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Muthuswami Udayar Vs. Saminatha Udayar and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai High Court
Decided On
Reported in(1982)2MLJ132
AppellantMuthuswami Udayar
RespondentSaminatha Udayar and ors.
Cases ReferredAnant Ram v. Basdeo Sahai
Excerpt:
- - this maxim' is founded upon justice and good sense; and affords a safe and certain guide for the administrative of the law......the execution petition and hence the plaintiff (decree-holder) has come forward with this civil revision petition assailing the said order of the lower court.2. the contention of learned counsel for the revision petitioner is that the lower court ought to have held that the revision petitioner should not be made to suffer or be penalised for the act of the court in giving a date to the decree different from that of the judgment in the second appeal. in support of this contention, mr. srisailam refers to the decision in nalini kanta v. kamaraddi : air1933cal239 , and the decision in arrant ram v. basdeo sahai : air1957all114 . he also refers to the passage in pages 73 and 74 of broom's legal maxims (1939 edition) in this connection. the legal maxim referred to by learned counsel.....
Judgment:
ORDER

S. Swamikkannu, J.

1. This is a petition filed by the plaintiff (decree-holder) against the order passed in E.P. No. 170 of 1979 in O.S. No. 444 of 1959 on the file of the Court of the District Munsif of Ariyalur, dated 29th August, 1979. The learned District Munsif dismissed the execution petition which was filed under Order 21, Rules 11, 54 and 66 of the Code of Civil Procedure for execution of the decree by attachment and sale of the immovables of the first judgment-debtor for the realisation of past and future mesne profits. The judgment in the second appeal Natesa Udayar v. Muthuswami Udayar Swamintha Udayar S.A. No. 1772 of 1962, on the file of the High Court, Madras, was passed on 14th September, 1966. The certified copy of the decree in the second appeal also bore the date 14th September, 1966, on top of the decree in the preamble portion. However, the date as against the designation of the officer of the High Court, viz., the Deputy Registrar, Appellate Side, who signed the decree after it was prepared, appeared to be 29th October, 1966. On the basis of the date appearing a& 29th October, 1966 as against the designation of the officer who signed the decree, it is contended by Mr. Srisailam, learned Counsel for the revision petitioner, that though in the preamble portion the decree bears the date 14th September, 1966, yet, as the decree bears the date of 29th October, 1966 at the end on which1 date it was signed by the officer, the period of limitation for execution of the decree should be computed as from the date 29th October, 1966, namely the date on which the decree was prepared and signed and, as such, the revision petitioner is entitled to have the decree executed within twelve years from 29th October, 1966, as contemplated by Article 136 of the Limitation Act, 1963, (corresponding to Article 182 of the Limitation Act, 1908). The lower Court in its order under revision, had held that the period between the date of the judgment, viz., 14th September, 1966 and the date on which the decree is seen to have been signed, viz., 29th October, 1966, cannot be excluded under Section 12(2) of the Limitation Act and the same has no application as per the decision in Lalchand Ramchand v. Kanhaialal Rambharose : AIR1961MP223 , and, as such, as per rule 118 of the Civil Rules of Practice, the decree can be enforced forthwith, even if the costs are not ascertained1 by the High Court, when exercising its original jurisdiction and. inasmuch as the execution petition is not for costs only, the time as stated by the learned Counsel for the petitioner cannot be excluded and that as per Article 136 of the Limitation Act, 1963, the execution petition had to be filed within twelve years, from the date of the decree, i.e., 14th September, 1966 as the decree became executable as from that date, and not 29th October, 1966, because the judgment in the second appeal was passed on 14th September. 1966, itself, and though the decree bore the date 29th October, 1966, as its end as against the designation of the officer, who signed the decree, the execution petition had to be construed as one filed beyond the period of limitation of twelve years. In other words, the lower Court held that the execution petition was barred by limitation when it was filed, by virtue of Article 136 of the Limitation Act, 1963. On this view, the lower Court dismissed the execution petition and hence the plaintiff (decree-holder) has come forward with this civil revision petition assailing the said order of the lower Court.

