Skip to content


Lalchand Ramchand JaIn Vs. Kanhaiyalal Rambharose - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. (First) Appeal No. 156 of 1959
Judge
Reported inAIR1961MP223
ActsLimitation Act, 1908 - Sections 12(2) and 15(1) - Schedule - Article 182(1); Code of Civil Procedure (CPC) , 1908 - Order 20, Rule 7
AppellantLalchand Ramchand Jain
RespondentKanhaiyalal Rambharose
Appellant AdvocateG.P. Singh, Adv.
Respondent AdvocateM.P. Shrivastava, Adv.
DispositionAppeal allowed
Cases ReferredAnantram v. Basdeo Sahai
Excerpt:
- - 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. order 20, rule 7 of the code provides that the court shall sign the decree when the judge has satisfied himself that the decree has been drawn up in accordance with the judgment. it shall contain the number of the suit, the names and descriptions of the parties, and particulars of the claim, and shall specify clearly the relief granted or other determination of the suit. in 1959 mplj 1065: (air 1960 madh pra 108) (supra) appears to be the correct view, with which i am in respectful agreement, though i would have liked to adopt the reasoning of ray, c. in the opinion of the.....ordertare, j. 6. this appeal is by the judgment-debtor against the order, dated 7-11-1959, passed by shri s.n. chaturvedi, additional district judge, panna, in execution case no. 2 of 1959, arising out of the execution proceedings, relating to miscellaneous civil appeal no. 85 of 1955, and civil revision no. 59 of 1955, decided by the court of additional judicial commissioner of the former state of vindhya pradesh on 23-12-1955.7. this appeal, involves a question of limitation only. the question arises under the following circumstances :the judicial commissioner vindhya pradesh, by order, dated 23-12-1955, in miscellaneous civil appeal no. 85 o 1955 and civil revision no. 59 of 1955, allowed the same with costs and set aside the decree and order of the court below. although the judgment.....
Judgment:
ORDER

Tare, J.

6. This appeal is by the judgment-debtor against the order, dated 7-11-1959, passed by Shri S.N. Chaturvedi, Additional District Judge, Panna, in Execution Case No. 2 of 1959, arising out of the execution proceedings, relating to Miscellaneous Civil Appeal No. 85 of 1955, and Civil Revision No. 59 of 1955, decided by the Court of Additional Judicial Commissioner of the former State of Vindhya Pradesh on 23-12-1955.

7. This appeal, involves a question of limitation only. The question arises under the following circumstances :

The Judicial Commissioner Vindhya Pradesh, by order, dated 23-12-1955, in Miscellaneous Civil Appeal No. 85 o 1955 and Civil Revision No. 59 of 1955, allowed the same with costs and set aside the decree and order of the court below. Although the judgment and the order were delivered on 23-12-1955, no decree was drawn up till 26-10-1956. On that date, a decree was drawn up and signed in the appeal. As no decree was required to be drawn up in the revision, merely the costs were taxed in the Civil Revision and the order taxing the costs was signed on 20-10-1956. However, the certified copies of these two documents show the date of the decree and the order as 9-10-1956.

8. The judgment and the order, dated 23-12-1955, passed in the appeal a'd the revision were ex parte. The plaintiff-respondent in that appeal applied for setting aside the ex parte decree and the ex parte order. Those proceedings were ultimately dismissed on 9-10-1956. It was only after that the decree was signed on 26-10-1956 and the costs were taxed in the revision on 20-10-1956.

9. It is necessary to state certain other facts in order to get an idea under what circumstances the decree and the order in Miscellaneous Civil Appeal No. 85 of 1955 and Civil Revision NO- 59 of 1955 came to be drawn up after about ten months. After the judgment and the order were pronounced on 23-12-1955, the plaintiff (present appellant) applied for setting aside the ex partedecree and order. Those applications were registered as Miscellaneous Civil Applications Nos. 48 and 49 of 1956. By the order, dated 13-7-1956, the trial Court was directed to hold an inquiry into the allegations made in the affidavit about the illness of the plaintiff.

After the receipt of the findings, the learned Additional Judicial Commissioner finally dismissed the applications by an order, dated 9-10-1956 (termed as judgment). The defendant (present respondent) applied on 23-7-1959 to the Court of Additional District Judge for drawing up a decree in the suit in pursuance of the order of the Additional Judicial Commissioner dated 23-12-1955. The Additional District Judge, by order dated 28-7-1959, held that it was not necessary to draw up a decree, as the suit had already been dismissed earlier and there was no direction that the plaintiff should bear the defendant's costs.

