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Shah Champshi Kunverji Vs. Soni Bhailal Dauji - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtGujarat High Court
Decided On
Case NumberSecond Appeal No. 220 of 1961
Judge
Reported inAIR1968Guj189; (1967)GLR1043
ActsLimitation Act, 1908 - Schedule - Article 182 and 182(1); ;Code of Civil Procedure (CPC), 1908 - Order 20, Rule 7
AppellantShah Champshi Kunverji
RespondentSoni Bhailal Dauji
Appellant Advocate K.N. Mankad, Adv.
Respondent Advocate D.U. Shah, Adv.
Cases ReferredNathulal v. Nand Ram
Excerpt:
.....to from what date period contemplated under article 182 commence in execution proceedings - date of decree for purpose of limitation under article 182 (1) is date on which judgment in suit pronounced - time spent in drawing up of decree cannot be excluded for purpose of limitation for filing execution application under article 182. - - if there was nay challenge in that direction, namely, in respect of the decree not bearing the date as 31-12-52, they would not have failed to produce the same. 7 says that 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. mankad also referred to certain decisions which i may briefly refer..........runs from the date of the judgment and not from the date of signing the decree, but since the date of decree is given as 2-2-53, the period of limitation would begin to run from that date and not from the date of the judgment. he also found that the principle of actus curiae neminum gravabit i.g. act of court shall prejudice no man, would govern the case inasmuch as the judgment-creditor was misled by that date viz. 2-2-53 on the decree and that, therefore, his filing of the first darkhast on 27-1-56 was in time. that being so, he further found that it was not open to the judgment-debtor to object to the subsequent application for execution on the ground that the previous application was barred by time, the matter being res judicata. he, therefore, rejected the contentions raised by.....
Judgment:

(1) The facts giving rise to this appeal are quite simple. Soni Bhailal Damji of Bhuj obtained a decree for a sum of Rs. 1329-3-6 together with costs of the suit and future interest against the appellant-defendant in Regular Civil Suit No. 8 of 1952 in the Court of the Civil Judge (J.D.) at Bhuj. The suit was decided on 31-12-52. A decree in pursuance of the judgment was drawn up and signed by the learned judge on 2-2-53. The plaintiff judgment-creditor thereafter filed Darkhast No. 12 of 1956 in the same Court for recovering the amount due under the decree against the defendant-judgment-debtor. That was filed on 27-1-56. Before registering the Darkest, the office had raised a point as to how the Darkhast was in time. From the endorsement made on the Darkhast application, it appears that after hearing the learned advocate for the judgment creditor the Darkhast was ordered to be registered. Notice was directed to be issued to the judgment-debtor. The notice had come back unserved as the period for his appearing in the Court was over. On that day, it appears that the decree-holder did not prosecute his Darkhast and it came to be disposed of on 21-5-56. Thereafter on 19-3-59 the judgment-creditor filed another Darkhast No 34 of 1959 for recovering the said amount from the judgment debtor by attachment and sale of his movable property. The judgment-debtor appeared and resisted the application inter alia contending that since the first Darkhast application filed against him was barred by limitation, the subsequent one was not maintainable. The contention raised by the judgment-debtor was that the first Darkhast was filed after the period of limitation of three years was over from the date of the decree as required under Art. 182 of the Indian Limitation Act and that, therefore, it was time-barred and consequently it cannot serve as a step in aid of execution to bring the subsequent Darhkast in time. The learned trial judge thought that though the limitation runs from the date of the judgment and not from the date of signing the decree, but since the date of decree is given as 2-2-53, the period of limitation would begin to run from that date and not from the date of the judgment. He also found that the principle of actus curiae neminum gravabit i.g. Act of Court shall prejudice no man, would govern the case inasmuch as the judgment-creditor was misled by that date viz. 2-2-53 on the decree and that, therefore, his filing of the first Darkhast on 27-1-56 was in time. That being so, he further found that it was not open to the judgment-debtor to object to the subsequent application for execution on the ground that the previous application was barred by time, the matter being res judicata. He, therefore, rejected the contentions raised by the judgment-debtor and directed the Darkhast to proceed further.

