Skip to content


Praja Singh and ors. Vs. Gurdip Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 2257 of 1981
Judge
Reported inAIR1982P& H353
ActsCode of Civil Procedure (CPC), 1908 - Sections 151 - Order 47, Rule 1; Limitation Act, 1963 - Schedule - Articles 136, 181 and 182
AppellantPraja Singh and ors.
RespondentGurdip Singh and ors.
Cases ReferredS. Kharak Singh v. Harbhajan Singh
Excerpt:
.....commence from the date when the parties concerned acquire knowledge of passing of the said order. - 4, 1980, the judgment-debtors-petitioners (hereinafter petitioners) filed objection alleging that the decree-holders-respondents (hereinafter respondents) had effected a compromise with them to treat the decree as satisfied on payment of rs. the executing court framed the following issue :whether the decree stands satisfied by way of compromise as alleged? it has been clearly held in this authority that the decree-holder was entitled to deposit the amount within the period of limitation and execute the decree......which provides for a limitation of 12 years from the date the decree becomes enforceable. the decree dated sept. 8, 1966, could be enforced on payment of rs. 9,803. this amount was deposited on august 13, 1981. the decree dated sept. 8, 1966, therefore, became enforceable on august 13, 1981. the limitation of 12 years under art. 136 of the limitation act would start with effect from august 13, 1981. reliance has been placed on abdul rashid v. sri sitaramji maharaj brajman, air 1974 all 275 (fb).8. it is conceded (and rightly) by the learned counsel for the parties that the limitation in this case will be 12 years in article 136 of the limitation act, 1963. the limitation for the purposes of this article shall commence when the decree dated sept. 8, 1966, becomes enforceable. the.....
Judgment:
ORDER

1. Isher Singh owned land measuring 189 Kanals 4 Marlas in Samana Pati Ghurame, District Patiala. After his death, the land was inherited by his widow and children, including Gurdip Singh, Balwinder Singh, Pritam Kaur and Jasbir Kaur respondents. On June 27, 1964, the respondent were minors. On that date their mother Vir Kaur sold the land owned by her and her minor children without permission of the Court for a sum of Rs. 17,200 in favour of Praja Singh and others (petitioners). The respondents through their uncle and next friend Gurbachan Singh filed a suit for possession of their share, that is, 4/7th of the land against Praja Singh etc. which was dismissed. by the trial Court on August 25, 1965. The respondents then filed an appeal which was accepted by the Additional District Judge. Patiala, vide order dated September 8, 1966. The appellate Court passed the following operative order :--

'So I allow the appeal, set aside the judgment and decree of the Court below and pass a decree in favour of the plaintiff for the possession of the 4/7th share of the disputed land with a direction that before taking possession the plaintiff shall pay to the vendee defendants a sum Rs. 9,803, that is, 4/7th share of the total consideration which is made a condition precedent.'

2. On August 23, 1978, the respondents, who had in the meantime attained majority filed an execution application to execute the decree passed in their favour by Additional District Judge, Patiala, on September 8, 1966. They prayed for being put in possession of the land on payment of Rs. 9,803 to the judgment-debtors-petitioners. The respondents, however, did not deposit the amount in Court nor did they pay the same to the judgment-debtors when they filed the execution application. The proceedings in the execution application started. On Nov. 4, 1980, the judgment-debtors-petitioners (hereinafter petitioners) filed objection alleging that the decree-holders-respondents (hereinafter respondents) had effected a compromise with them to treat the decree as satisfied on payment of Rs. 50,000. The respondents denied they had compromised the matter or had received the amount. The executing Court framed the following issue :--

Whether the decree stands satisfied by way of compromise as alleged?

3. The petitioners did not lead any evidence with the result that the executing Court vide order dated July 30, 1981, dismissed the objection petition and directed the respondents to deposit Rupees 9,803 on or before August 18, 1981. The respondents deposited the amount in Court on August 13, 1981.

4. On August 29, 1981, the petitioners submitted an application under Order 47, Rule 1, Civil Procedure Code, read with S. 151, Civil Procedure Code, praying that the objections regarding limitation raised by them in their objection petition which had been disposed of vide order dated July 30, 1981, be decided. The executing Court thereupon framed the following additional issues :--

Whether the execution application is time barred?

5. The executing Court vide order dated September 4, 1981, held that the execution application was filed within time inasmuch as it was filed on August 23, 1978, that is, within 12 years of the passing of the decree on September 8, 1966. It was further held that the late deposit of the decretal amount on August 13, 1981, is of no consequence as it would relate back to the date when the execution application was filed. The petitioner have assailed the orders dated July 30, 1981, in the present revision. The petitioners have also assailed the order dated June 11, 1981, closing their evidence in support of their plea that the respondents had effected a compromise with them on payment of Rs. 50,000.

