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Laxmibai Hareshwar Joshi and ors. Vs. the State of Maharashtra and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtMumbai High Court
Decided On
Case NumberLetters Patent Appeal No. 45 of 1972
Judge
Reported inAIR1977Bom168; 1977MhLJ725
ActsLimitation Act, 1963 - Sections 28 - Schedule - Articles 136; Transfer of Property Act - Sections 52; Code of Civil Procedure (CPC), 1908 - Sections 48; Limitation Act, 1908 - Schedule - Article 182
AppellantLaxmibai Hareshwar Joshi and ors.
RespondentThe State of Maharashtra and ors.
Appellant AdvocateS.A. Desai, ;H.M. Raut, ;L.C. Chogle, Advs. and ;B.R. Ketkar, Advs.
Respondent AdvocateS.C. Pratap, Asstt. Govt. Pleader, ;K.J. Abhyankar and ;D.K. Ghaisas, Advs.
Excerpt:
.....defendants through court - the court ruled that the limitation for the same would start from the date when the decree was amended, and not from the date on which the original decree was passed. - maharashtra scheduled castes, scheduled tribes, de-notified tribes (vimukta jatis), nomadic tribes, other backward classes and special backward category (regulation of issuance and verification of) caste certificate act (23 of 2001), sections 6 & 10: [s.b. mhase, a.p. deshpande & p.b. varale, jj] caste certificate petitioner seeking appointment against the post reserved for member of schedule tribe his caste certificate was invalidated subsequently held, his appointment would not be protected. the observations/directions issued by supreme court in para 36 of judgment in the case of state v..........the date of the decree which, in the case, would be from april 14, 1952, which was the date of the appeal decree in civil appeal no. 342 of 1949 and not from august 31, 1963, which was the date of the order made in misc. application no. 81/1976 for the amendment of the decree.4. the material facts may be briefly stated as follows. the decree in execution was passed on april 20, 1952, in civil suit no. 219 of 1947 in which the plaintiff-decree-holder had sought possession of certain property on the basis that he had purchased the same at court sale which was duly confirmed by the court. he obtained possession of a portion of the suit property but in respect of another portion there was obstruction, and hencea suit was filed to remove that obstruction. on april 20, 1949, a decree was.....
Judgment:

Vaidya, J.

1. The above Letters Patent Appeal is on the basis of the leave granted by S. K. Desai, J., against his judgment dated 22nd November, 1971, in Second Appeal No. 1403 of 1969 and involves a point of limitation under Article 136 of the Limitation Act, 1963.

2. Second Appeal No. 1403 of 1969 was filed against the decision of the District Judge, Thana, dated July 4, 1969, setting aside an order passed by Civil Judge, Junior Devision, Palghar, in Regular Darkhast No. 34 of 1967, dismissing the said darkhast on the ground that though the darkhast was in time under Article 136 of the Limitation Act, 1963, the darkhast was liable to be dismissed because the subject-matter of the decree was not in possession of the judgment-debtor (respondent No. 7), being lis pen-dens, was hit by Section 52 of the Transfer of Property Act and the decree was executable as the darkhast was in time.

3. In that second appeal the decision of the learned District Judge was set aside on the ground that the period of limitation provided under Article 136 of the Limitation Act, 1963, will have to be calculated from the date of the decree which, in the case, would be from April 14, 1952, which was the date of the appeal decree in Civil Appeal No. 342 of 1949 and not from August 31, 1963, which was the date of the order made in Misc. Application No. 81/1976 for the amendment of the decree.

4. The material facts may be briefly stated as follows. The decree in execution was passed on April 20, 1952, in Civil Suit No. 219 of 1947 in which the plaintiff-decree-holder had sought possession of certain property on the basis that he had purchased the same at court sale which was duly confirmed by the Court. He obtained possession of a portion of the suit property but in respect of another portion there was obstruction, and hencea suit was filed to remove that obstruction. On April 20, 1949, a decree was passed by the Civil Judge, Junior Division, in favour of the plaintiff. On April 14, 1952, Civil Appeal No. 342 of 1949, filed against the said decree, was dismissed.

5. In the meanwhile, the decree-holder had filed a darkhast, being darkhast No. 122 of 1951, on April 20, 1951 and it was decided on January 17, 1957. Without the decree-holder getting satisfaction of the decree, he transferred it in favour of respondent No. 7 on March 7, 1956. Thereafter on November 14, 1962, the decree-holder filed Miscellaneous Application No. 81 of 1962 for amendment of the decree, which was decided on August 31, 1963.