10. The defendant applied for certified copies of the decree and order of the Additional Judicial Commissioner's Court on 25-2-1959. The same were delivered to him, on 4-3-59. The certified copies mentioned the date of the decree and the order, as 9-10-1956, although they were drawn up and signed on 26-10-1956 and 20-10-1956, respectively. Thereafter, the defendant filed an execution application on 2-9-1959, seeking execution of the decree and order of the Judicial Commissioner's Court passed in the appeal and the revision. In the execution application, the date of the decree was mentioned as 26-10-1956 and the date of the order was stated to be 20-10-1956.

11. The defendant-decree-holder, namely, the present respondent claimed limitation under Article 182(1) of the Indian Limitation Act from the date of signing of the decree or the order.

12. On behalf of the plaintiff-judgment-debtor, an objection was taken that the execution application was barred by time under Article 182 of the Limitation Act, as the date of signing of the decree or the order was not material. It was contended that the starting point of limitation would be the date of delivery of the judgment or the order, namely, 23-12-1955.

13. The learned Judge of the trial Court held that as the decree and the order were signed on 26-10-56 and 20-10-1956 respectively, the execution application was within time. The learned Judge, however, decided the point upon first impressions and did not refer to the case law.

14. The learned counsel for the appellant urged that the conclusion of the trial Judge was contrary to the view expressed by Dixit, J, (as he then was) in 1959 MPLJ 1065: (AIR 1960 Madh Pra 108), wherein it was held that the date of the decree or the order for the purpose of Article 182 of the Indian Limitation Act would be the date of delivery of the judgment, as provided by Order 20, Rule 7 of the Civil Procedure Code.

As to the phrase 'date of the decree or order' occurring in Article 182 (1) of the Indian Limitation Act, Section 48 of the Civil Procedure, Code, as also the phrase 'time requisite for obtaining a certified copy of the decree' under Section 12(2) of the Limitation Act, there has been a conflict of views between different High Courts.

But, one tiling is certain that their Lordships of the Privy Council in Owners of the Ship Brenhilda v. British India Steam Navigation Co., ILR 7 Cal 547 (PC) have kid down that the starting point of limitation for execution of a decree would be the date of delivery of judgment and in Liakut Hossein v. Gursahainand, ILR 17 Cal 347 (PC) although their Lordships did not decide any question of limitation, yet laid down that the same principle would apply to an order, which though signed later, would relate back to the date of pronouncement.

In such cases, the question arises whether a party can exclude the period between the delivery of the judgment and the actual signing of the decree by the Court. This, question has been considered in several cases pertaining to Article 182 and Section 12(2) of the Limitation Act and Section 48 of the Civil Procedure Code. In view of the conflict of views, I propose to discuss this question exhaustively.

15. A full Bench of this Court in ILR (1955) Nag 791 held that for the purpose of Section 12(2) of the Limitation Act, a party would be entitled to exclude the period from the date of pronouncement of the judgment to the date of the actual signing of the decree by the Court. The learned Judges constituting the Full Bench dissented from the earlier view taken by a Full Bench of the Judicial Commissioner's Court in AIR 1927 Nag 1. Instead, the learned Judges of the Nagpur High Court constituting the Full Bench relied on the Full Bench Case of the Bombay High Court in Jayashankar Mulshankar v. Mayabhai Lalbhai, ILR (1952) Bom 514: (AIR 1952 Bom 122),

16. As the learned Judges of the Full Bench in Bhagwant's case, ILR (1955) Nag 791 adopted a particular line of reasoning, it was suggested at the time of arguments that the view taken by Dixit, J. (as he then was) in 1959 MP. LJ 1065: (AIR 1960 Madh Pra 108) (supra) was contrary to the reasoning of the Full Bench. Therefore, I had referred this case to a larger Bench by my order of reference, dated 15-7-1960.

The Division Bench (to which I was a party) answered the reference by its order, dated 23-8-1960, holding that the view of Dixit, J, was not contrary to the reasoning of the Full Bench in Bhagwant's Case, ILR (1955) Nag 791 (supra). My Lord, the Chief Justice, answering the reference of the Division Bench also stated that Section 12(2) of the Limitation Act would be inapplicable to an execution application, which is governed by Article 182(1) of the Limitation Act.

