Supreme Court of India
MOHINDER SINGH (DEAD) THROUGH LRS.versusPARAMJIT SINGH & ORS.
- Citation
- 2018 INSC 283
- Decided
- 28 March 2018
- Disposal
- Appeal(s) allowed
- Bench
- DIPAK MISRA
Holding
The limitation period under Article 2(b) starts from the date the declaratory decree is obtained (i.e., when the decree sheet is drawn), and Section 14 of the Limitation Act, 1963 applies, so the suit filed on 11 June 1974 was within limitation.
Summary
The case concerned a suit for possession of ancestral land that had been alienated by a gift deed. The original plaintiff, Mohinder Singh, obtained a declaratory decree in 1963 based on a compromise, but the decree was conditional on the death of the donor, Ujjagar Singh, which occurred in 1971. The decree sheet was finally drawn on 19 August 1972, and the plaintiff filed a suit for possession on 11 June 1974. The respondents argued that the suit was barred by the three‑year limitation period under Article 2(b) of the Punjab Limitation (Custom) Act, 1920, either from the donor’s death or from the 1963 judgment. The Supreme Court held that the limitation period begins when the declaratory decree is "obtained", i.e., when the decree sheet is prepared, and that Section 14 of the Limitation Act, 1963 applies to exclude the time spent in execution proceedings. Consequently, the suit was filed within the prescribed period and the appeal was allowed, restoring the lower courts' decree in favour of the plaintiff.
Issues considered
- The commencement date of the limitation period for a suit for possession under Article 2(b) of the Punjab Limitation (Custom) Act, 1920 – whether it is the date of the declaratory judgment, the donor's death, or the date the decree sheet is drawn.
- Whether Section 14 of the Limitation Act, 1963 applies to exclude the period spent pursuing execution proceedings, thereby extending the limitation period.
- Whether Section 5 of the 1920 Act and Section 29(2) of the 1963 Act permit the application of Section 14 despite the special law.
Legislation cited
- Limitation Act, 1908s. 4-25
- Limitation Act, 1963s. 14, s. 29(2)
- Punjab Limitation (Custom) Act, 1920s. 2(b) (Schedule), s. 5, s. 8
Subjects
limitation perioddeclaratory decreeancestral immovable propertycustom lawexecution petitionconditional decreeSection 14Punjab Limitation Act 1920suit for possessionstatutory interpretation
Judgment
[2018] 7 S.C.R. 1027 1027
MOHINDER SINGH (DEAD) THROUGH LRs. A
v.
PARAMJIT SINGH & ORS.
(Civil Appeal No. 10222 of 2017)
MARCH 28, 2018 B
[DIPAK MISRA, CJI AND A. M. KHANWILKAR, J.]
Punjab Limitation (Custom) Act, 1920 – Art.2(b) of the
Schedule and ss.5 and 8 – Limitation of suits relating to alienation
of ancestral immovable property – Gift Deed by one ‘U’ in favour C
of predecessor of the respondents in respect of the land in question
– Suit filed by original appellant for declaration that the gift deed
was void – Suit disposed of in terms of the compromise wherein the
original appellant was to be given the land in question after the
death of ‘U’ – Execution petitions filed by original appellant,
dismissed – Eventually, original appellant filed fresh suit for D
possession – Plea of respondents that the suit was barred by
limitation – Contested by appellants relying on the second part of
Art.2(b) of the 1920 Act as also s.14 of the 1963 Act – Held: Second
part of Art.2(b) postulates that the time from which limitation period
would commence to file a suit for possession would be the date on E
which the “declaratory decree is obtained”– In execution
proceedings, mere passing of the judgment by Court is not enough
but a decree has to be drawn on the basis of declaratory judgment
which is then put into execution – In the present case, even though
the declaratory judgment was pronounced in the previous suit on
20 th August,1963, on the basis of compromise entered, the F
declaration could be given effect to only after the death of ‘U’–
Decree being a conditional decree was enforceable only thereafter
– Decree sheet drawn on 19 th August, 1972 and the suit for
possession filed thereafter on 11th June, 1974, was thus, within the
prescribed period of limitation in terms of Art.2(b) of the Schedule G
of 1920 Act – Further, s.14 of the 1963 Act is also attracted in the
present case and the tests specified in s.14 are satisfied for showing
indulgence to the plaintiff to exclude the period during which the
plaintiff pursued execution proceedings for reckoning the period
of limitation for filing the suit for possession – Trial Court and
H
1027
1028 SUPREME COURT REPORTS [2018] 7 S.C.R.
A appellate court right in decreeing the suit in favour of the original
appellant by rejecting the objection regarding the suit being barred
by limitation – Limitation Act, 1963 – ss.14, 29(2) and Art.136 –
Limitation Act, 1908 – ss.4 to 25.
