aklu Singh v. Ram Prit Tewary. AIR 1959 Pat 109 where Ramaswami, C. J. and R.K. Chou-dhary, J. were dealing with the provisions contained in Article 182 of the Act. In that case the facts were that after a preliminary decree for mesne profits was passed, the decree-holders applied for ascertainment of the amount of mesne profits, and on 31-5-1947, the court disposed of that application. The order showed that the court gave a direction for the determination of the mesne profits taking the yield at the rate of 10 maunds of paddy per bigha by kucha weight and that the sale rate was to be the gazette rate. The plaintiffs decree-holders were also directed to file court-fees on the ascertained amount. On 4-7-47 they were ordered to file court-fees on the ascertained sum for preparation of the decree.
Nothing seemed to have been done thereafter and for the first time on 25-4-50 an application was filed on behalf of the decree-holders for calculation of the mesne profits at the gazette rate and ultimately the gazette sale rate having been ascertained, calculation of the amount of mesne profits was made on 8-8-50. On necessary court-fees having been filed by the decree-holders, a decree was drawn up and signed on 7-5-51. Thereafter, the decree-holders made an application for execution of the decree on 24-7-51 in Execution Case No. 28 of 1951, Some of the judgment-debtors raised objection to the execution of the decree under Section 47 of the Code which gave rise to Miscellaneous Case No. 35 of 1951. The objection was, however, dismissed by the court below and those judgment-debtors filed Miscellaneous Appeal No. 66 of 1952 in this court. Further proceeding in the execution case was stayed by this court. Thereafter another execution petition was filed by the decree-holders on 6-5-54, in Execution Case No. 24 of 1954. Two sets of objections were filed under Section 47 of the Code by the judgment-debtors which gave rise to Miscellaneous Case Nos. 27 and 31 of 1954.
Both these cases were heard together and the court below held that the execution was barred by time and allowed the objection. Their Lordships following the decisions in AIR 1916 Pat 235 (supra) and AIR 1920 Pat 111 (1) (supra) held at page 110.
"..... The rights between the parties as regards the ascertainment of mesne profits was finally determined by the order dated 31-5-1947. The calculation of the amount at the gazette rate had to be made by the office and it did not require any further adjudication by court. Therefore, the question regarding the ascertainment of mesne profits was completely disposed of by the court by its order dated 31-5-1947. As the decree bears the date of the judgment, the decree sought to be executed, in the present case, must, therefore, be dated 31-5-1947. The applications for execution made beyond three years of that date were clearly barred by limitation. . . . ."
These are all the relevant decisions on this point by this court.
12. Now I turn to consider some of the citations of cases of different High Courts referred to by Mr. Mishra. He referred to the decision in Nathulal v. Nand Ram, AIR 1960 Madh Pra 108. In that case the applicants had obtained on 18-2-52 an ex parte money decree against the opposite party. Thereafter the opposite party took proceedings for setting aside the ex parte decree, which was ultimately, dismissed on 16-3-55. The decree-holders i.e., the applicants then applied for framing of the decree and a copy of the decree being furnished to them. The decree was framed accordingly on 12-10-55.
On 21-3-57 the petitioners filed an application for execution of the decree. The application for execution was on the face of it time barred. But (sic) were entitled to a deduction of the time taken in the proceedings which the opposite party had taken for setting aside the ex parte decree. The matter ultimately came up in revision in the High Court P. V. Dixit, J. while dealing with Article 182 of the Act and Order 20, Rule 7 of the Code observed that the expression "date of decree" in the Limitation Act means the date the decree is directed to bear under Order 20. Rule 7 of the Code, that is the date on which the judgment is pronounced and not the date when the decree is formally drawn up. Thus, the period of limitation for an application under Article 182 (1) of the Act begins to run from the date the judgment is pronounced. He further observed that a right to enforce a decree is not dependent on the production of the proof of the decree before the executing court by means of a certified copy. It accrues as soon as the decree is made, i.e., immediately after the judgment is pronounced.
It may be noticed that in this case his Lordship no doubt rightly observed that the said proposition of law is not applicable in execution of a decree which contains something in itself making it effective or executable not immediately on its date but on some future date.
In my opinion, this observation of his Lordship is of no avail to learned counsel for the appellant as in the instant case there is nothing in the order dated 11-7-52 to indicate that the order of the court was not to take effect immediately or was dependent upon happening of certain events, on some future date. It may also be noted that his Lordship dissented from the judgment of this court in AIR 1938 Pat 149 (supra) and those in AIR 1933 Cal 239 (supra) and AIR 1957 All 114 (supra) which were relied on by learned counsel for the appellant.
Still another decision in Lalchand Ramchand Jain v. Kanhaiyalal Ram-bharose, AIR 1961 Madh Pra 223 is relevant for consideration on this point. In that case the decree under execution was drawn up on 26th October, 1956 consequent to the orders pronounced by the Judicial Commissioner. Vindhya Pradesh, on 23rd December, 1955, in a miscellaneous civil appeal and a civil revision. When the decree-holder filed an application for execution for recovery of cost awarded by the Judicial Commissioner, the judgment-debtor-appellant raised the objection that the application was time barred according to Article 182 of the Act and it had been filed more than 3 years after the date of the delivery of the order, namely, 23rd December, 1955. The matter ultimately came to the High Court of Madhya Pradesh.