17. Therefore, I am bound by the answers given by the Division Bench that Section 12(2) of the Limitation Act cannot be invoked, so far as the question of limitation for an execution application under Article 182(1) of the Limitation Act and the starting point of limitation under the said Article are concerned. The view of the Full Bench in Bhagwant's Case, ILR (1955) Nag 791 (supra) would be applicable to cases, where Section 12(2) of the Limitation Act can be invoked, As such, there as no conflict between the view of Dixit, J. (as he then was) and the said Full Bench Case.

18. Order 20, Rule 7 of the Civil Procedure Code is as follows:

'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.'

As already indicated, their Lordships of the Privy Council have laid down that the starting point of Limitation would be the date, when the judgment or the order is pronounced. That was also the view taken by the learned Judges of: the Full Bench in Bhagwant's Case, ILR (1955) Nag 791 (supra) as also by Dixit, J. in 1959 MP LJ 1065 ; (AIR 1960 Madh Pra 108) (supra).

Therefore, there can be no doubt that the starting point of limitation would be the date, when the judgment is pronounced. In cases where Section 12(2) of the Limitation Act is applicable, there is no difficulty, as the matter would be governed by the Full Bench decision in Bhagwant's case, ILR (1955) Nag 791 (supra). But the difficulty arises in cases which are not covered by Section 12(2) of the Limitation Act, particularly cases governed by Article 182(1) of the Limitation Act, and Section 48 of the Civil Procedure Code.

19. After the judgment is pronounced by the Court, is it any part of the duty of a party to tell the Court that the decree be drawn up? The party is concerned with obtaining a copy of the decree for the purpose of filing an appeal, or for the purpose of executing the same, if so required by the Court, Section 33 of the Civil Procedure Code provides that a decree shall follow the judgment. Order 20, Rule 7 of the Code provides that the Court shall sign the decree when the Judge has satisfied himself that the decree has been drawn up in accordance with the judgment. Rule 6 of Order 20 prescribes as to what the contents of the decree shall be. It is as follows:

'(1) The decree shall agree with the judgment; it shall contain the number of the suit, the names and descriptions of the parties, and particulars of the claim, and shall specify clearly the relief granted or other determination of the suit.

(2) The decree shall also state the amount of costs incurred in the suit, and by whom or out of what property and in what proportions such costs are to be paid.

(3) The Court may direct that the costs payable to one party by the other shall be set off against any sum which is admitted or found to be due from the former to the latter.'

From the said provisions, it is clear that all the things in the matter of drawing up of the decree are to be performed by the Court. A party has no choice in the same, nor does the Civil Procedure Code contemplate any application for the drawing up or signing of the decree or the order. It is the duty of the Court to draw up and sign the decree or the order, after the judgment is pronounced and Rule 7 of Order 20 provides for a legal fiction that the decree will bear the date of the judgment, although it may be signed at a later time. But, no such provision is made regarding an executable order.

20. One of the salient principles of jurisprudence is that no act of the Court shall prejudiceeither of the parties. If that principle is to be borne in mind and given effect to, can it be said that although it is no part of the duty of a litigant to see that a decree is drawn up, he should be deprived of benefit of the period, which is lost on account of the laches of the Court in failing to draw up a decree.

As a matter of fact, a litigant has no say in the matter, nor any control over the actions of the Court in the matter of drawing up and signing of the decree. It was this consideration, which persuaded the learned Judges constituting the Full Bench in Bhagwant's Case, ILR (1955) Nag 791 (supra) to exclude the period between the pronouncement of a judgment and the actual signing of a decree for the purpose of Sec, 12(2) of the Limitation Act.

21. As regards Article 182(1) of Schedule I of the Limitation Act, no other Section of the Act can be invoked to exclude the period between the pronouncement of the judgment and the actual signing of the decree. As was rightly observed by Dixit, J. (as he then was), the matter is concluded by the ruling of their Lordships of the Privy Council in ILR 7 Cal 547 (PC) (supra) so far as a decree is concerned.

The utmost that can be stated in favour of the contrary view was said by Ray, C, J. in the Full Bench case of Sri Ramchandra Mardary Deo v. Bhalu Patnaik, ILR 1950 Cut 253: (AIR 1950 Orissa 125).