2. The contention of learned Counsel for the revision petitioner is that the lower Court ought to have held that the revision petitioner should not be made to suffer or be penalised for the act of the Court in giving a date to the decree different from that of the judgment in the second appeal. In support of this contention, Mr. Srisailam refers to the decision in Nalini Kanta v. Kamaraddi : AIR1933Cal239 , and the decision in Arrant Ram v. Basdeo Sahai : AIR1957All114 . He also refers to the passage in pages 73 and 74 of Broom's Legal Maxims (1939 Edition) in this connection. The legal maxim referred to by learned Counsel is, 'actus curiae neminem gravabit (an act of the Court shall prejudice no man). The relevant passage on the maxim runs as follows:

'This maxim' is founded upon justice and good sense; and affords a safe and certain guide for the administrative of the law. In virtue of it, where a case stands over for argument on account of the multiplicity of business in the Court, or for judgment from the intricacy of the question, the party ought not to be prejudiced by that delay but should be allowed to enter up his judgment retrospectively to meet the justice of the case; and therefore, if one party to an action die during a curia advisari vult, judgment may be entered nunc pro tunc, for the delay is the act of the Court, for which neither party should suffer.

In a case involving issues both of law and fact, the issues of fact were tried in August, 1843, a verdict was found for the plaintiff, and a request for, a new trial was discharged in Trinity Term 1844, in the same terms the domurrers were set down in the special paper, but did not come on for argument until May, 1945, when judgment was given upon them for the plaintiff. The plaintiff, having died in March, 1845, the Court made absolute a rule to enter judgment as of Trinity Term 1844. It may be here mentioned that the power of the Court to enter judgment nunc pro tunc does not depend upon statute. It is a power at common law, and, in accordance with the ancient practice of the Court, is adopted in order to prevent prejudice to a suit or from delay occasioned by the act of the Court.

Where, however, the delay is not attributable to the act of the Court, the above maxim does not apply. And in one case statute has created a possibility of prejudice by delay of the Court. If a receiving; order is made against the defendant in an action of tort before final judgment, even though a verdict for damages has already been returned by the jury, the plaintiff cannot prove for the damages in the ensuing bankruptcy of the defendant.

The preceding examples will probably be sufficient to illustrate the general doctrine, which is equally founded on common sense and on authority, that the act of a Court of law shall prejudice no man; and in conformity with this doctrine, it has been observed, that, as long as there remains a necessity in any stage of the proceedings in an action, for an appeal to the authority of the Court, or any occasion to call upon it to exercise its jurisdiction, the Court has, even if there has been some express arrangement between the parties, an undoubted right, and is, moreover, bound to interfere, if it perceives that its own process or jurisdiction is about to be used for purposes which are not consistent with justice.

3. On the other hand, learned Counsel for the respondent submits that the decision in Gopalakrishna v. Brosayya I.L.R. (1955) Mad. 498, is applicable to the facts of this case, and as such, the ratio decidendi in that decision will have to guide this Court in disposing of this revision petition.

4. The point that arises for consideration in this revision petition is whether it is the date viz., 14th September, 1966, that is found on the decree at the commencement, in the preamble portion, below the name of the Court that passed the decree in the second appeal, or it is the date viz., 29th October, 1966, that is found at the bottom of the decree as against the designation of the officer of the High Court who signed the decree after it was prepared, that has to be taken into consideration in computing of the period of limitation for execution.

5. It is needless to say that it is only the date that is found at the tope of the decree in the preamble portion, i.e., 14th September, 1966, that ought to be taken into consideration in computing the period of limitation, and not the date that appears at the end of the decree, viz., 29th October, 1966, when the decree was signed by the officer of the Court. In this regard, this Court is of the view that the decision in Gopalakrishna v. Brosayya I.L.R. (1955) Mad. 498, has to be applied to the facts of this case. The observation of Venkatarama Ayyar, J., in the said decision relating to the point in controversy, can be usefully referred to. The passage runs as follows:

Having regard to this rule (Rule 7 of Order 20 of the Code of Civil Procedure, 1908) it has been held that limitation runs from the date of the judgment which is the date which the decree should bear and not later when the decree is actually pre pared and signed....

In Ramachandra Deo v. Bhalu Patnaik I.L.R. (1950) Cut. 253 , it was held by a Full Bench of the Orissa High Court that the phrase 'date of decree' in Article 182 (of the Limitation Act of 1908) should be construed with reference to Order 20, Rule 7 of the Code of Civil Procedure as the date when the judgment is pronounced and not the date when the decree is actually drawn up and signed....

The Division Bench of the Madras High Court in Gopalakrishna v. Brosayya I.L.R. (1955) Mad. 498, also cited another decision in Venkataraya Goundan v. Mallappa Goundan : AIR1946Mad348 , in which it had been observed that the adjudication became ripe for execution on the date of the judgment, in that the respective rights of the parties had been adjudicated and decided on and it was only the formalities to be observed in-drafting the decree that had to be yet carried out.