Words & Phrases – ‘Obtained’ – Meaning of, in the context
B of Punjab Limitation (Custom) Act, 1920 – Art.2(b) of the Schedule.
Allowing the appeal, the Court
HELD: 1.1 Punjab Limitation (Custom) Act, 1920 was
enacted to amend and consolidate the law governing the limitation
C of suits relating to alienations of ancestral immovable property
and appointments of heirs by persons who follow custom in the
area to which the Act would apply. Section 8 of the 1920 Act
postulates that when any person obtains a decree declaring that
an alienation of ancestral immovable property or appointment of
an heir is not binding on him according to custom, the decree
D shall enure for the benefit of all persons entitled to impeach the
alienation or the appointment of an heir. For such a declaratory
suit, the limitation is provided in the schedule. Article 2 of the
Schedule also envisages that the period of limitation for a suit for
possession of ancestral immovable property which has been
E alienated, on the ground that alienation is not binding on the
plaintiff according to custom, inter alia, within three years from
the date the declaratory decree is obtained. In the present case,
the declaratory decree was passed on 20th August, 1963 on the
basis of the compromise between the original appellant and the
predecessor of the respondents. However, that being a conditional
F decree, the right to sue for possession would not have accrued
until the death of ‘U’ which happened only on 14th January, 1971.
[Paras 13, 14] [1040-D-F; 1041-F, G]
1.2 The expression “declaratory decree is obtained” would
take within its fold the event of drawing of or preparation of the
G decree. Notably, the Trial Court as well as the Appellate Court
had accepted the stand taken by the plaintiff that the compromise
decree was prepared or drawn on 19 th August, 1972. Even
the High Court had not reversed that finding. [Para 15]
[1042-C]
H
MOHINDER SINGH (DEAD) THROUGH LRs. v. PARAMJIT 1029
SINGH & ORS.
1.3 The expression “obtain”, as understood in common A
parlance and defined in Concise Oxford English Dictionary, would
mean - “acquire, secure, have granted to one”. This may also
encompass obtaining a copy of the decree. In central legislation,
the expression is made explicit by providing “for obtaining a copy
of the decree”. The expression “obtained”, therefore, would pre-
B
suppose, in the context of reckoning limitation period for filing a
suit for possession, of securing a certified copy of the decree
(decree-sheet) on the basis of which, the suit for possession could
be instituted. In other words, the date on which the decree is
drawn would be the relevant date for commencement of limitation
period. As in the case of execution proceedings, mere passing of C
the judgment by the Court is not enough but a decree has to be
drawn on the basis of such declaratory judgment which is then
put into execution. Applying the same analogy, if a suit for
possession is founded on a declaratory decree it could proceed
only after a drawn up decree on the basis of a declaratory judgment
D
of the Civil Court is made ready and obtained by the decree-
holder. The expression “the declaratory decree is obtained”,
therefore, assumes significance. If the legislature intended to
provide it differently, it could have couched the provision as “the
date on which the declaratory judgment is passed”. The
legislature in enacting 1920 Act, however, consciously used the E
expression “the declaratory decree is obtained”, which
intrinsically includes the date on which a formal decree is drawn
or prepared and not merely the date on which a declaratory
judgment is passed by the Court. Taking any other view would
be rewriting the expression “the declaratory decree is obtained”
F
and doing violence to the legislative intent. Besides, the
expression “obtained” in Article 2(b) is prefixed by expression
“is”; and further it follows with expression “whichever is later”.
Even this would reinforce the position that the date on which the
declaratory decree is drawn could ignite the period of limitation
for instituting a suit for possession and not a mere declaratory G
judgment rendered by the Court in the previous suit (for
declaration simplicitor). Taking any other view will render the
last part of Article 2(b), providing for “whichever is later”
nugatory and otiose. [Paras 16, 17] [1042-F-G; 1043-A;
1043-B-E]
H
1030 SUPREME COURT REPORTS [2018] 7 S.C.R.
A 1.4 As in the present case, even though the declaratory
judgment was pronounced by the Court in the previous suit on
20th August, 1963, on the basis of compromise that declaration
could be given effect to only after the death of ‘U’. The decree
as passed was enforceable only thereafter. The decree sheet
having been made ready on 19th August, 1972 and the suit for
B
possession filed three years thereafter on 11 th June, 1974, was
thus within the prescribed period of limitation in terms of Article
2(b) of the Schedule to the 1920 Act. [Para 20] [1045-C, D]
1.5 The fact situation of the present case would certainly
satisfy the tests specified in Section 14 of the 1963 Act, for showing
C indulgence to the plaintiff to exclude the period during which the
plaintiff pursued execution proceedings for reckoning the period
of limitation for filing the suit for possession on 11th June, 1974.