Nothing more can be said than what the learned Chief Justice ably discussed in his minority dissenting judgment. But, as ultimately remarked by Jagannadha Das, J. (as he then was) it is not possible to agree with the conclusion of Ray, C. J. in the face of the pronouncement of their Lordships of the Privy Council. Therefore, the view pronounced by Dixit, J. in 1959 MPLJ 1065: (AIR 1960 Madh Pra 108) (supra) appears to be the correct view, with which I am in respectful agreement, though I would have liked to adopt the reasoning of Ray, C. J. The dictum laid down by their Lordships of the Privy Council would be binding on this Court unless it is modified by their Lordships of the Supreme Court.

22. Similarly, there can be no escape from the conclusion that for the purpose of computing limitation for execution of an order, the same principle would apply as was laid down by their Lordships of the Privy Council in ILR 17 Cal 347 (PC) (supra). As the question of limitation was not specifically for consideration before their Lordships, Ray, C.J., in ILR 1950 Cut 253: (AIR 1950 Orissa 125) (supra) remarked that the case could not be treated to be an authority for the proposition propounded by the majority view of the Full Bench. However, in view of the unambiguous pronouncement of their Lordships, I am unable to accept the suggestion that the principle of Order 20, Rule 7 of the Civil Procedure Code cannot be applied to an order.

23. Although, in my opinion, taking this view would cause an unprecedented and unwarranted anomaly in a number of cases, where the default occurs not on account of any action of the party concerned; but on account of the action of the Court in failing to draw up and sign the decree, over which a litigant has no control, it is an accepted proposition that considerations of equity cannot weigh, where provisions of the Indian Limitation Act are to be construed, as laid down by their Lordships of the Privy Council in Nagendra Nath Dey v. Suresh Chandra, 59 Ind App 283: (AIR 1932 PC 165) and General Accident Fire and Life Assurance Corporation, Ltd. v. Janmahomed Abdul Rahim, 67 Ind App 416 : (AIR 1941 PC 6).

In the former case, his Lordship Sir Dinshah Mulla, delivering the judgment of the Board, observed that the provisions of the Limitation Act ought to be interpreted in a strict grammatical sense of the words used in the statute and equitable considerations would be wholly out of place. The question for their Lordships' consideration was whether the word 'appeal' in Article 182(2) 6f Schedule I of the Limitation Act would include an irregular or incompetent appeal.

Their Lordships laid down that it would include not only an irregular or incompetent appeal but would also include any application by a party to an appellate Court asking it to set aside or revise a decision of a subordinate Court. Thus, their Lordships ruled that the word 'appeal' should be interpreted in its ordinary grammatical meaning without restricting its operation to an appeal legally tenable under the provisions of the Civil Procedure Code or any other law. According to the dictum of their Lordships, even an irregular or incompetent appeal would suspend the period of limitation and the starting point would be from the date of appellate judgment in the irregular or incompetent appeal,

24. In the latter case, their Lordships observed that the provisions of the Limitation Act should receive a construction as the plain meaning imports and that the rule should be enforced even at the risk of hardship to a particular party. Equitable considerations would be out of place, while construing the provisions of the Act. In this case, the widow of the deceased had been granted letters of administration regarding the estate of the deceased for the benefit of the minor sons during the minority of any of them. The widow had furnished an administration bond under Section 291 of the Succession Act.

The bond was assigned to one of her major sons under Section 292 of the Succession Act, as the widow died. Their Lordships laid down that the limitation would be three years from the date of death of the widow and not in terms of the original order granting letters of administration. It is, therefore, clear that while construing the provisions of the Limitation Act, the same ought to be interpreted in their natural strict grammatical sense without either restricting the operation, so as to have a penal effect or putting an undue liberal construction out of equitable considerations.

25. In Alla Wali v. Kesarimal, ILR (1947) Nag 176: (AIR 1947 Nag 239) the Division Bench consisting of Hidayatullah, J. (as he then was) and Padhye, J., while answering the reference made by Pollock J., observed that provisions of the Limitation Act, which may be arbitrary and sometimes harsh and inequitable ought to be construed as they are found in the Act and Courts have no power to add to, alter and amend them.

In the opinion of the learned Judges, giving the words their strict grammatical meaning would alone be the safe guide and equitable considerations would be out of place. The question for consideration was whether an application for restitution was an application for execution, so as to be governed by Article 182 of Schedule I of the Limitation Act.

