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Biswapati Dey Vs. Kennsington Stores and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata High Court
Decided On
Case NumberSuit No. 2017 of 1956
Judge
Reported inAIR1972Cal172
ActsLimitation Act, 1963 - Schedule - Article 136
AppellantBiswapati Dey
RespondentKennsington Stores and ors.
Advocates:Mullick, Adv.
DispositionApplication dismissed
Cases ReferredJagannath Jugal Kishore v. Chimanlal Chowdhuri
Excerpt:
- .....in the third column of article 136 of the limitation act of 1963. by the said provision 12 years' time has been given for the execution of a decree. the said article provids :'136. forthe execution of any decree (other than a decree granting a mandatory injunction)or order of anycivil court.twelve years.when the decree or orderbecomes enforceable or where the decree or any subsequent orderdirects any payment of money or the delivery of any property to be made at acertain date or at recurring periods when default in making the payment or deliveryin respect of which execution is sought takes place; provided that anapplication for the enforcement or execution of a decree granting a perpetualinjunction shall not be subject to any period oflimitation.2. on behalf of the decree-holder.....
Judgment:
ORDER

Ramendra Mohan Datta, J.

1. The short but important point involved in this execution application is about the meaning of the expression 'when the decree or order be-comes enforceable' as provided in the third column of Article 136 of the Limitation Act of 1963. By the said provision 12 years' time has been given for the execution of a decree. The said Article provids :

'136. Forthe execution of any decree (other than a decree granting a mandatory injunction)or order of anycivil Court.

Twelve years.When the decree or orderbecomes enforceable or where the decree or any subsequent orderdirects any payment of money or the delivery of any property to be made at acertain date or at recurring periods when default in making the payment or deliveryin respect of which execution is sought takes place; provided that anapplication for the enforcement Or execution of a decree granting a perpetualinjunction shall not be subject to any period oflimitation.

2. On behalf of the decree-holder It is argued that the time to obtain the certified copy of the decree should be excluded in computing the period of 12 years mentioned in column two of the aforesaid Article and 12 years should start running from the date when the certified copy thereof is obtained from court. The point arises on the following facts :

3. On 30th November 1956 the decree herein was passed. Requisition to draw up the decree was put in on the very same date. Thereafter the draft decree was issued for approval and the same was settled and passed finally on 19th March, 1957. The decree was filed on 25th June, 1957. On behalf of the decree-holder stamps were put in on 10th August 1959 for obtaining the certified copy of the decree. The present tabular statement was taken out on 25th January 1969 accompanied by the certified copy.

4. The matter came up for hearing before Ghose, J. on 24th February, 1970 when the decree-holder was given liberty to use a further affidavit. It appears that since 9th March 1970 this application became ripe for hearing againbut the same was adjourned from time to time at the request of the parties.

5. Although the date for obtaining the certified copy has not been furnished yet the point was considered on the basis that the same must have been supplied not earlier than 25th June 1957 when the decree was filed. It would appear that if I hold that the time to obtain the certified copy is to be excluded, in that event by computing the period of 12 years from 25th June 1957 the application would be within time but if I hold that the date of the decree is the relevant date when time has begun to run within the meaning of the expression 'when the decree becomes enforceable' then in that event the application must be held to be barred by limitation.

6. If the language used In the third column is read as a whole, a clear meaning is 'found in respect of the expression 'When the decree or order becomes enforceable'. The word 'enforceable' has been used in the context of such decrees or orders whose operations have been kept in abeyance by the language used in the said decrees or orders themselves. The intention of the Legislature in using the word 'enforceable' must have been to clear up any confusion that might have arisen by using the expression 'the date of the decree or order' which was used in the earlier Act. My attention has been drawn to the Obiects and Reasons for framing the above article, as set out in the 4th Edition of A. I. R. Commentary on the Law of Limitation, Vol. II at p. 1870 as follows :

'Existing Article 182 has been a fruitful source of litigation and therefore the proposed Article 135 (now Article 136) in lieu thereof, provides that the maximum period of limitation for the execution of a decree or order of any civil court shall be 12 years from the date when the decree or order became enforceable (which is usually the date of the decree or order) or where the decree or subsequent order directs anv payment of money or delivery of any property to be made at a certain date or at recurring periods from the date of the default in making the payment or delivery in respect of which the applicant seeks to execute the decree or order. There is no reason why a decree should be kept alive for more than 12 years. Section 48 of the Civil Procedure Code, 1908. provides that a decree ceases to be enforceable after 12 years. In England also the time fixed for enforcing a judgment is 12 years. Where, however, the judgment-debtor has by fraud or force prevented the execu-tion of a decree within the prescribed period, suitable provisions for extending the period are being made in Clause 16 (now Section 17) of the Bill on the lines of Section 48(2) of the Code of Civil Procedure, 1908.'

'Existing Article 183, which makes special provision for decrees and orders of Courts established by Royal charter, is no longer necessary.'

'It is also provided that the period of 12 years will not apply to decrees granting perpetual injunction.'

--S. O. R.'