6. The learned counsel for the petitioners has addressed no arguments about the orders dated June 11, 1981 and July 30, 1981. The learned counsel for the petitioners has contended that the order dated September 4, 1981, is liable to be set aside inasmuch as the execution application was time barred because the respondents did not deposit Rs. 9,803 within a period of 12 years from the date of the passing of the decree on September 8, 1966, and deposit of the amount on August 13, 1981, having been made after the expiry of 12 years from the date of the passing of the decree would not render the execution application within time.

7. The learned counsel for the respondents has argued that this case will be governed by Art. 136 of the Limitation Act, 1963, which provides for a limitation of 12 years from the date the decree becomes enforceable. The decree dated Sept. 8, 1966, could be enforced on payment of Rs. 9,803. This amount was deposited on August 13, 1981. The decree dated Sept. 8, 1966, therefore, became enforceable on August 13, 1981. The limitation of 12 years under Art. 136 of the Limitation Act would start with effect from August 13, 1981. Reliance has been placed on Abdul Rashid v. Sri Sitaramji Maharaj Brajman, AIR 1974 All 275 (FB).

8. It is conceded (and rightly) by the learned counsel for the parties that the limitation in this case will be 12 years in Article 136 of the Limitation Act, 1963. The limitation for the purposes of this Article shall commence when the decree dated Sept. 8, 1966, becomes enforceable. The point for consideration is as to when did the decree dated Sept. 8, 1966, become enforceable. According to the learned counsel for the respondents this decree became enforceable on Aug. 13, 1981, when the amount was deposited in Court whereas the contention of the learned counsel for the petitioners is that the decree was enforceable right from the date it was passed inasmuch as it was within the control of the respondents to deposit the amount and to seek possession of the land forthwith.

9. In Gopal Sattu v. Dnyanu Maruti, AIR 1938 Bom 367, it was held that where there is a decree for possession on the payment of a sum on a future date, the provisions of Article 182 cannot have any application. Article 181 is the Article applicable to such a case. Plaintiff's right to enforce the decree arises when the sum is payable. The execution of most decrees necessitates the possession of a certain amount of money, and it is impossible to say that a decree is not executable because the plaintiff has not got the money necessary to enable him to execute it. In Dada v. Ganpatrao, AIR 1931 Nag 54, it was held that when a decree for possession is passed on condition of payment of a certain sum by the decree-holder, the starting point for limitation for execution of the decree is the date of the decree and not the date of payment by the decree-holder. The decree-holder cannot obtain extension of limitation by deferring payment. In Ouseph Abraham v. Varki Varki, AIR 1952 Trav-Co 78, it was held that where under the decree the plaintiffs get the right to redeem the properties only on payment of the mortgage amount and the value of improvements, the period of limitation for recovery of possession of the properties does not run from the date of deposit of those amounts. In Yeshwant Deorao v. Walchand Ramchand, AIR 1951 SC 16, it was held that where a decree provides that the decree-holder should pay the deficit court-fee on the decretal amount before its execution the decree is not a conditional one in the sense that some extraneous event is to happen on the fulfilment of which alone it can be executed. The payment of court-fees on the amount found due is entirely in the power of the decree-holder and there is nothing to prevent him from paying it then and there. Thus it is a decree capable of execution from the very date it is passed. In Amar Nath v. Mul Raj, 77 Pun LR 540 : (AIR 1975 Punj 246) (FB) it was held that a decree can only be said to be not enforceable when it is incapable of execution on the date when it is passed, on account of the very terms of the decrees. There must be something inherent in the decree which does not make it enforceable immediately it is passed and postpones its execution to some contingency which is to happen in future and which is beyond the control of the decree-holder.

10. In view of the rule laid down in the authorities mentioned above it is clear that the decree passed in favour of the respondents on Sept. 8, 1966, shall be taken to be enforceable right from the day it was passed unless it was beyond their, control to execute it. In the latter case, the decree would become enforceable when it would be within the control of the respondents to execute it. The respondents could execute the decree dated September 8, 1996, on payment of Rs. 9,803. The payment of the amount was within the control of the respondent and it was, therefore, within the control of the respondents to execute the decree dated September 8, 1966, forthwith. Under these circumstances, the decree dated September 8, 1966, enforceable at the instance of the respondents shall be taken to be with effect from the date it was passed.