The Division Bench held that it could not be construed to be so, and as there was no specific provision in the Limitation Act for such an application, it would be governed by the residuary provision, namely, Article 181 of Schedule I of the Limitation Act. The principle deducible from the said cases would be that the provisions of the Limitation Act ought to be given their natural strict grammatical meaning without either restricting the scope in a penal manner or enhancing the scope out of equitable considerations.

26. Keeping in view the above principles, it would, in all humility, stress that the provisions of the Limitation Act ought to be interpreted in their natural strict grammatical sense. Their scope cannot be enhanced out of any equitable considerations, nor can their scope be restricted so as to have an unduly penal effect. Therefore, the learned counsel for the respondent suggested that the provisions of the Act cannot be construed in a penal manner so as to visit the penalty upon a party for the fault of the Court.

That would be the only result and in order to avoid such a result, the learned counsel for the appellant suggested that Section 15(1) of the Limitation Act ought to be invoked for the purpose of excluding the period from the date of judgment to the date of actual signing of the decree. Therefore, it needs examination whether Section 15(1) of the Act can at all be brought to the aid of the respondent.

27. As laid down by a Full Bench of this Court in Baliram v. Manohar, ILR (1943) Nag 241 : (AIR 1943 Nag 204), no appeal can be filed unless a formal decree is drawn up and signed. If the trial Court refuses to draw up a decree in a case where one is needed, the wrongful refusal can be set right in exercise of revisional powers. As no appeal is tenable against a judgment or a finding or an interlocutory order, Hidayatullah, J. (as he then was) answering the reference in the Full Bench case of ILR (1955) Nag 791 (supra) laid down that the period between the delivery of judgment and the actual signing of the decree shall not be computed against a party, if that party be not at fault and if the delay he exclusively assignable to the act of the Court. Can it be reasonably said that although a decree may not be actually signed, a party should still file an application for execution, which may not be in accordance with the provisions of Order 21, Rule 11 of the Civil Procedure Code?

28. Section 15(1) of the Limitation Act is as follows:

'(1) In computing the period of limitation prescribed for any suit or application for the execution of a decree, the institution or execution of which has been stayed by injunction Or order, the time of the continuance of the injunction or order, the day on which it was issued or made, and the day on which it was withdrawn, shall be excluded.

(2) In computing the period of limitation prescribed for any suit of which notice has been, given in accordance with the requirements of any enactment for the time being in force, the period of such notice shall be excluded.'

It is true that Sub-section (1) of the said section mentions stay on account of an injunction or order of the Court. Where there is a specific order of the Court, there would be no difficulty in applying Section 15(1) of the Limitation Act. But, can it be said if the failure of the Court to draw up a decree would amount to an implied order of the Court staying the execution of the decree. In this connection, it is to be seen as to what the decree-holder is actually required to do under Order 21, Rule 11 of the Civil Procedure Code. The said provision prescribes the particulars of an execution application. It is as follows:

'(1) Where a decree is for the payment of money the Court may, on the oral application of the decree-holder at the time of the passing of the decree, order immediate execution thereof by the arrest of the judgment-debtor, prior to the preparation of a warrant if he is within the precincts of the Court.

(2) Save as otherwise provided by Sub-rule (1), every application for the execution of a decree shall be in writing, signed and verified by the applicant or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the 'case, and shall contain in a tabular form the following particulars, namely:

(a) The number of the suit;

(b) The names of the parties;

(c) The date of the decree;

(d) Whether any appeal has been preferred from the decree;

(e) Whether any, and (if any) what, payment OT other adjustment of the matter in controversy has been made between the parties subsequently to the decree;

(f) Whether any, and (if any) what, previous applications have been made for the execution of the decree, the dates of such applications and their results;

(g) The amount with interest (if any) due upon the decree, or other relief granted thereby, together with particulars of any cross-decree whether passed before or after the date of the decree sought to be executed;

(h) The amount of the costs (if any) awarded;

(i) The name of the person against whom execution of the decree is sought; and

(j) The mode in which the assistance of the Court is required, whether:

(i) by the delivery of any property specifically decreed;

(ii) by the attachment and sale, or by the sale without attachment, of any property;

(iii) by the arrest and detention in prison of any person;

(iv) by the appointment of a receiver;

(v) otherwise, as the nature of the relief granted may require,

(3) The Court to which an application is made under Sub-rule (2) may require the applicant to produce a certified copy of the decree.'

