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Nathulal and ors. Vs. Nand Ram - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMadhya Pradesh High Court
Decided On
Case NumberCivil Revn. No. 235 of 1958
Judge
Reported inAIR1960MP108
ActsLimitation Act, 1908 - Schedule - Article 182 and 182(1); Code of Civil Procedure (CPC) , 1908 - Order 20, Rule 7
AppellantNathulal and ors.
RespondentNand Ram
Appellant AdvocateR.G. Waghmare, Adv.
Respondent AdvocateG.G. Sohny, Adv.
DispositionPetition dismissed
Cases Referred and Anant Ram v. Basdco Sahai
Excerpt:
- - it is well settled that the expression 'date of the decree' in the limitation act means the date the decree is directed to bear under p. 5. for all these reasons, i am of the opinionthat the petitioners' application for execution havingbeen filed more than three years after the date ofthe delivery of judgment was clearly barred by time......to the exclusion of this time under section 5 limitation act and that on the exclusion of that time the application for execution was within time. the judgment-debtor then preferred an appeal in the court of the district judge of ujjain. the teamed district judge held that the decree holders were under no circumstances entitled to the deduction of any time under section 5 limitation act which did not apply to execution proceedings. he accordingly held the application for execution barred by time. the decree-holders have now preferred this revision petition.2. mr. waghmare learned counsel for the petitioners, did not dispute that section 5 limitation act had no applicability to the execution proceedings and that under article 182(1) an application for execution of a decree has to be.....
Judgment:
ORDER

P.V. Dixit, J.

1. The facts of this revision petition are that the applicants obtained on 18-2-1952 from the Court of the Civil Judge, Ujjain, an ex parte moneydecree for Rs. 371-8-6 against Nandram. Thereafter! the opponent took proceedings for setting aside the ex parte decree which were ultimately dismissed pa 16-3-1955. The decree-holders then applied for framing of the decree and a copy of the decree being furnished to them. The decree was framed accordingly on 12-10-1955. On 21-3-1957 the petitioners filed an application for execution of that decree, That application for execution was on the face of it barred by time. But the decree holders urged in the executing Court that they were entitled to a deduction of the time taken in the proceedings which the defendant opponent had taken for setting aside the ex parte decree.

This argument found favour with the civil judge second class, Ujjain who held that the decree holders were entitled to the exclusion of this time under Section 5 Limitation Act and that on the exclusion of that time the application for execution was within time. The judgment-debtor then preferred an appeal in the court of the district judge of Ujjain. The teamed District Judge held that the decree holders were under no circumstances entitled to the deduction of any time under Section 5 Limitation Act which did not apply to execution proceedings. He accordingly held the application for execution barred by time. The decree-holders have now preferred this revision petition.

2. Mr. Waghmare learned counsel for the petitioners, did not dispute that Section 5 Limitation Act had no applicability to the execution proceedings and that under Article 182(1) an application for execution of a decree has to be made within three years of the date of the decree, which means the date when the judgment was pronounced and not the date when the decree is formally drawn up. He however attempted to argue that Article 182(1) was applicable to that decree or order which was capable of execution at the date thereof; that as no decree was drawn up on 18-2-1952 it could not be said that an executable decree was in existence on that day; and that it was only on 12-1.0-1955 when the decree was framed that the decree-holders acquired a right to enforce the decree and consequently the decree holders could apply for execution of the decree at any time within three years of the date when the decree had been drawn up.

3. There is no force in the contention advanced by the learned counsel for the applicants. It is well settled that the expression 'date of the decree' in the Limitation Act means the date the decree is directed to bear under p. 20 Rule 7 C. P. C. 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) Limitation Act begins to run when the judgment is pronounced.

That provision no doubt assumes that the decree or order is capable of execution at the date thereof. It has no applicability in the execution of a decree which contains something in itself making it effective or executable not immediately on it date but on some future date. As observed by the Privy Council in Rameshwar Singh v. Homeshwar Singh, AIR 1921 PC 31, when Article 182 (1), Limitation Act 'prescribes three years from the date of a decree or order within which it must be enforced, the language, read with the context, refers only to an order or decree made in such a form as to render it capable in the circumstances of being enforced.'