11. In Abdul Rashid' case (AIR 1974 All 275) (FB) (supra) the facts of the case were not identical to the case now under consideration. The learned Judges however, expressed the view that a decree for possession on payment of certain sum was incapable of execution unless the payment was made and the decree-holder was, therefore, entitled to execute the decree within three years of the date when he made the payment under Art. 182 of the Limitation Act. 1908. The view expressed in this authority runs counter to the Full Bench authority of this Court (Amar Nath's case) (AIR 1975 Punj 246) and is also at variance with the observations made by the Supreme Court in Yeshwant Deorao's case (AIR 1951 SC 16) (supra).

12. In view of discussion above, I hold that the decree dated Sept. 8, 1966, was enforceable by the respondents right from the date it was passed inasmuch as it was within their control to deposit Rs. 9,803 and seek possession of the land. The limitation of 12 years under Article 136 to execute this decree would, therefore, commence with effect from September 8, 1966, and not from Aug. 13, 1981, when the respondents deposited the amount in Court.

13. The learned counsel for the respondents has contended that the execution application was filed on Aug. 23, 1978, that is, within a period of 12 years with effect from Sept. 8, 1966. The respondents had sought the possession of the land in execution of the decree on payment of Rs. 9,803 to the petitioners. The executing Court directed the respondents to deposit the amount on or before Aug. 18, 1981, vide order dated July 30, 1981. The amount was deposited on Aug, 13, 1981. The deposit would relate back to the date when the execution application was filed. The late deposit of Rs. 9,803 on August 13, 1981, is, therefore, not fatal for the respondents. Reliance has been placed on S. Kharak Singh v. Harbhajan Singh, 1978 Cur LJ (Civ) 470. I am not impressed by this contention. The decree dated Sept. 8, 1966, passed in favour of the respondents was conditional. The respondents could take possession of the land from the petitioners on payment of Rs. 9,803. In other words, the respondents could not execute the decree without deposit of Rs. 9,803 in Court or without making the payment of that amount to the petitioners. The respondents did not deposit the amount in Court when they filed the execution application on Aug. 23, 1978. This amount was also not paid to the petitioners. Under these circumstances, the execution proceedings to execute the decree dated Sept. 8, 1966, shall be deemed to have been initiated when the amount was deposited in Court on Aug. 13, 1981 for payment to the petitioners. The deposit having been made after a lapse of 12 years with effect from Sept. 8, 1966, the execution proceedings cannot be taken to have been initiated within the period of limitation. In Kharak Singh's case (supra), the Court passed a decree on March 12, 1964, for possession by specific performance in favour of the decree-holder on payment of Rs. 300. No time was fixed for depositing the amount. It was held that the limitation for executing the decree was 12 years. The decree-holder was entitled to deposit the amount within the period of limitation and execute the decree. The executing Court, after considering the evidence led by the parties, came to the conclusion that the decree-holder had paid Rs. 230 to the judgment-debtor leaving a balance of Rs. 70 towards him. The decree-holder was given time to deposit the balance amount of Rs. 70 up to March 1, 1977. The amount was deposited in accordance with the order of the executing Court. The learned single Judge held that the decree-holder is entitled to execute the decree. The learned counsel for the respondents has contended that it must be inferred from the ratio of Kharak Singh's case (supra) that the amount deposited after the period of limitation had expired would relate back to the date when the execution application was filed. In my opinion, no such inference can be raised. It has been clearly held in this authority that the decree-holder was entitled to deposit the amount within the period of limitation and execute the decree. Under the peculiar circumstances of that case, the executing Court came to the conclusion that the decree-holder had paid Rs. 230 to the judgment-debtor leaving a balance of Rs. 70. The executing Court allowed the decree-holder to deposit the balance amount of Rs. 70 up to March 1, 1977. Even assuming that the balance amount of Rs. 70 was deposited after the expiry of 12 years with effect from March 12, 1964, it would not be correct to infer that the total amount of Rs. 9,803 deposited by the respondents on August 13, 1981 shall relate back to August 23, 1978, when they filed the execution application.

14. In the result, I hold that in view of the fact that the respondents did not deposit Rs. 9,803 within a period of 12 years with effect from Sept. 8, 1966, the execution application filed by them is liable to be dismissed as time barred. I, therefore, accept the revision, set aside the order of the executing Court dated Sept. 4, 1980, and further dismiss the execution application filed by the respondents as time barred. The parties are left to bear their own costs.

15. Petition allowed.


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