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Dinamani Das and ors. Vs. Bimbadhar Padhan and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberMisc. Appeal No. 91 of 1974
Judge
Reported inAIR1979Ori178; 48(1979)CLT200
ActsCode of Civil Procedure (CPC) , 1908 - Sections 48
AppellantDinamani Das and ors.
RespondentBimbadhar Padhan and ors.
Appellant AdvocateB.H. Mohanty, ;S.K. Mohanty and ;P.K. Sahu, Advs.
Respondent AdvocateR.C. Patnaik, ;S. Kr. Dey and ;P.K. Misra, Advs.
DispositionAppeal dismissed
Cases ReferredB) (Sri Ramachandra Mardaray Deo v. Bhalu Patnaik
Excerpt:
.....filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the..........decree in the suit (t. s. no. 81/48) was passed in favour of the plaintiffs on 17-3-49. the final decree, directing the defendants to deliver possession of the mortgaged property to the plaintiffs, was passed on 18-11-53. after the final decree was drawn up, the judgment-debtors filed an application under section 11 of the orissa moneylenders act which was allowed, and the court directed amendment of the final decree. in spite of the said order, the final decree drawn up previously was not amended. on 22-2-56 the plaintiffs-decree-holders filed execution case no. 59/56 to execute the final decree. the judgment-debtors filed a petition in the said execution case under section 47 c.p.c. that petition having been dismissed the judgment-debtors filed misc. appeal no. 47/56, and the.....
Judgment:

Acharya, J.

1. The appellants in this appeal are some of the judgment-debtors and the substituted legal heirs of the deceased judgment-debtors in Title Suit No. 81/48 which was a suit for foreclosure of a mortgage bond. The original judgment-debtors by a petition under Sections 47, 48 and 151 C.P.C. challenged the maintainability of the Execution Case No. 47/70 on the ground that the same was barred under Section 48 C. P. C. and Article 36 of the Limitation Act. That petition was registered as Misc. Case No. 90/70, and by order dated 24-8-73 the learned Subordinate Judge, Kendrapara dismissed the said petition with costs. The judgment-debtors thereupon preferred an appeal against the said decision, and the Additional District Judge, Cuttack, by his order dated 4-5-74 in Misc. Appeal No. 69/73 also dismissed the said appeal with costs. This appeal has been preferred against the said order.

2. The preliminary decree in the suit (T. S. No. 81/48) was passed in favour of the plaintiffs on 17-3-49. The final decree, directing the defendants to deliver possession of the mortgaged property to the plaintiffs, was passed on 18-11-53. After the final decree was drawn up, the judgment-debtors filed an application under Section 11 of the Orissa Moneylenders Act which was allowed, and the court directed amendment of the final decree. In spite of the said order, the final decree drawn up previously was not amended. On 22-2-56 the plaintiffs-decree-holders filed Execution Case No. 59/56 to execute the final decree. The judgment-debtors filed a petition in the said execution case under Section 47 C.P.C. That petition having been dismissed the judgment-debtors filed Misc. Appeal No. 47/56, and the appellate court directed amendment of the preliminary decree as also the final decree, and dismissed the aforesaid execution case on that ground. The preliminary and the final decrees were accordingly amended on 4-12-56 and 19-12-56 respectively. Thereafter the decree-holders again levied execution of the amended final decree on 5-8-57. But on the application of the judgment debtors under SECTION 47 and 151 C.P.C. the executing court held that the preliminary decree and the final decree were not in the proper form. The decree-holders' appeal against the said order was dismissed. On the above finding that the preliminary and the final decrees were not in the prescribed form, the said decrees were amended on 13-9-65. The judgment-debtors again preferred objection against the amended decrees and that matter and matters connected therewith remained pending in different courts for a long time, and ultimately a fresh final amended decree was drawn up and signed on 23-6-70. Soon thereafter the present execution case was levied on 26-6-70, but as Title Appeal No. 58/70, filed by the judgment-debtors against one of the previous orders of the executing court, was pending, this execution case was stayed at the instance of the judgment-debtors. After the dismissal of Title Appeal No. 58/70, the judgment-debtors filed a petition under Sections 47, 48 and 151 C.P.C. in the executing court. On the dismissal of that petition by that court and the appellate court this appeal has been preferred.

3. According to the judgment-debtors, the appellants in this appeal, the execution case filed by the decree-holders in 1970 is barred by limitation in view of the provisions of Section 48 C.P.C. as the same was not filed within 12 years of the date of the final decree, which according to the judgment-debtors is 18-11-53. (This case relates to the period when Section 48 C.P.C. was in force). The above objection has been overruled by both the courts below.