6. The result of the amendment has been, with respect, correctly summarised by S. K. Desai, J., in paragraph 4 of the judgment as follows:--

'The decree, after it was amended, provided for a declaration that the Plaintiff was the owner of the land in suit. The Defendants were ordered to remove their hut from the property in suit and deliver vacant possession of the land to the Plaintiff. It was further ordered that if the Defendants failed to remove the hut and deliver vacant possession of the land to the Plaintiff, the Plaintiff to remove the same through Court at the Defendants' costs. This was in substitution of the original provision in the decree that the Defendants shall remove the hut and the plaintiff was entitled to get the hut removed at the cost of the Defendants. The remaining part of the decree providing for costs remained unchanged. It ig clear that the original decree was incomplete and in order to do full justice, the amendment was allowed by the learned District Judge, Thana. Therefore, on 16th June, 1967, the present Darkhast was filed,

7. Relying on the amended decree, therefore, the darkhast was filed on June 16. 1967 and the learned Judge, relying on certain decisions under the repealed Section 48 of the Code of Civil Procedure, took the view that the period of 12 years should be calculated with effect from April 14, 1952 and not with effect from the date of the amendment, viz., August 31, 1963.

8. The view taken by the learned Judge is challenged before us on the ground that Article 136 was substituted in the Limitation Act, 1963, for Section 48of the Code of Civil Procedure which was repealed by Section 28 of the Limitation Act, 1963 and for Article 182 of the Limitation Act, 1908. It is contended that so far as Article 136 is concerned, the words are:--

'When the decree or order becomes enforceable or where the decree or any subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods, when default in making the payment or delivery in respect of which execution is sought takes place.'

We are of the view that the contention must be upheld because the decree in the present case became enforceable, so far as the complete possession of the property in dispute was concerned, only after the amendment of the decree as pointed out by S. K. Desai, J.

9. Previous legislation may be

relevant to the interpretation of later statues in two ways: (1) The course which legislation on a particular point has followed often provides an indication as to how the Act at present in force should be interpreted, and (2) Light may be thrown on the meaning of a phrase in a statute by reference to a specific phrase in an earlier statute dealing with the same subject-matter. Under Section 48 of the Code of Civil Procedure, a view appears to have been taken that the date of the decree for the purpose of limitation under that section was the date of the original decree and not the date of the amendment.

10. So far as Article 182 of the Limitation Act, 1908, was concerned, there was a specific clause which states that where the decree has been amended, the period of limitation should be calculated from the date of the amendment. The Legislature, having regard to the technical pleas which appear to have been raised with regard to the amended decree, has repealed Section 48 and also Article 182 of the Limitation Act, 1908, as it stood before 1963 Act and has used the expression, 'when the decree or order becomes enforceable, etc., etc.'.

11. In the present case the defendants were ordered by amendment to do certain things and on their default to do so, delivery of possession was to be made to the plaintiff and the plaintiff could remove hut's of the defendants through Court. A declaration was also given infavour of the plaintiff that he was the owner of the land in suit. In view of this, with great respect we are unable to agree with S. K. Desai, J. in holding that the date which is material for the purposes of limitation is the date of the original decree and not the date of the amendment. There cannot be any doubt that if the date of the amendment of the decree, viz., August 31, 1963, is taken into consideration, the darkhast is well within time under Article 136 of the Limitation Act, 1963.

12. Mr. Abhyankar, the learned Counsel for the Respondents, tried to urge a new point which does not appear to have been urged before S. K. Desai, J., though it was raised and negatived before the learned District Judge. Apart from the fact that the learned District Judge has rightly negatived the contention having regard to the provisions of Section 52 of the Transfer of Property Act that the darkhast could not be resisted by judgment-debtor No. 7, who became transferee pendente lite we are of the view that it is not open to Mr, Abhyankar to urge any point which was not urged on behalf of the Respondents before S. K. Desai, J.

13. Mr. S. A. Desai, who appeared for the Appellants and who had appeared before S. K. Desai, J., made a statement at the Bar that no such point was urged on behalf of the Respondents before S. K, Desai,, J. It is not open to us to allow the parties to agitate the point which was not considered by the learned Judge who has given leave to file Letters Patent Appeal.

14. In the result, the Letters Patent Appeal is allowed. The order passed by S. K, Dpsai, J., on November 22, 1971, is set aside and the judgment and the order passed by the learned District Judge, Thana, on July 4, 1969, is restored. In all the facts and the circumstances of the case, there shall be no order as to costs of this Court

15. Appeal allowed.


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