The expanse of Section 14 of the Limitation Act,1963 is not limited
to mere jurisdictional issue but also other cause of a like nature.
D What is posited by Section 14 of the 1963 Act is the exclusion of
time of proceeding bona fide in Court without jurisdiction or other
cause of a like nature, for which the concerned Court is unable to
entertain the lis. [Paras 22, 23] [1047-F; 1048-A]
1.6 Section 5 of the 1920 Act is explicit and it unambiguously
E postulates that the suit referred to in the First Schedule to the
said Act would be governed by the provisions contained in
Sections 4 to 25 (inclusive) of the Limitation Act, 1908. Section
14 of the 1963 Act would be attracted in the fact situation of the
present case, in light of Section 5 of the 1920 Act and also Section
29(2) of the 1963 Act coupled with the fact that there is no express
F provision in the 1920 Act, to exclude the application of Section
14 of the 1963 Act. Trial Court and the Appellate Court were
right in decreeing the suit in favour of the predecessor of the
appellants by rejecting the objection regarding the suit being
barred by limitation. The High Court committed manifest error
G in overturning the decisions of the Trial Court and the First
Appellate Court. [Para 24, 26 and 28] [1048-C; 1049-A;
1049-D, E]
Lala Balmukund (Dead) Through LRs. v.. Lajwanti and
Ors. (1975) 1 SCC 725 : [1975] SCR 44 ; Consolidated
Engineering Enterprises v. Principal Secretary,
H
MOHINDER SINGH (DEAD) THROUGH LRs. v. PARAMJIT 1031
SINGH & ORS.
Irrigation Department and Ors. (2008) 7 SCC 169 : A
[2008] 5 SCR 1108 ; Union of India and Ors. v. West
Coast Paper Mills Ltd. and Anr. (2004) 3 SCC 458 :
[2004] 2 SCR 642 – relied on.
W.B. Essential Commodities Supply Corpn. v..Swadesh
Agro Farming & Storage Pvt. Ltd. and Anr. (1999) 8 B
SCC 315 : [1999] 2 Suppl. SCR 399 ; CST v. Parson
Tools and Plants (1975) 4 SCC 22 – referred to.
Case Law Reference
[1975] SCR 44 relied on Para 18
[1999] 2 Suppl. SCR 399 referred to Para 19 C
[2004] 2 SCR 642 relied on Para 21
(1975) 4 SCC 22 referred to Para 21
[2008] 5 SCR 1108 relied on Para 27
CIVIL APPELLATE JURISDICTION: Civil Appeal No.10222
of 2017. D
From the Order dated 25.04.2012 of the High Court of Punjab
and Haryana at Chandigarh in RSA No.1446 of 2012.
Mahabir Singh, Sr. Adv., Ms. Preeti Singh, Rakesh Dahiya, Gagan
Deep Sharma, Ms. Swati Jindal, Advs. for the Appellants. E
Manoj Swarup, Devvrat, Soheb Rahman, Advs. for the
Respondents.
The Judgment of the Court was delivered by
A. M. KHANWILKAR, J. 1. The singular question that
emerges for consideration in this appeal is: whether Section 14 of the F
Limitation Act, 1963 (for short “the 1963 Act”), has no impact in view of
the provisions contained in Punjab Limitation (Custom) Act, 1920 (for
short “the 1920 Act”) and, if so, will it be applicable in the facts of this
case?