4. It is contended by Mr. B. H. Mohanty, the learned counsel for the appellants, that as under the provisions of the Civil Procedure Code the decree has to bear the date on which the judgment was pronounced, the decree in this case shall be construed to have been passed on 18-11-53, which is the date on which the judgment in the case was pronounced, and accordingly, the execution case filed in the year 1970 is barred by limitation provided under Section 48 C.P.C. According to Mr. Mohanty the words 'date of decree sought to be executed' in Section 48 C.P.C. should be construed with reference to Order 27, Rule 7 C.P.C., and so the date of the decree shall be the date on which the judgment was pronounced, and not the date on which the decree was actually drawn up and signed, and hence an application for execution filed after 12 years from the date of the judgment has to be dismissed under Section 48 C.P.C.

5. In this case, undisputedly the first execution case filed by the decree-holders in 1956 and the second execution case filed by them in 1957 were both in time and both these execution cases were dismissed not due to any fault, negligence or delay on the part of the decree-holders but because of certain defects in the decrees prepared by the court or its officers. The decree-holders certainly had no hand in the preparation of the said defective decrees, and the said defects were due to fault and/or negligence of the court or its officers. The court on the application of the judgment-debtors twice dismissed the execution cases on the ground of defective decrees and on those occasions it amended the decrees. After the dismissal of the second execution case on the ground of the defective decree the decree-holders, till 23-6-70, did not have a clear picture of the decree to be executed in this case, as the judgment-debtors persisted in raising different objections against the decree in the different forums. Due to the dismissal of the execution petitions, not for any fault of the decree-holders, but due to the persistent objections of the judgment-debtors, the decree-holders must have suffered substantially in various ways, and so they had no other way but to wait till the preparation of the proper final decree by the court on 23-6-70 after the various objections of the judgment-debtors in connection with the decree were resolved in the different forums. So it cannot be said that the decree-holders did not levy proper execution of the decree within the prescribed period. The drawing up of the decree is essentially the function of the court and its office and it would be unreasonable to penalise the party for the fault of the court or its officers. The law of limitation visits a person who by his fault, conduct or neglect has rendered stale his rights or reliefs granted to him by law. The plea of laches cannot be foisted against a person who all through remains vigilant and is not guilty of waiver of his right by acquiescence, conduct or neglect.

6. Moreover, if the contention of Mr. Mohanty, that on the delivery or pronouncement of the judgment the decree itself is expressed and for the execution of the decree it is not obligatory on the part of the decree-holder to file the copy of the formal decree drawn up by the court and so the period of limitation for the execution of the decree has to be computed from the date of the pronouncement of the judgment, is accepted as correct, then the court could not have dismissed the execution proceeding on the ground that the decrees prepared in the case were defective. After the dismissal of the first execution case, the decree-holders again levied execution of the amended decree in time. When that again was dismissed on the same ground of defect in the decree, the decree-holders preferred an appeal. But that also was dismissed, in the facts of this case the court without dismissing the execution case should have kept the same alive directing and allowing the decree-holders to amend the execution petition on the line of the amended decree.

7. Mr. Mohanty cited majority decision reported in AIR 1950 Orissa 125 (FB) (Sri Ramachandra Mardaray Deo v. Bhalu Patnaik), and contended that as the date of the decree is the date of the judgment, the execution case instituted in 1970 cannot be allowed to proceed as provided in Section 48 C.P.C. That decision is not on the point in question; the facts on which the said decision was rendered and the question raised and decided in that case are entirely different. In that case their Lordships were construing the expression 'the date of decree' occurring in Article 182 of the old Limitation Act. The first petition for execution in that case was not filed within the period prescribed under Article 182 of the Limitation Act but was filed within 3 years of the drawing up of the formal decree by the court. In this case admittedly the decree-holders filed two successive execution petitions within time, and the said execution cases were dismissed for no fault of the decree-holders as stated above, and the judgment-debtors successively opposed the execution of the decree on the ground of the defective decree, and the court, finding that the decrees prepared were not in order, dismissed the execution cases and amended the decrees from time to time, and the matter relating to the preparation of a proper decree remained pending in different courts till 23-6-70, soon whereafter the present execution case was filed by the decree-holders. As the decision in Ramachandra Mardaray Deo's case is distinguishable on the above-mentioned grounds we do not consider it safe to apply that decision to decide the precise point arising for consideration on the peculiar facts of this case. The salutary observation of the Supreme Court in Jagat Dhish Bhargava's case (AIR 1961 SC 832), that the litigant deserves to be protected against the default committed or negligence shown by the court or its officers in the discharge of their duty, is directly applicable to this case. In the facts and circumstances of this case the decree-holders deserve to be protected against the default committed or negligence of the court or its officers in the preparation of the formal decree, and so the present execution case instituted in 1970 cannot be stalled under the provisions of Section 48 C.P.C. To thwart such an execution proceeding will amount to travesty of justice and would burlesque the provisions of Section 48 C.P.C.

8. On the above considerations, we do not find any merit in this appeal and it is accordingly dismissed with costs.

J.K. Mohanty, J.

I agree.


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