7. The intention of the legislature has been clearly expressed by the language used therein also, the intention being to give 12 years certain from the date when the decree or order would become enforceable. Normally the date when the decree becomes enforceable is the date of the decree but the third column also envisages cases where by the language of the decree itself the decree would be kept in abeyance for certain period or till the happening a certain event Under such circumstances the decree would be enforceable when such period expires or when the event occurs.

8. In my opinion, there is no ambiguity in the language used in the third column and the words used therein should be read in their literal sense. The said third column cannot, in my opinion, warrant any other construction except in the way it has been read as above.

9. Mr. Mullick on behalf of the decree-holder contends that the decree does not become enforceable until the certified copy thereof is obtained from this Court because any execution application without such certified copy being annexed thereto would be dismissed in limine by the Calcutta High Court in its Original Side in view of Chapter XVII Rule 10 wherein it is, inter alia, provided :

'In all cases, the application shall be accompanied by a duly certified copy of the decree.'

By the said Rule 10 of Chapter XVII of the Original Side Rules, the form of the application for execution of the decree has been prescribed and the application is required to be made in accordance with the said form. It has been decided in various cases that unless the execution application shall be accompanied by a certified copy of the decree then the same would be dismissed in limine. Accordingly, it is argued by Mr. Mullick that this time has got to be excluded in computing the period 12 years as provided under Article 136 of the Limitation Act of 1963 otherwise there will be lack of uniformity in respect of the said period of 12 years insuch applications for execution in different High Courts or between different Courts in the same High Court.

10. It is difficult to appreciate Mr. Mullick's argument It is true, that whatever the reason might be. in this case the certified copy has been issued long after the requisition was given for drawing up the decree. But these rules have been framed relating to the formalities to be observed in the execution applications and are matters relating to the procedure to be followed. Had the intention of the legislature been such that the time to obtain the certified copy should be excluded then that would have found expression in the sections of the Limitation Act.

11. In any event, the time takenfor obtaining the certified copy of the decree is not uniformly the same and normally the Court will not take such long time as has been taken in this case. There may be cases where in case of urgency the certified copy can be obtained at the earliest possible time and soon after the decree is passed say within two or three days. To put up such a plea that the department concerned must take considerable time to make the certified copy available has no basis. In any event, when the legislature granted such a long time as 12 years the legislature must have taken into consideration the fact that the decree holder might take some reasonable time to obtain the certified of the decree and such time would be deemed to be included within the period of 12 years. In my opinion Chap. XVII Rule 10 ofthe Original Side Rules come into play actually at the time of executing the decree through an execution application before the Original Side of this Court and not before that although the decree might be enforceable on the day it is passed. That, in my opinion, is the distinction between the said two expressions viz., 'to execute' and 'to enforce'. Accordingly Chapter XVII Rule 10 cannot stand in the way of the language used in the third column of Article 136 of the Limitation Act of 1963.

12. Mr. Mullick next argues that the delay caused by the Court in supplying the certified copy of the decree and the default committed thereby should not visit the decree holder and referred to the case of Midnapore Zemindary Co. Ltd. v. Naba Kumar Singh Dudhoria, AIR 1950 Cal 298 and to the case of Bharat Chandra Bera v. Rajendra Nath Ghose, : AIR1961Cal155 . In my opinion, the principles referred to in the above cases cannot be applied to the facts of the case before me inasmuch as in supplying the certified copy of thedecree and in taking some time for it, the Court through its department does not commit any default or laches so as to create prejudice to the decree holder. Experience shows that mostly due to the laches on behalf of the parties that time is taken more than what it should be taken by the department. Otherwise if things proceed normally the Court or its department cannot take much time in supplying the certified copy of the decree.

13. My attention has been drawn to the case of Lala Baijnath Prosad v. Nurisingdas Guzrati, : AIR1958Cal1 . where the Division Bench of this Court considered the meaning of the expression : 'A person's right to enforce the decree' under Article 183 of the Limitation Act of 1908. There also a point was taken that the time to take that the certified copy of the decree as reauired by Ch. XVII Rule 10 of the Original Side Rules of the High Court should be excluded. In rejecting the said contention, it was observed by the Bench that where the language of the decree was such that it was immediately executable the starting point of limitation under Article 183 would be the date of passing of the decree and not when the certified copy of the decree as required by Chap. XVII of Rule 10 of the Original Side Rules of the High Court would be obtained.

14. In the case of Jagannath Jugal Kishore v. Chimanlal Chowdhuri, AIR 1949 Cal 113 the expression 'to execute' a decree under Article 182 of the Limitation Act of 1908.

15. In my opinion Article 136 of the Limitation Act of 1963 has set a new deadline beyond which no application for execution of the decree can be made. The period of 12 years is long enough to execute a decree when it is enforceable and the intention of the legislature is quite apparent from the language used therein that the time to make the execution application is 12 years from the time when the decree or order becomes enforceable.

16. In that view of the matter, the application for execution must be dismissed with cost and I make an order accordingly.

17. Certified for counsel.


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