It may be mentioned that in this case the judgment in AIR 1960 Madh Pra 108 (supra) was also referred and those in AIR 1938 Pat 149 (supra) AIR 1933 Cal 239 (supra) and AIR 1957 All 114 (supra) came up for consideration. The case was referred to a Division Bench for opinion by P.K. Tare, J., who observed that where a decree does not bear the correct date of pronouncement of judgment as required by Order 20, Rule 7 of the Code, the decree-holder who applies for execution within 3 years from the wrong date specified in the copy of the decree, but beyond 3 years from the correct date, would be liable to invoke the principle that acts of court should prejudice no man, if on the facts he is able to establish that he was actually misled by the wrong date of the decree as mentioned in the certified copy supplied to him. But where the decree-holder was not applying" for execution till the expiry of the limitation under a wrong impression that he could compute limitation under Article 182(1) of the Act from the date of actual signing of the decree, and subsequently applied for certified copy of the decree, there could be no room for assertion that the period was lost due to wrong action of the court in mentioning an incorrect date of decree in the certified copy supplied to him. In the absence of facts to attract the applicability of the maxim actus curiae neminem gravabit, the execution application would be dismissed as barred by limitation.
It may be noticed that in this case Ma Lordship did not dissent from the judgments in AIR 1938 Pat 149 (supra), AIR 1933 Cal 239 (supra) and AIR 1957 All 114 (supra). His Lordship in his well considered judgment observed that Dixit, J. in AIR 1960 Madh Pra 108 (supra) erred In dissenting with the view of Jack, J. of Calcutta High Court, Agarwala, J. of Patna High Court and Raghubar Dayal and Bhargava, JJ. of Allahabad High Court, on the assumption that the same would be contrary to the pronouncement of their Lordships of the Privy Council hi (1881) ILR 7 Cal 547 (PC) and (1889) ILR 17 Cal 347 (PC). He further observed that on the facts and in the circumstances of the case in AIR 1960 Madh Pra 108 (supra) there was no occasion for Dixit, J. to dissent from the views taken by the learned Judges in AIR 1938 Pat 149 (supra), AIR 1933 Cal 239 (supra) and AIR 1957 All 114 (supra). Tare, J. at page 231 held in AIR 1961 Madh Pra 223 (supra):--
"Therefore, I am unable to accept the suggestion that the learned Judges of the said High Courts laid down anything contrary to the pronouncement of their Lordships of the Privy Council. In fact, the learned Judges were concerned with the period between the correct date of the decree as per Order 20, Rule 7 of the Civil Procedure Code and the incorrect date of decree shown in the certified copy of the decree due to a mistake of the court.
If a party acted on the basis of the said mistake of a court regarding the date of a decree, what the learned Judges laid down was only that on the principle of actus curiae neminem gravabit, a party could exclude that period. It was only under that maxim that the said period between the correct date of decree and the wrong date of decree, as stated by the court was excluded by the learned Judges.
Nor do I find that the learned Judges of the Allahabad High Court consisting of Raghubar Dayal J. and Bhargava J. in AIR 1957 All 114 (supra) purported to lay down that the starting point of limitation would be the incorrect date of decree shown in the certified copy. At least, I am unable to read the judgment of those High Courts in this light The principle indicated by the learned Judges is altogether with respect to a different matter and for a different reason, namely, by following the maxim actus curiae neminem gravabit, the learned Judges excluded that period under a different principle."
He further held in paragraph 43 at page 232:--
"Had the respondent established facts to attract the applicability of the maxim 'actus curiae neminem gravabit' I might have been inclined to follow the view of Jack J., Agarwala J. and the Division Bench consisting of Raghubar Dayal and Bhargava. JJ. But, under the circumstances, there is no other course except to allow the appeal and to dismiss the respondent's execution application on the ground that it is barred by time.'"
Following the above observations, in the instant case also, in my judgment, since the appellant has placed no material on the record that in any way he was misled due to the wrong date, namely, 12-10-63 mentioned in the decree, without dissenting from the view taken in AIR 1938 Pat 149 (supra). AIR 1933 Cal 239 (supra) and AIR 1957 All 114 (supra), I can safely hold that the facts in those cases were different from the one in the instant case. Therefore, the appellant cannot take advantage of the date, 12th of October, 1963, mentioned in the decree. Even if no other date is mentioned in the decree, it will be deemed that it bore the date of the judgment which was dated llth of July, 1952.