29. A Division Bench o the Patna High Court in Ram Gulam Singh v. Raj Kumar Rai, ILR 6 Pat 635: (AIR 1928 Pat 86), while computing limitation under Article 182 of the Limitation Act, excluded the period during which the decree had been set aside in a separate suit, although it was later restored as being valid. In Govind Naik v. Basawannewa Parutappa, ILR (1941) Bom 435 : (AIR 1941 Rom 203), a Division Bench consisting of Beaumont, C. J. and Sen, J. excluded the period during which, the case had to be stayed under Order 32, Rule 10 of the Civil Procedure Code due to the death of the next friend of the minor decree-holder.

The learned Judges held that Sec. 6 of the Limitation Act was inapplicable, but Section 15 of the Aet could be invoked for the purpose of computing limitation under Article 181 of the Limitation Act. The ratio decidendi of the said cases would be that it would be sufficient for the applicability of Section 15(1) of the Limitation Act, if as a result of some action, proceedings get stayed without a specific order in that behalf.

But, I am unable to comprehend as to how the said section could reasonably be relied on to exclude the period from the date of delivery of judgment to the date of actual signing of the decree. It was suggested that on account of the failure of the Court, a party is prevented from filing an application for execution, as is envisaged by Order 21, Rule 11 of the Civil Procedure Code. The further question would, however, arise whether as suggested by the learned Counsel for the appellant an incomplete application would be un application filed in accordance with law.

30. Before a decree is drawn up, a party cannot supply all the particulars prescribed under Order 21 Rule 11 of the Civil Procedure Code. At least some of the particulars relating to costs would be lacking. Besides the fact that such an application might be considered to be premature, what can foe the propriety of filing it except for complying with a technicality for the purpose of saving limitation upon an artificial legal fiction relating to the phrase 'date of decree' occurring in Article 182(1) of the Limitation Act due to the operation of Order 20 Rule 7 of the Civil Procedure Code. The learned Judges constituting the Full Bench in ILR (1955) Nag 791 (supra) pointed out the impropriety of filing an application for a certified copy of the decree, before the 'decree is drawn up and signed.

31. As to whether such an application would be an execution application in accordance with law will depend on whether minor or material particulars are lacking in the incomplete application. That is the test laid down by a Division Bench of this Court in Kanmal v. Govind Prasad, ILR (1946) Nag 563: (AIR 1946 Nag 365).

32. Their Lordships of the Privy Council have laid down in Govind Prasad v. Pawankumar, 70 Ind App 83: (AIR 1943 PC 98) that only an application for execution which is according to law can save limitation for the purpose of a further application.

33. If a decree is not drawn up, a litigant cannot file an application, as is contemplated by order 21 Rule 11 of the Civil Procedure Code. It was suggested by the learned counsel for the appellant thata party could still file an application for execution, although the particulars to be supplied by him may be incomplete due to the fact that the Court has not drawn up a decree.

The reasoning of the learned Judges of the Full Bench in Bhagwant's case ILR (1955) Nag 791 (supra) was that a party cannot be expected to file an infructuous application for a certified copy of the decree, when the decree itself has not been drawn up. Therefore, the Full Bench held that the period would be the time requisite for obtaining a certified copy of the decree, if the same was not lost on account of any fault of the party concerned. To say that a party can file an incomplete execution application even though the decree is not drawn up, might amount to interpreting the provisions of the Limitation Act in a penal manner, so as to cause an anomaly.

In very few cases or in exceptional cases is a decree drawn up on the same day, as the judgment. In an overwhelming majority of cases, the decree is usually drawn up on a date subsequent to the delivery of the judgment. There may be cases, where the delay is inordinate. In the present case, the delay was almost ten months. In the case of 1959 MPLJ 1065: (AIR 1960 Madh-Pra 108) (supra) before Dixit J., the delay exceeded three years and a half. That was a peculiar case where the decree was not drawn up and the limitation had already expired before the decree had actually been signed.

34. It is not for this Court to question the dicta laid down by their Lordships of the Privy Council. It would be for their Lordships of the Supreme Court to consider the implications of the law laid down by their Lordships of the Privy Council. The High Court is bound even by the obiter observations of the Privy Council, unless the Supreme Court has modified or dissented from that view.

