Chiranji Lal (Since Decd.) ... vs Hari Das Sood (Since Decd.) ...
2000 Latest Caselaw 1182 Del

JUDGMENT

Arun Kumar, J.

1. This appeal involves a short question of law and therefore, with the consent of the learned Counsel for the parties we have taken it up for final hearing at this stage itself. The question for consideration is : "What is the starting point for purposes of calculating the period of limitation for execution of a final decree in a suit for partition of properties by metes and bounds?"

2. Briefly the facts which are necessary to appreciate the controversy in the present case are that the final decree for partition by metes and bounds was passed on 7th August, 1981. The stamp papers which are required to be filed for purposes of drawing up the final decree in a suit for partition of properties were filed by the decree-holder on 25th May, 1982. The execution application was filed on 21st March, 1994. The objection was taken by the judgment-debtor that the decree was in executable in view of Article 136 of the Limitation Act. The said Article provides a period of 12 years for execution of a decree. The learned Single Judge rejected the preliminary objection based on limitation and directed issuance of warrants of possession. The present appeal is against the said order of the learned Single Judge.

3. The learned Counsel for the appellant submitted that in view of provisions of Rule 7 of Order XX of the Code of Civil Procedure the decree has to bear the date on which the judgment is pronounced. In the present case the.judgment was pronounced on 7th August, 1981 whereby a final decree in the suit for partition was passed and therefore, the said date is to be taken as the material date for execution of decree. As per Article 136 of the Limitation Act, the decree was executable within a period of 12 years. Since the execution was filed beyond the period of 12 years, it had to be dismissed on the ground of limitation. In support of his argument the learned Counsel for the appellant besides relying on Article 136 of the Limitation Act, drew our attention to Rule 6A of Order XX, CPC to convass that the period of limitation has to commence from the date of passing of the final judgment. This according to the Counsel is clear from Clause 2 of Rule 6A with particular reference to the language of Sub-clause (b). Clause (2) lays down that every endeavour should be made to ensure that a decree is drawn up as expeditiously as possible and in any case within 15 days from the date on which the judgment is pronounced. According to Sub-clause (b) last paragraph of the judgment shall be deemed to be the decree for purposes of execution of the decree so long as the decree is not drawn up. It is clear from the language of Sub-clause (b) that so long as the decree is not drawn up, the last paragraph of the judgment can be used for purposes of execution of the decree. Clause (2) of Rule 6A permits a party to apply to the Court in a case where the decree is not drawn up within 15 days, to certify that the decree has not been drawn up so that the last para of the judgment may be treated as decree for purposes of appeal or execution.

4. It is submitted that the scheme of Rule 6A suggests that a party need not wait for the formed drawing up of a decree by Court. If it is desirous of executing the same it can proceed in accordance with Rule 6A and pray that last paragraph of the judgment be treated as decree. On the basis of these provisions it is submitted that the intention behind Rule 6A is that on account of non-preparation of the decree with is an administrative act of the Court, a party should not be allowed to take advantage by delaying filing of execution or appeal, as the case may be.

5. It is further submitted that if the period of limitation is to be counted from the date when stamp papers are filed in Court for drawing up the final decree, it will amount to leaving the matter of execution of the decree within control of the decree holder. The decree-holder may choose to file the stamps after five years or ten years and could it be that the period of limitation for executing the decree will start running from that date. Law will not permit such as uncertainty nor will it permit that the control be left entirely in the hands of the decree-holder. Further it is submitted that in view of the fact that it is mentioned in Rule 6A that the decree should be drawn in any case within 15 days, it is apparent that the intention is that the limitation for executing the decree should start running immediately on the judgment being pronounced.

6. On the other hand the learned Counsel for the respondent/decree-holder submitted that the Code of Civil Procedure concerns procedures whereas the Limitation Act is a piece of substantive legislation. The provisions of Limitation Act will prevail in the event of any conflict with provisions of the Code of Civil Procedure. This argument has been advanced to support the contention, that Article 136 of the Limitation Act prescribes a period of limitation of 12 years for execution of a decree and this period starts running from the date when the decree becomes enforceable. According to the learned Counsel a decree in a partition suit becomes enforceable when it is drawn on requisite stamp papers. In this connection he drew our attention to the relevant provisions of the Stamp Act. In view of Section 2(15) a decree effecting partition is an instrument of partition and would require to be stamped. Till it is stamped it will not be enforced. Therefore, on the basis of this provision it was submitted that even if Rule 6A of Order XX of the Code of Civil Procedure was to indicate any different intention, a decree in a partition suit can be enforceable only after it is drawn on stamp paper and that will be the material date for purposes of calculating the period of limitation.