The principle laid down by the Privy Council does not mean that a decree is not enforceable unless it is drawn up. All that it means is that there must be something in the decree itself or any circumstances connected with it which makes it executable only on the happening of a particular contin-gency. It is erroneous to say that a decree becomes executable only when it is drawn up. In connection with the effectiveness of a certificate to act as a guardian of a minor, the Privy Council observed in Munghiram v. Gursahai Nand, ILR 17 Cal 347;

'When a man obtains an order for a certificate he does in substance comply with the terms of this Act, in the same way as when a person has the judgment of the court that he shall have a decree in his suit it may be said that he then obtains his decree. The decree, when it is drawn up afterwards, relates back to that time; and so would the certificate in this case relate back; and the terms of the Act that he shall have obtained such certificate are complied with.'

Again in the Owners of the Ship 'Brenhilda v. British India Stram. Navigation Co., ILR 7 Cal 547, the Privy Council made the observation-

'Their, Lordships, therefore, think that the date of the decree did not mean the date on which the decree was reduced to writing and signed by the court, but the date on which the High Court delivered their judgment and expressed what the decree was.'

These pronouncements of the Privy Council make it very clear that the decree itself is expressed and comes into existence on the delivery or pronouncement of the judgment. Thus unless there is something inherent in the decree itself or in the circumstances connected with it, the decree is made and becomes enforceable as soon as the judgment is pronounced. True, the decree-holder is not in a position to apply for execution of a decree and state the terms thereof, unless the decree is drawn up and he furnishes in proof a certified copy of the same.

But the fact that he cannot apply for execution until a decree is drawn up does not mean that he does not acquire a right to execute the decree as soon as the judgment is pronounced and the decree is made. A distinction must be made between a right to execute the decree and the procedure for putting the decree into execution. A right to enforce a decree is not dependant on the production of proof of the decree before the executing court by means of a certified copy. It accrues as soon as the decree is made, that is immediately after the judgment is pronounced.

4. It seems to mo unnecessary to refer to a long catena of cases in which it has been held that limitation for an application for execution under Article 182(1) commences from the date of pronouncing judgment and not from the date on which the decree is prepared and signed. Most of them have been noted under Article 182 (1) in Chitale's and Rustomji's books on 'Limitation' and other books on 'Limitation.' It is sufficient to refer to ILR 7 Cal 547 (PC); ILR 17 Cal 347 (PC); Golam Gaffar Mandal v. Goljan Eibi. ILR 25 Cal 109; Umda v. Rupchand. AIR 1927 Nag I; Sri Ramachandra v. Bhalu, AIR 1950 Orissa 125; Raijnath Prasad v. Nursinghdas. AIR 1958 Cal 1, Sri Ram v. Jagan Nath, (S) AIR 1957 Punj 65 and Akin Singh v. Ramprit, AIR 1959 Pat 109.

I am aware of some cases in which it has been held that if a decree is not drawn up through, the court's mistake or where the copy of the decree supplied to the decree-Holder bears, through the mistake of the court, the date on which it was drawn up instead of the date on which the judgment was pronounced, or bears some date other than the one on which the judgment was pronounced, then on the principle of 'actus curiac neroinem gravabit' an application for execution filed within three years of the date shown in tha decree should be regarded as within time.

Some of these, cases are Nalini Kanta Roy v. Kamaraddi, AIR 1988 Cal 239; Kali Prasad v. Mt.Bibi Aziz Fatma, AIR 1938 Pat 149 and Anant Ram v. Basdco Sahai, AIR 1957 All 114. With respect I am unable to agree with this view. When a party obtains an executable decree as soon as the judgment is pronounced then he must know that under Article :182(1) limitation for execution of the decree would run from the date of the judgment. It is for him to be diligent and get a certified copy of the decree early to be able to apply for execution within three years. If there is any delay on the part of the court in drawing up the decree, a party can always remind the court to expedite the preparation of the decree so as to apply for its execution within time.

If ho is not diligent, there is no room for the application of the maxim stated above. Again, when the statutory provisions of Article 182(1), Limitation Act and Order 20 Rule 7 C. P. C., say that an application for execution shall be made within three years from the date of the decree, that is the date on which the judgment is pronounced then the aforesaid maxim cannot be invoked to override the statutory provisions. The question whether the delay in signing a decree can be considered as a time requisite under Section 12, Limitation Act and the question as to the date of the delivery of the judgment when the party had no notice of that date do not arise for consideration in the present case.

5. For all these reasons, I am of the opinionthat the petitioners' application for execution havingbeen filed more than three years after the date ofthe delivery of judgment was clearly barred by time.This petition is, therefore, dismissed with costs.


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