As laid down by their Lordships of the Privy Council in ILR 7 Cal 547 (PC) (supra); and ILR 17 Cal 347 (PC) (supra), the starting point of limitation for a decree under Article 182(1) of the Limitation Act would be the date of delivery of judgment, as provided by Order 20 Rule 7 of the Civil Procedure Code. There can be no question of going back over that proposition. Therefore, with reference to the present case, I am clearly of the opinion that the starting point would be 23-12-1955 for execution of the decree, as also the order. This is the inevitable result and there can be no escape from that.

35. It was suggested by the learned counsel for the respondent that such an anomalous result has to be avoided by resorting to the accepted and well-known rules of interpretation. As stated by Lord Cranworth, Chancellor in Gundry v. Pinniger, (1852) 21 LJCH 405 to avoid absurdity is a cardinal rule, from which, if we depart, we launch into a sea of difficulties not easy to fathom. It was observed by Finnemore J. in Holmes v. Bradfield R. D. C., 1949-2 KB 1 at p, 7:

'The mere fact that the results of a statute may be unjust or absurd does not entitle this Court to refuse to give it effect, but if there are two different interpretations of the words in an Act, the Court will adopt that which is just, reasonable and sensible rather than that which is none of these things'.

There can be no two opinions on the correctness of the propositions enunciated by the learned Judges. But, in my opinion, they are not attracted in the present case on any rational hypothesis.

36. It would be an indisputable proposition to state that the purpose and scope of a legal fiction created by a statute cannot be enlarged beyond the purpose for which it is created and as is specifically warranted by the clear and unambiguous words used in the statute. Therefore, in no case, can Order 20 Rule 7 of the Civil Procedure Code be applied to an order. But, this Court is bound by the dictum of their Lordships of the Privy Council in ILR 17 Cat 347 (PC) (supra). Therefore, if at all, it would be for the Legislature to bring the law in conformity and harmony by suitably amending the relevant provisions or for their Lordships of the Supreme Court to lay down and restate the law on this point.

37. I may frankly confess that I am constrained to adopt this course with a considerable amount of hesitation. But, at the same time I feel that this is the only course left open under the circumstances. It was after anxious deliberation that I came to the conclusion that the starting point of limitation under Article 182(1) of Schedule I of the Limitation Act could be the date of delivery of judgment or order by following the dicta laid down by their Lordships of the Privy Council.

38. Therefore, so far as an application for execution is concerned, the period between the date of delivery of the judgment or the order and the actual signing of the decree or the order cannot be excluded under any positive provision of the Indian Limitation Act. Cases, where Sections 14, 15(1), 16 and 18 are applicable, would stand on a different footing. But, according to the view of the Full Bench in ILR (1955) Nag 791 (supra), the said period can be excluded under Section 12(2) of the Limitation Act. It may appear to be an anomalous result that the same period could be excluded for the purpose of, an appeal, but not for the purpose of an execution application. But, under the circumstances discussed, it cannot be helped.

39. But, this is not all, which would suffice to decide the present case. There is another aspect, which would deserve close consideration. The certified copies of the decree and the order supplied to the respondent mentioned the date of decree or order as 9-10-1956. Therefore, the learned counsel for the respondent urged that the principle of actus curias neminem gravabit (An act of the Court shall prejudice no man) could be invoked in favour of the respondent, as was done in some cases. Jack J. in Nalini Kanta Roy v. Kamaraddi, AIR 1933 Cat 239, while computing the period of 12 years under S. 48 of the Civil Procedure Code, excluded the period between the correct date of the decree and the incorrect date shown in the decree due to a mistake of the Court. The learned Judge, adopting the maxim actus curiae neminem gravabit, held the execution application to be within time by excluding the period, which was wasted due to the wrong action of the Court.

Following the view of Jack J. in the said case, Agarwala J. in Kali Prasad v. Mst. Bibi Aziz Fatma, AIR 1938 Pat 149 excluded the period that was lost on account of a wrong action of the Court under similar circumstances. A Division Bench of theAllahabad High Court consisting of Raghubar Dayal J. (as he then was) and Bhargava J. in Anantram v. Basdeo Sahai, AIR 1957 All 114 approved of the view of Jack J. and Agarwala J. in the said cases. But, however, Dixit J. (as he then was) in 1959 MPLJ 1065: (AIR 1960 Madh Pra 108) (supra) dissented from the view of Jack J. of the Calcutta High Court, Agarwala J. of the Patna High Court and Raghubar Dayal and Bhargava JJ. of the Allahabad High Court.