(2) Feeling dissatisfied with that order passed on 27-11-59 by Mr. B. J. Shelat, Joint Civil Judge, Bhuj, the defendant judgment-debtor preferred Regular Civil Appeal No. 24 of 1960 in the Court of the District Judge, Kutch at Bhuj. The only point before that Court was as to from what date the period contemplated under Art. 182 of the Indian Limitation Act would commence and in his view since the decree was drawn up and signed on 2-2-53, the period of limitation would begin to run from that date and not from the date of the decree as it should be viz., the date of judgment which was 31-12-52. It may be stated here that on the material before us it appears that the decree was drawn and signed on 2-2-53 and not on 31-1-53. In the result, therefor, he dismissed the appeal and confirmed the order passed by the learned trial Judge. Aggrieved by that decision passed on 9th January 1961 by Mr. V. M. Solanki, District Judge, Kutch at Bhuj, the judgment-debtor has come in appeal before this Court.

(3) The contention made out by Mr. K. N. Mankad, the learned advocate for the appellant, was that both the Courts have ignored the material fact about the decree showing the date of 31-12-52 as the date of decree on the basis of the judgment delivered on that date and have only taken into account the date of drawing of the decree and signing of the same by the learned Judge and that has led them to commit an error on a point of law in this proceeding. His contention further was that under Art. 182 of the Indian Limitation Act, the period for execution of a decree passed by the Civil Court is three years and that it begins to run from the date of the decree. The date of decree, as provided under O. 20 R. 7 of the Civil Procedure Code, is the date on which the judgment in the suit was pronounced. Apart from the decree having to bear that date as the date of decree as contemplated under O. 20 R. 7 of the Civil Procedure Code, the decree bears that date showing that date to be the date of the decree though at the same time the decree bears the date on which it was drawn up and signed by the learned Judge. It is essential first to ascertain as a fact as to whether the decree bore that date of the judgment as contemplated under Order 20 Rule 7 of the Civil Procedure Code for the reason that a point was made out by Mr. Shah, the learned advocate for the respondent, that it bore only the date when the decree was drawn up and signed by the Judge viz., 2-2-53. Unfortunately though the record was called for, while the record has come the original decree has not come-presumably it being if the file of the original suit in which that decree came to be passed. But Mr. Mankad, the learned advocate for the appellant, had produced before us a certified copy of the decree on the last occasion when the matter was heard and it appears that it bears the date of 31-12-52 as the date of the decree on the basis of the judgment delivered on that date. After the bill of costs is drawn up, the date 2-2-53 also appears below which there appears a signature of the learned Judge. The decree that was produced along with the Darkhast application by the judgment-creditor in the trial Court appears to have been taken away by the learned advocate of the decree holder himself and that has not been produced before us. If there was nay challenge in that direction, namely, in respect of the decree not bearing the date as 31-12-52, they would not have failed to produce the same. Apart from that position, it appears from the application in Darkhast No. 34 of 1959 that he has mentioned the date of the decree in column 3 of his application as 31-12-52. On the material before this Court, therefore, it appears abundantly clear that the decree which was sought to be executed by the decree-holder-respondent bore two dates. One was 31-12-52 it being the date on which the judgment was pronounced and in pursuance of which the decree was directed to be drawn up and the other of 2-2-53 as the date on which the decree was drawn up and the signature put there below by the learned Judge. In none of the judgments given by the Courts below, any statement negating such a fact appears. Both the judgments have proceeded on the basis that it bore the date on which the decree was drawn up and signed by the learned Judge and that was the date from which the period of limitation would commence under Art. 182 of the Indian Limitation Act.

(4) For ascertaining the date of the decree, we have to turn to the provisions contained in Order 20. R. 7 of the Civil Procedure Code. That R. 7 says that 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. This Rule, therefore, stands divided in two parts - the first with regard to the date of decree and the second with regard to the fact about his satisfaction that the decree has been drawn up in accordance with his judgment and then his signing the same. Naturally therefore, both the dates are expected to be indicated on a decree that comes to be drawn up in pursuance of a judgment in any suit decided by the Court. The date of decree, therefore, would be the day on which the judgment was pronounced and the other date would merely relate to the date on which the Judge puts his signature on the decree. The term 'decree' is defined in S. 2 (2) of the Civil Procedure Code as 'meaning the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit . . . . . . . ' Then section 2 clause (9) defines the term 'judgment' as meaning the statement given by the Judge of the grounds of a decree or order. Reading these two definitions along with Rule 7 of Order 20 of the Civil Procedure Code, it becomes clear that the date of decree is the date on which the Court has given its judgment. That is the date, therefore, which must appear on the decree itself and unless by positive evidence it is shown that it did not bear any such date, it has to be assumed that the decree bore that date viz., the date on which the judgment was pronounced by the Court. It is on that basis, therefore, that we have to consider as to whether the Darkhast filed by the judgment-creditor in pursuance of that decree bearing the date as 31-2-52 was in time on 27-1-56. If that is the date, the Darkhast would be obviously beyond the period of three years provided under Article 182 of the Indian Limitation Act.