7. Next our attention was drawn to Order XX Rule 18, CPC which contains provision regarding decree in a suit for partition of property. According to the learned Counsel, this Rule contains specific provision regarding decrees in suits relating to partition of property and therefore, Rule 6A will not be attracted in such cases. The learned Counsel relied on a Full Bench decision of the Calcutta High Court in Bholanath Kannakar and Ors. v. Madanmohan Kannakar etc., , wherein it was observed : "the words 'where the decree is not drawn up in Rule 6A(2) would obviously contemplate a case where the decree could be, but has not been drawn up by the Court and cannot refer to a case where, as in a partition suit, the decree could not at all be drawn up and has, therefore, not been drawn up by the Court for the requisite stamp papers not having been furnished by the parties." It is submitted that in case of a decree in partition suit, Rule 6A will not be attracted. Last para of the judgment cannot be allowed to enjoy the status of a decree because a decree in such cases is required to be on stamp papers.

8. We have considered the rival contentions advanced on behalf of the parties.

In our view there is no scope for any controversy because of the language of Article 136 of the Limitation Act which is reproduced as under :

Description of application Period of limitation Time from which period begins to run

136. For the execution of any decree (other than a decree granting a mandatory injunction) or order of any Civil Court.

Twelve years When the decree or order becomes enforceable..."

9. According to this provision limitation starts running from the date when the decree becomes enforceable. In a partition suit a decree becomes enforceable only when it is drawn up on requisite stamp papers. Therefore, unless and until the decree is drawn on stamp papers it is a mere judgment of the Court and there is no decree available for execution. The reliance placed on provisions of Rule 6A of Order XX does not really advance the case of the appellant because a partition suit is to be taken as an exception to the provision contained in Rule 6A(2). Rule 6A deals with the situations where there is a deejay in preparation of the decree on the part of the Court. In a partition suit the stage for preparation of final decree will come only after the requisite stamp papers are filed. Therefore, Rule 6A will strictly not apply in case of execution of a final decree in a partition suit. The provisions of Order XX have been enacted to ensure that delay in preparation of a formal decree does not stand in the way of a successful party in executing the decree. However, where there is a requirement of the decree being drawn on stamp papers in view of the provisions of the Stamp Act, which is so in case of a final decree in a partition suit relating to property, Rule 6A will not apply. Last para of the judgment in case of a final decree in a suit for partition cannot be executed, what can be executed is the final decree drawn on a stamp paper. Therefore, we are unable to agree with the contention raised by the learned Counsel for the appellant. This view finds support from the observations of the Supreme Court in Shankar Balwant Lokhande (deceased) through L. Rs. v. Chandrakant Shankar Lokhande and Anr., . While dealing with the question of limitation as per the provisions of Article 182 of the old Limitation Act, it was observed:

"Therefore, Executing Court cannot receive the preliminary decree unless final decree is passed as envisaged under Order XX Rule 18(2). After final decree is passed and a direction is issued to pay stamped papers for engrossing final decree thereon and the same is duly engrossed on stamped paper(s), it becomes executable or becomes an instrument duly stamped. Thus, condition precedent is to draw up a final decree and then to engross it on stamped paper(s) of required value. These two acts together constitute final decree, crystallizing the rights of the parties in terms of the preliminary decree. Till then, there is no executable decree as envisaged in Order XX Rule 18(2), attracting residuary Article 182 of the old Limitation Act. Contrary views of the High Courts are not good law."