40. Apparently, Dixit J. (as he then was) dissented from the said view of the learned Judges on the assumption that the same would be contrary to the pronouncement of their Lordships of the Privy Council in ILR 7 Cal 547 (PC) (supra) and ILR 17 Cat 347 (PC) (supra). Upon a close scrutiny of the reasoning of the learned Judges of the Calcutta, Patna and Allahabad High Courts, I do not find anything contrary to what their Lordships of the Privy Council have laid down in the two cases.

In fact, the learned Judges of the said High Courts were not at all concerned with the period from the pronouncement of the judgment till the actual signing of the decree. Nor, do I think that the learned Judges purported to decide anything contrary to what their Lordships of the Privy Council have laid down. I am unable to read in the said judgments any proposition that the starting point of limitation would be different.

Therefore, I am unable to accept the suggestion that the learned Judges of the said High Courts laid down any thing 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 Raghubir 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.

Therefore, I do not find it possible to agree with the view of my learned brother Dixit J. (as he then was) in 1959 MPLJ 1065: (AIR 1960 Madh Pra 108) (supra), as to why the view of the learned Judges of the said High Courts is to be dissented from. In fact, there was no occasion for a dissent in the case of 1959 MPLJ 1065 : (AIR 1960 Madh, Pra 108) (supra). But, the exact question involved in those cases before the Calcutta, Patna and Allahabad High Courts is involved in the present appeal. Therefore, if I treat the observations of Dixit J. (as he then was) as obiter and not relevant for the decision of the case in 1959 MPLJ 1065: (AIR 1960 Madh Pra 108) (supra), I think, in all humility, I would not be wrong.

41. To conclude, I am of opinion that the respondent in the present case, could invoke the principle of actus curciae neminem gravabit, if on facts he is able to establish that he was actually misled by the wrong date of decree, as mentioned in the certified copies supplied to him. We have, therefore, to examine the facts with reference to this aspect.

42. The respondent took the first step by applying for certified copies of the decree and the order on 25-2-1959. They were delivered to him on 4-3-1959. Thereafter, he applied to the Court of the Additional District Judge on 23-7-1959 for drawing up a decree. That application was rejected by order, dated 28-7-1959, on the ground that it was not necessary to draw up a decree, as the suit had already been dismissed earlier and there was no direction that the plaintiff should bear the defendant's costs.

43. After the proceedings of setting aside theex parte decree and order terminated on 9-10-1956,the Court of Additional Judicial Commissioner drewup the decree and the order on 26-10-1956 and 20-10-1956 respectively and the dates of the decree andthe order were mentioned as 9-10-1956. The respondent never applied to the Court of the AdditionalJudicial Commissioner for drawing up the decreeand the order.

The application for certified copies having been filed on 25-2-1959, and the same having been delivered to the respondent on 4-3-1959, the question about being misled by a wrong action of the Court in mentioning a wrong date of the decree or the order could not arise before 4-3-1959, when the certified copies were delivered. Before that, the limitation had already expired on 23-12-1958 under Article 182(1) of Schedule I of the Limitation Act.

Had the respondent obtained certified copies earlier and then waited, there could have been some basis for the assertion that he was misled by the action of the Court. All this period was lost on account of two factors. The first was that the respondent thought that the decree and the order, dated 23-12-1955, had been put in jeopardy by the plaintiff by applying for setting aside the ex parte decree and order. Therefore, he waited for the final decision of the said proceedings.

Secondly, as is clear from the execution application, the respondent thought that he could compute limitation under Article 182 (1) of the Limitation Act from the date of actual signing of the decree or order. He allowed the period of limitation to be lost under these two impressions. Therefore, there can be no room for an assertion that the period was lost due to a wrong action of the Court in mentioning an incorrect date of decree or order in the certified copies supplied to the respondent.

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 Raghubir 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.

44. As a result, this appeal succeeds and is allowed. The order of the trial Court is set aside andthe respondent's execution application is dismissedas barred by time. Under the circumstances, I directthat the parties shall bear their own costs in thisCourt as also in the trial Court as incurred.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //