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Ram Sarup and anr. Vs. Sher Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtPunjab and Haryana High Court
Decided On
Case NumberEx. Second Appeal No. 1306 of 1971
Judge
Reported inAIR1979P& H65
ActsIndian Limitation Act, 1963 - Sections 28 - Schedule - Articles 136, 181, 182 and 183; Code of Civil Procedure (CPC), 1908 - Sections 14(2), 48, 48(1) and 48(2)
AppellantRam Sarup and anr.
RespondentSher Singh and ors.
Cases Referred and Ramgopal v. Sidram
Excerpt:
.....observations made by their lordships in lalji raia and sons v. 48 of the code also prescribed a period of limitation, it would well follow that the same would he controlled by the provisions of the limitation act, 1908. 7. on principle also the aforesaid view commends itself for acceptance. if a party has a right to get the decree amended and has been successfully able to do so then he cannot be denied the fruits of his success by the mere fact that more than twelve years have passed from the date of the original decree and the same on that ground should become unexecutable. 48 of the code as well as arts. 181 and 182 of the limitation act, 1908. these pro-visions clearly go to indicate that the period prescribed under s. as a necessary consequence it has to be held that the..........by their lordships and it has been consequently held that s. 48 in effect also merely prescribed a period of limitation and not an insuperable or a final bar. the subsequent history of the legislation is again a pointer to the same effect. this is manifest in the fact that s. 48, as already noticed, has now been repealed by the provisions of s. 28 of the indian limitation act, 1963. partially its place has now been taken by art. 136 of the schedule to the limitation act, 1963. this change, therefore, must be construed as declaratory of the law and once it is held that s. 48 of the code also prescribed a period of limitation, it would well follow that the same would he controlled by the provisions of the limitation act, 1908.7. on principle also the aforesaid view commends itself for.....
Judgment:

S.S. Sandhawalia, C.J.

1. Whether S. 48 of the Code of Civil Procedure, 1908 (now repealed with effect from the 1st of Jan. 1964, by S. 28 of the Indian Limitation Act, 1963) was controlled by Art. 182 of the First Sch. of the Indian Limitation Act, 1908, is the significant question which falls for determination by this Full Bench.

2. This reference to the larger Bench has been necessitated by a forceful challenge to the correctness of the judgment reported as Amar Nath v. Mul Raj, AIR 1975 Punj & Har 246 (FB), wherein it has been held that S. 48 aforesaid laid down a bar which was final and which could not be extended by the amendment of the decree, whether that amendment was made before or after the expiry of the said period of twelve years, and that the date of the decree within the meaning of S. 48 of the Code is always the date of the original decree and not the date of the amended decree.

3. The case in hand is a glaring ex-ample of the occasional tardiness of judicial procedure. In the suit originally filed by the decree-holder for Partition of the joint property, the preliminary decree was passed by the trial Court more than four decades earlier on the 27th of March, 1938. For the purposes of this reference, it is unnecessary to follow in detail the chequered history of the case thereafter. It suffices to mention that in the tortuous course of proceedings that ensued, the decree aforesaid was allowed to be amended on the material date of the 16th of July, 1966. The crucial question that now arises is whether the terminus for the execution of the decree is the date of its amendment (16th of July, 1966) as provided for in clause (4) in col. 3 of Art. 182 of the First Schedule of the Limitation Act 1908 or the date of the original decree, namely, the 27th of March, 1938.

4. As the controversy must inevitably revolve around the provisions of the now repealed S. 48 and Art. 182 of the First Schedule, Indian Limitation Act 1908, these may first be set down for facility of reference:--

''48. (1) Where an application to exe-cute a decree not being a decree granting an injunction has been made no order for the execution of the same decree shall be made upon any fresh application presented after the expiration of twelve years from--

(a) the date of the decree sought to be executed, or,

(b) 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, the date of the default in making the payment or delivery in respect of which the applicant seeks to execute the decree.

(2) Nothing in this section shall be deemed--

(a) to preclude the Court from order-lug the execution of a decree upon an application presented after the expiration of the said term of twelve years, where the judgment-debtor has, by fraud or force, prevented the execution of the decree at some time within twelve years immediately before the date of the application; or

(b) to limit or otherwise affect the operation of Art. 183 of the First Schedule to the Indian Limitation Act, 1908.'' and Art. 182

''Article 182--

For the execution of a decree or order of any Civil Court not provided for by Article 183 or by Section 48 of the Code of Civil Procedure, 1908. Three years, or where a certified copy of the decree or order has been registered, six years. 1. The date of the decree or order, or 2. (Where there has been an appeal) the date of the final decree or order of the Appellate Court, or the withdrawal of the appeal, or

3. (Where there has been a review ofjudgment) the date of the decision passed on the review, or

4. (Where the decree has been amended) the date of amendment, or

5.***

6.***

7.***'