Howsoever. I wish to make it clear that I do not subscribe to the view taken by Dixit, J. in AIR 1960 Madh Pra 108 (supra) that it is for the decree-holder to be diligent and get a certified copy of the decree early to be able to apply for execution within 3 years and if there is any delay on the part of the court in drawing up a decree, a party can always remind the court to expedite the preparation of the decree so as to apply for its execution within time. In my view, the said observation of Dixit, J. does not hold good in view of the judgment of the Supreme Court in Jagat Dhish Bhargava v. Jawahar Lal Bhargava, AIR 1961 SC 832 where their Lordships observed that where the dual system does not exist it is not a part of the duty of a litigant to remind the court or its office about its obligation to draw up a decree after the judgment is pronounced in any suit. It may be that decrees when drawn up are shown to the lawyers of the parties, but essentially drawing up of the decree is the function of the court and its office, and it would be unreasonable to penalise a party for the default of the office by suggesting that it was necessary that the party should have moved the court for the drawing up of the decree.
But in my judgment that by itself does not absolve the appellant, as mentioned earlier, from levying the execution within time as prescribed under Article 182 of the Act. I have already held on the basis of the decisions in AIR 1954 Pat 92 (supra) and AIR 1962 Pat 398 (supra) that the appellant could have levied execution even in the absence of the decree. The appellant was fully aware that the award was confirmed by the judgment of the Subordinate Judge dated llth July, 1952. He was also aware of the provisions contained under Order 20, Rule 7 of the Code and the limitation prescribed under Article 182 of the Act. There was no question in the instant case of being misled by any action of the court or its officer.
Reference may also be made to a decision of the Full Bench consisting of Ray C. J., Jagannadhadas and Narasimham, JJ. of the Orissa High Court in Sri Ramachandra Mardaray Deo v. Bhalu Patnaik, AIR 1950 Orissa 125 (FB). Their Lordships were considering the provisions of Article 182 of the Act, and Order 20, Rule 7 of the Code. The material facts in that case were as follows. Execution Petition No. 269 of 1944 arose out of a Small Cause Court suit which was disposed of on 1st August, 1944 and the remaining five execution petitions arose out of Small Cause Suits which were disposed of on 8th August, 1941. In all those suits, the decrees were actually drawn up and signed by the Munsif on 21st August 1941, and the decrees not only bore the dates on which the suits were disposed of (1st or 8th August as the case may be) but also the date on which they were actually signed (21st August 1941). The decree-holder was the same in all the execution petitions which were filed on 21-8-44. By virtue of Article 182 of the Act the execution petitions appeared prima facie to be time barred. But the decree-holder's main contention was that in all the six cases the decrees were formally drawn up and signed by the court only on 21st August, 1941 and that consequently limitation should run from that date and not from the date which the decrees bore. The whole question therefore turned on the construction of the expression 'date of decree' occurring in clause £1) of Article 182 of the Act.
The lower court relied on Order 20, Rule 7 of the Code and held that the expression 'date of decree' meant the date which the decrees bore and that inasmuch as under the aforesaid provision of the Code the decree was required to bear the date of the judgment and not the date on which It was actually drawn up and signed, the former date alone should be taken to be the date of decree for the purpose of Article 182 of the Act also. Narasimham and Jagannadhadas, JJ., Ray, C. J. contra, observed that the phrase 'date of decree' in Article 182 (1) of the Act should be construed with reference to Order 20. Rule 7 of the Code as the date when the judgment Is pronounced and not the date when the decree is actually drawn up and signed. Hence an application for execution filed more than three years from the date of judgment but within three years from the date of signing of the decree, will be barred by limitation.
Where the decree gives the date of judgment as the date of decree there can be no question of the decree-holder being in any way misled by the fact that it also gave the date on which it was actually signed. In paragraph 15 their Lordships further observed:
"Lastly comes the question as to whether the petitioner can reasonably urge that he was misled by the fact in the decrees the court gave the dates on which the decrees were actually signed (21-8-41). This point has been fully discussed by the learned Munsif and he has correctly distinguished this case from AIR 1938 Pat 149 = 174 Ind Cas 397 and AIR 1933 Cal 239 = 141 Ind Cas 114. I entirely agree with his reasonings. There can be no question of the decree-holder being in any way misled because the court gave the date of the judgment in every case as the date of the decree and the mere fact that it gave some more information than was required by Order 20, R. 7, cannot be held to justify the inference that the petitioner was in any way misled."
13. Mr. Lall appearing on behalf of the appellant however, tried to persuade me to follow the minority judgment of Ray, C. J. in AIR 1950 Orissa 125 (FB) (supra) but in view of various decisions referred to above, I am not inclined to agree with the minority view of Ray, C. J.
14. After a careful consideration of all the decisions referred to above, in my judgment the contentions of learned counsel for the appellant cannot be accepted. In the circumstances of the case, I am constrained to answer question No. (i) by holding that the decree would be deemed to have borne llth July, 1952 as its date which was the date of the judgment, and to answer question No. (ii) by holding that the appellant was not in any way misled because the decree was drawn up and signed on 12-10-63. On the above findings, the execution levied by the decree-holder-appellant was obviously time-barred according to the provisions of Article 182 of the Act The impugned order of the learned Subordinate Judge has therefore, got to be maintained.
15. In the result, the appeal is dismissed and the order is upheld. In the circumstances of the case, however, there will be no order as to costs.