(5) An attempt was made by Mr. Shah to suggest that since the decree bore the date as 2-2-53 as the date on which the decree was drawn up and signed by the learned Judge, the judgment creditor was likely to be misled for taking the period of limitation to run from that date and that, therefore, the period of limitation should be allowed to run from that date and not from the date of the decree viz., on the basis of the date on which the judgment was pronounced by the Court. He referred to three decisions in support of his contention. The first decision referred to by him was of Nalini Kanta Roy v. Kamaraddi : AIR1933Cal239 . In that case the date of the decision was 11th February 1929 and the decree bore the date 16th February 1929 through mistake. The decree-holder obtained the certified copy of that portion of the summons book which contained the form of the decree and was led to believe that the suit was decreed on 16th February 1929. His application for execution filed on 15th February 1932 was said to be time-barred. The High Court, however held that although the Court had no power to extend the time of limitation, yet in the interest of justice, the decree ought to be regarded as having been passed on 16th February 1929, on the principle actus curiae neminem gravabit (Act of Court shall prejudice no man). In that case there was actually a mistake committed by the Court in putting down the date of the decree viz., 16th February instead of 11th February and naturally the decree holder was led to believe that to be the date of the decree. There is no question of any mistake committed in the present case by the Court, and as already stated here above, the decree bore the date 31-12-52 as the date on which the judgment was pronounced in that suit. The case has, therefore, no application to the facts of the present case. Another case referred to by him was of Anant Ram v. Badeo Sahai AIR 1597 All 114. This case also reiterates the same principle as referred to in the earlier case that if a decree bears a wrong date, that date should be the date of decree for purposes of Art. 182, Limitation Act. There is no question of a wrong date given in the decree under execution in the present case and consequently this decision cannot help the respondent. Another case referred to by him was of Kali Prasad Sahu v. Mt. Bibi Aziz Fatma, AIR 1938 Pat 149, which also says the same thing that if the decree-holder was misled by the copy of the decree, he should not be prejudiced by the Court's mistake. That has not been the case here and consequently the principle referred to in all the three decisions would not be of any help to the respondent in the present case.

(6) On the other hand, it was pointed out by Mr. Mankad that the mention of a date when the decree is drawn up and signed by the learned Judge is not of nay consequence. According to him, the proceeding in the suit come to an end when the judgment and decree are pronounced and as held in the case of Harish Kumar Bapalal v. Chhanalal Ranchhodlal : AIR1966Guj281 , signing of the decree, which is a purely consequential administrative function, cannot be said to be a further proceeding in the suit. In other words, no sooner the judgment is pronounced, the parties thereto know the order passed in the suit and drawing up of a order or a decree and later on signing the same would be the ministerial acts done and nay date put in that respect cannot affect or make the period of limitation to run from that date. Mr. Mankad also referred to certain decisions which I may briefly refer to as well. In Ramachandra Mardaray Deo v. Bhalu Patnaik, : AIR1950Ori125 it was held as under:-

'The phrase 'date of decree' in Art. 182 (1) should be construed wit reference to O. 20, R. 7 Civil P. C., AS The date when the judgment is pronounced and not the date when the decree is actually drawn up and signed. Hence an application for execution filed more than three years from the date judgment but within three years from the date signing of the decree, will be barred by limitation. Where the decree gives the date of judgment as the date of decree there can be no question of the decree-holder being in any way misled by the fact that it also gave the date on which it was actually signed.'