5. On the vexed question whether S. 48 of the Code of Civil Procedure, 1908, laid down an absolute bar of twelve years for the execution of a decree or whether it was controlled or overridden by the provisions of the Limitation Act, there has been a wide ranging conflict of judicial opinion in the various High Courts for nearly half a century. I do not, however, propose to further contribute to the volume of this judicial literature because it appears to me that the matter has now been finally set at rest by the binding precedent of the final Court. It suffices to mention that the learned Judges in Amar Nath's case (AIR 1975 Punj & Har 246) (FB) (supra) rested their view on a string of precedents including Fakir Chand v. Kundan Singh, AIR 1932 All 351, Ganesh Das v. Vishan Das, AIR 1935 Lah 292, Mt. Dulhin v. Harihar Gir, AIR l939 Pat 607; Ramachandra Rao v. Parasuramayya, AIR 1940 Mad 127 (FB); Shyam Sunder Prasad v. Ramdas Singh, AIR 1946 Pat 392; Ganeshmal Pasmal v. Nandlal Tulsiram, AIR 1954 Bom 104 and Krishna Pillai Narayana Pillai v. Neelakanta Pillai Velayudhan Pillai, AIR 1957 Trav-Co 293. However, it now appears manifest that the aforesaid view and the authorities mentioned above can no longer be held as good law in view of the categoric observations made by their Lordships in Lalji Raia and Sons v. Firm Hansraj Nathurarn, AIR 1971 SC 974.

6. Since I take the view that the matter is concluded by a binding precedent it is wasteful to launch on an examination of the issue on principle. It suffices to mention that the argument that S. 48 of the Code of Civil Procedure was a self-contained Code in which the period pre-scribed laid down was an absolute bar has been negatived in no uncertain terms by their Lordships and it has been consequently held that S. 48 in effect also merely prescribed a period of limitation and not an insuperable or a final bar. The subsequent history of the legislation is again a pointer to the same effect. This is manifest in the fact that S. 48, as already noticed, has now been repealed by the provisions of S. 28 of the Indian Limitation Act, 1963. Partially its place has now been taken by Art. 136 of the Schedule to the Limitation Act, 1963. This change, therefore, must be construed as declaratory of the law and once it is held that S. 48 of the Code also prescribed a period of limitation, it would well follow that the same would he controlled by the provisions of the Limitation Act, 1908.

7. On principle also the aforesaid view commends itself for acceptance. If a party has a right to get the decree amended and has been successfully able to do so then he cannot be denied the fruits of his success by the mere fact that more than twelve years have passed from the date of the original decree and the same on that ground should become unexecutable. The present case is an apt example of such a situation. The decree-holder secured his original decree on the 27th of March, 1938, and in a long drawn out legal battle, amendment of the decree was secured nearly 28 years thereafter on the 16th of July, 1956. To deny him the execution of the decree merely because the tardy Court processes had been stretched beyond a period of twelve years would in my opinion be uncalled for unless the statute in mandatory terms were to lay down otherwise.

8. As I said earlier, apart from principle, it appears to me that despite the earlier conflict the controversy now fortunately seems to have been set at rest by the following categoric observations of their Lordships in Lalji Raja's case (AIR 1971 SC 974) (supra) (at pp. 980, 981):--

''25. The argument advanced on behalf of the judgment-debtors is that S. 48 is a self-contained Code and the period prescribed therein is a bar and not a period of limitation and hence the decree-holders cannot take the benefit of S. 14(2). In support of this argument reliance is placed on sub-see. (2)(a) of S. 48 of 'the Code'. That sub-section undoubtedly lends some support to the contention of the judgment-debtors. It indicates as to when the Period prescribed under S. 48(1) can be extended. By implication it can be urged that the period pre-scribed under S. 48(1) of the Code can only be extended under the circumstances mentioned in that clause and not other-wise. But in assessing the correctness of that contention we have to take into consideration clause (b) of sub-see, (2) of S. 48 of the Code as well as Arts. 181 and 182 of the Limitation Act, 1908. These pro-visions clearly go to indicate that the Period prescribed under S. 48(1) of the Code is a period of limitation. This conclusion of ours is strengthened by the subsequent history of the legislation. By the Limitation Act 1963, S. 48 of the Code is deleted. Its place has now been taken by Art. 136 of the Limitation Act of 1963.

26. At one stage, there was considerable conflict of judicial opinion as to whether S. 48 is controlled by the provisions of the Limitation Act 1908. But the High Courts which had earlier taken the view that S. 48 prescribes a bar and not limitation have now revised their opinion. The opinion amongst the High Courts is now unanimous that S. 48 of the Code is controlled by the provisions of the Limitation Act, 1908--see Kandaswami Pillai v. Kannappa Chetty, AIR 1952 Mad 186 (FB); Durg v. Pancham, ILR (1939) All 647: (AIR 1939 All 403 (FB), Sitaram v. Chunnilalsa, AIR 1944 Nag 155; Amarendra v. Manindra, AIR 1955 Cal 269; Krishna Chandra v. Siva Paravatamma, AIR 1953 Orissa 13 and Ramgopal v. Sidram, AIR 1943 Bom 164.

27. We are of the opinion that the ratio of the above decisions correctly lay down the law. That apart, it would not be appropriate to unsettle the settled position in law.''

In the light of the aforesaid enunciation, I would return an answer in the affirmative to the question formulated at the very outset. As a necessary consequence it has to be held that the observations in Amar Nath's case (AIR 1975 Punj & Har 246) (FB) (supra) on this Point are no longer good law and are hereby overruled.

9. The case shall now go back to the learned Single Judge for determination in accordance with the answer to the referred question.

S.C. Mital, J.

10. I agree.

D.S. Tewatia, J.

11. I agree.

K.S. Tiwana, J.

12. I agree.

S.P. Goyal, J.

13. I agree.

14. Answer in affirmative.


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