6. Nalini Kanta v. Kamaraddi : AIR1933Cal239 , already referred to, would not be applicable to this case because, in that case, a decree was by mistake dated 16th February, 1929, whereas the date of the decision was actually 11th February, 1929. The decree-holder took a certified copy of that portion of the summons books which contained the formal decree and was therefore led to believe that the decree was passed on 16th February, 1929. His application for execution was filed on 15th February, 1932. In those circumstances, it was held that although the Court had no power to extend the time of limitation, yet in the interests of justice the decree ought to be regarded as having been passed on 16th February, 1929, on the principle of 'actus curiae nominem gravabit' (the act of Court shall prejudice no man). In the instant case, therefore the contention of the revision petitioner's counsel that it is the date 29th October, 1966, when the decree was prepared and signed that has to be taken into consideration for computing the period of limitation for execution, is untenable and unsustainable.

7. The decision in Anant Ram v. Basdeo Sahai : AIR1957All114 , also cannot come to the rescue of the revision petitioner because, in the said decision, the order for preparation of final decree was passed on 8th July, 1937, and the final decree was actually prepared and signed as on 23rd July, 1937, and the date of the decree, according to the decree itself, was 23rd July, 1937, and the first execution application filed on 17th July, 1940, was held to be within time. It was also held in that case that Order 20, Rule 7, Civil Procedure Code (V of 1908), provided that date should be given to the decree and it did not provide that if a different date was given in the decree it should be ignored, and parties or Court should always go to the judgment to find out what the date of decree should be. It was also observed in that decision that Order 20, Rule 7, Civil Procedure Code, did not apply to a case where a preliminary and final decree were contemplated and that the order for preparation of a final decree was not a judgment as it did not adjudicate upon the rights of the parties. The Allahabad High Court observed as follows:

The period for filing an application for execution begins to run from the date of the decree in. view of the provisions of Article 182 of the 1st Schedule to the Limitation Act of 1908. The date of decree, according to the decree itself, is 23rd July, 1937 and therefore the first execution application filed on 17th July, 1940, was within time irrespective of the question whether the decree-holder had been misled or not about the date of the decree on the supposition that the date of the decree should have been 8th July, 1938, on which date the order of the preparation of the final decree was passed.

The contention for the appellant is that as Order 20, Rule 7, Civil Procedure Code, provides that the decree shall bear the date on which the judgment was pronounced, the date of decree should be taken to be the date of judgment and not the date which the decree happens to bear erroneously, Order 20, Rule 7 just provides that date be given to the decree. It does not provide that if a different date is given in the decree, then that date should be ignored and the parties or Court should always go to the judgment to find out what the date of the decree should be and must be held to be. If the decree bears a wrong date, that date should be the date for purposes of construing Article 182 of the First Schedule, Limitation Act.

If further appears to us that Order 20, Rule 7, Civil Procedure Code, does not apply to the present case. The order for the preparation of a final decree is not a judgment. It does not adjudicate upon the rights of the parties. The rights of the decree-holder, in case the judgment-debtor makes defaults in making payments, are decided and laid down in the preliminary decree. What the Court has to decide sometimes after presentation of an application for the preparation of the final decree is the objection of the judgment-debtor, if any, about some alleged payment to the decree-holder.

That is not the decision on any question of rights of the parties in the suit. It is a decision of an objection on a point not arising in the original suit itself but arising within the terms of the preliminary decree. It is in view of some such distinction, it appears, that the forms for the preparation of the final decree for sale and some other final decrees under Order 34, Civil Procedure Code, given in Appendix D do not start in the same way in which forms in other decrees in original suits start or even the form 7-F for the preparation of a final decree, on payment of the money starts.

8. In the instant case, the lower Court had taken into consideration the date of the judgment rendered by this Court in Second Appeal No. 1772 of 1962, namely 14th September, 1966, and had computed the period of limitation and had held that the execution petition filed before it was barred by limitation as per Article 136 of the Limitation Act, 1963. In arriving at the said conclusion, the lower Court has not committed any error of law or any error in the exercise of jurisdiction, for this Court to interfere with its order which is under revision. There are no merits in the civil revision petition and it is dismissed. But, in the circumstances, there will be no order as to costs.


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