This decision applies on all fours to the present case, for , in the present case on the decree also both the date on which the decree was signed has been given, cannot be taken as one which was the likely to misled the decree-holder about the date of commencement for the purpose of limitation for filing an execution application in pursuance thereof. Another case relied upon by him was of Rajeshwar Raj v. Shankar Raj : AIR1962Pat398 , where it was held as follows:

' Reading Ss. 2(2), 2 (9), 33 and O. 20, Rr. 1, 6 and 7 together it must be held that the 'decree' as defined in S. 2 9 (2) comes existence a soon the judgment is pronounced. It does not necessarily mean the formal decree which is prepared in accordance with Section 33 and order 20 Rule 6. The definition of the word 'decree-holder' means a person in whose favour a decree has been passed as soon as the judgment has been pronounced, and not necessarily a person in whose favour a decree has been formally prepared as required by Section 33. Apparently, although an appeal cannot be filed until the formal decree has been drawn up and prepared, an execution case can be filed the execution of the decree which has really come into existence by the pronouncement of the judgment, but it is to be formally drawn up and written subsequently.

Another case of Nathulal v. Nand Ram : AIR1960MP108 , was referred to. It also lays down the same thing viz., that the expression ' date of the decree' in the Limitation Act means the date the decree is directed to bear under Order 20, Rule 7, Civil P.C., that is the date when 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. Later on, it has been observed that it accrues as soon as the decree is made, that is immediately after the judgment is pronounced. It is for the decree holder 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. In other words, even any time spent in drawing up of a decree and obtaining the signature of the Judge cannot be excluded for the purpose of period of limitation provided under Art. 182 of the Indian Limitation Act.

(7) It appears, therefore, clear that the date of decree for the purpose of limitation under Art. 182 (1) of the Indian Limitation Act is the date on which the judgment in the suit was pronounced as contemplated under O/ 20, R. 7 of the Criminal Procedure Code . It is from that date that the decree becomes executable and any time spent in drawing up of a decree cannot be excluded for the purpose of limitation for filing an execution application under Art. 182 of the Indian Limitation Act . Since the decree bore the date viz., 31-12-52, there cannot arise any question of the decree-holder being misled by reason of the other date put below the decree viz., of the day on which it was drawn up and signed by the Judge. The first darkhast was, thus, filed beyond the period of the three years from the date of decree viz., 31-12-52 and that way it was obviously time-barred.

(8) Once it is found that the first Darkhast was time-barred, it is clear that it cannot serve as a step-in-aid of execution so as to entitle the decree holder to claim further period on that account. What was, however, urged by Mr. Shah in this connection was that point of limitation was decided by the trail Judge at the time when the first Darkhast was filed and it open to the judgment-debtor to raise that contention in the subsequent Darkhast by reason of the application of principles of res juducata contemplated under Section 11 of the Civil Procedure Code. While it is true that the principles of res judicata would apply to execution proceedings, the question is as to whether that point if limitation was finally decided by the Court after hearing the parties in that Darkhast. As already stated here above, a point was raised by the offices calling upon the plaintiff's advocate to show as to how the Darkhast was in time. It appears that the learned advocate must have been heard by the Court and then the Court directed the Darkhast to be registered. That hearing was ex part i. e., before the notices contemplated under order 21, R. 22 of the Civil Procedure Code was issued against the judgment-debtor could appear and raise any contention, the Darkhast is sough to be disposed of by the decree-holder. An attempt was made to suggest that the proceedings show that it was at the instance of the defendant-judgment-debtor that the Darkhast had come to be urged that he was served with a notice; that he appeared, request the Darkhast was disposed of. All that the proceedings of 16-3-56 show is that at his request is that the notice issued against the defendant judgment -debtor has come back. They do not show that that judgment-debtor has been served and that it has come back duly served. From the envelope containing that notice issued against the judgment- debtor, it appears that as the period has expired, it has been returned. In other words, the judgment-debtor was not served at all. We find no statement or any material of recode to show that he had appeared and made any such statement as the prodeecing tend to indicate. It appears to be a clear mistake in writing the word' .....instead of .... in the proceedings of 16-3-56. As I said above, the point if limitation was not raised in the presence of the judgment-debtor and it was obviously not that matter. It cannot, therefore, be said to have been finally decided so as to invoke a defence sought to be made out by Mr. Shah before this court. Such a point has no substance and it cannot avail to him.

(9) the appeal is allowed. The order passed by the Courts below is set aside. The Darkhast is time-barred and is dismissed. The respondent shall pay costs of the appellant all thoughout.

(10) Appeal allowed.


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