10. Learned Counsel for the appellant tried to distinguish the aforesaid judgment by submitting that it was a case under the old Limitation Act and relied upon recent judgment of the Supreme Court in the case of West Bengal Essential Commodities Supply Corporation v. Swadesh Agro Farming and Storage Pvt. Ltd and Anr., , and on the basis of. which it was sought to be contended that a decree becomes enforceable the moment the judgment is delivered and merely because there would be delay in drawing up of the decree, it cannot be said that the decree is not enforceable till it is prepared. After discussing the law on the point, the position is summarised in Para-11 of the judgment which reads as under :

"It follows that the decree became enforceable the moment the judgment is delivered and merely because there will be delay in drawing up of the decree, it cannot be said that the decree is not enforceable till it is prepared. This is so because an enforceable decree in one form or the other is available to a decree-holder from the date of the judgment till the expiry of the period of limitation under Article 136 of the Limitation Act."

11. However, a detailed scrutiny of that case would strengthen the opinion we are taking. That was a case of money decree. After laying down the law in Para-11, as mentioned above, in Para 13 of the judgment of Supreme Court carved out the exceptions/situations in which a decree may not be enforceable on the date it is passed. Para-13 reads as under :

"There may, however, be situations in which a decree may not be enforceable on the date it is passed. First a case where a decree is not executable until the happening of a given contingency, for example, when a decree for recovery of possession of immovable property directs that it shall not be executed till the standing crop is harested, in such a case time will not begin to run until harvesting of the crop and the decree becomes enforceable from that date and not from the date of the judgment/decree. But where ao extraneous event is to happen on the fulfilllment of which alone the decree can be executed it is not a conditional decree and is capable of execution from the very date it is passed Yashwant Deorao v. Walchand Ramchand, . Secondly, when there is a legislative Bar for the execution of a decree then enforceability will commence when the bar ceases. Thirdly, in a suit for partition of immovable properties after passing of preliminary decree when, in final decree proceedings, an order is passed by the Court declaring the rights of the parties in the suit properties, it is not executable till final decree is engrossed on non-judicial stamp paper supplied by the parties within the time specified by the Court and the same is signed by the Judge and sealed. It is in this context that the observations of this Court in Shankar Balwant Lokhande (Dead) by Lrs. v. Chandrakant Shankar Lokhande and Anr., , have to understood. These observations do not apply to a money decree and therefore, appellant can derive no benefit from them"

12. That the view taken in the judgment of Supreme Court in the case of Shankar Balwant Lokhande (supra), was specifically affirmed and reiterated. It was held that in a suit for partition of immovable properties, decree is not executable till final decree is engrossed on non-judicial stamp paper supplied by the parties within the time specified by the Court and the same is signed by the Judge and sealed. Therefore, judgment in the case of Shankar Balwant Lokhande (supra), and interpretation thereof in Swadesh Agro Farming (supra), become binding precedents under Article 141 of the Constitution.

13. So far as the argument of the learned Counsel for the appellant that taking the date of filing of stamp papers as the starting point of limitation would amount to leaving control of execution of the decree in the hands of the decree-holder is concerned, we would like to observe that normally the Court while passing the final decree for partition in a suit relating to immovable property should specify the time within which stamp papers ought to be filed for drawing up the final decree. If such a direction is issued, normally the party would file the requisite stamp papers within the time allowed by the Court, else the party would move for extension of time. This would avoid a situation where the filing of stamp papers for drawing up a final decree is left entirely to the discretion of a party. We may also note another argument of the learned Counsel for the appellant. This argument is that in view of the provisions of Order XX Rule 7, CPC a decree has to bear the date of the judgment. Therefore, even, when stamp papers are filed after long lapse of time of passing of the judgment, the decree which will be ultimately drawn will bear the date of the judgment. This according to the Counsel should be the starting point of limitation. We do not agree. It is true that the decree whenever it is drawn will bear the date of the judgment in view of provisions of Order XX Rule 7, CPC but in face of the provisions of Article 136 which prescribes the period of limitation for execution of decree, it cannot be said that the starting point of limitation would be the date of judgment which the decree is ultimately going to bear. Article 136 as already observed refers to starting point of limitation as the date when the decree is enforceable. The decree becomes enforceable on being drawn up on requisite stamp papers. Therefore, the mere fact that the decree has to bear the date of judgment will not make any difference in case of final decree in a suit relating to partition of immovable property. Thus we hold that the starting point of limitation in case of execution of a decree in suit relating to partition of immovable property is the date when the decree is drawn on requisite stamp papers because that will be the date when such a decree becomes enforceable.

14. The appeal is accordingly dismissed with no order to costs. The matter is placed before the learned Single Judge for further proceedings in accordance with law.