2. The relevant undisputed facts of this case can be delineated as G
under:
A gift deed was executed by one Ujjagar Singh in respect of the
lands, which included two parcels of lands, measuring 7 Kanals 17 Marlas
H
1032 SUPREME COURT REPORTS [2018] 7 S.C.R.
A bearing Khasra No.46/16, situated in the revenue estate of Village Pandori,
Tehsil Batala; and 11 Kanals 4 Marlas bearing Khasra Nos.25/4/5, No.25/
4/1, 25/3/3 and 25/3/6 situated in the revenue estate of Village Ghuman,
Tehsil Batala, District Amritsar (Punjab), to one Rura Singh son of
Surendra Singh (predecessor of the respondents) vide Gift Deed dated
6th March, 1963. The said land was ancestral land in the hands of Ujjagar
B
Singh wherein Mohinder Singh (predecessor of the appellants) and others
were coparceners. Resultantly, the original appellant Mohinder Singh
filed a suit for declaration that the gift deed was void, being Suit No.367
of 1963 before the Sub Judge, First Class, Batala. During the pendency
of the said suit, a compromise was arrived at between Rura Singh
C (predecessor of the respondents) and Mohinder Singh (predecessor of
the appellants). The parties made statements before the Trial Court that
as per the compromise, Mohinder Singh was to be given the land
comprised in Khasara No.46/16 situated at Village Pandori, Tehsil Batala
and 26/4/2/4, 26/3/3 Min East, 26/4/1, 26/3/3 Min West of Village Ghuman
after the death of Ujjagar Singh out of the entire land and Mohinder
D
Singh also gave up his house. A statement was made by Rura Singh
before the Court which reads thus:
“Stated that decree for declaration for ownership regarding Khasra
no. 46/16 situated at Pandori, No.26/4/2/4, 26/3/3 Min. East. 26/
4/1, 26/3/3 Min West situated at Ghuman be passed in favour of
E the plaintiff. Remaining suit be dismissed. Parties shall bear their
own expenses.”
3. On the basis of the said arrangement, the Court disposed of the
suit on 20th August, 1963 on the basis of compromise in the following
terms:
F
“In view of the above statements of the parties, the suit as prayed
for is decreed herewith solely in respect of khasra number 46/16
of village Pandori and 26/4/2/4, 26/3/3 Min east, 26/4/1, 26/3/3
Min west of village Ghuman against the defendant no.2. The suit
against defendant No.1 will stand dismissed. The parties will
G bear their own costs.”
4. Mohinder Singh then took out execution petition No.430 of 1964
rd
on 23 December, 1964. The said execution petition was dismissed being
premature, by the Executing Court vide order dated 7th August, 1965
which reads thus:
H
MOHINDER SINGH (DEAD) THROUGH LRs. v. PARAMJIT 1033
SINGH & ORS. [A.M. KHANWILKAR, J.]
“COPY OF ORDER: As per decision of D.H. counsel the A
execution is dismissed as pre-mature and be consigned record-
room on the Satisfied.”
5. The said Ujjagar Singh died on 14th January, 1971, whereafter
Mohinder Singh took out second execution petition on 18th February,
1971. He also took out an application for summoning the original file B
with the decree sheet. This application was filed on 23rd August, 1971
before the Executing Court. It then transpired that the decree was
prepared and the decree sheet was drawn on 19th August, 1972. However,
the execution petition instituted by Mohinder Singh came to be dismissed
for default on 2nd February, 1973. On the same day, Mohinder Singh
took out third execution petition which was dismissed on 2nd February, C
1974 on the ground that the same was not maintainable. The relevant
portion of the order passed by the Executing Court in Execution
Application No.11/1973 reads thus:
“3. The following issue was framed:-
D
1) Whether the decree is executable? O.P.D.H.
4. From the perusal of the decree sheet copy of which is Ex.
D.H.1. it is abundantly clear that the decree which is sought to be
executed is a declaratory one and it ensure to the benefit of the
decree holder after the death of the vendor. The decree-holder E
can only file a separate suit if so advised for possession of
the suit property but the execution is not maintainable. The
declaratory decree cannot be executed and the possession
of the land in question cannot be granted to the decree
holder in execution of the same. This issue is decided against
the decree-holder. F
In view of my above said finding the application is dismissed.
File be consigned to the Record Room.”
(emphasis supplied)
6. Taking cue from the observations in this order and left with no
G
other option for getting possession of the land referred to in the decree
passed in suit No.367 of 1963, Mohinder Singh filed a fresh suit on 11 th
June, 1974, in the Court of Civil Judge, Junior Division, Batala, being
C.S. No.173/1974. He asserted that the declaratory decree was prepared
on 19th August, 1972 and because of the order passed by the Executing
H
1034 SUPREME COURT REPORTS [2018] 7 S.C.R.
A Court on 2nd February, 1974, he had to file the suit for possession on the
basis of the cause of action which had arisen on 19th August, 1972 and
because of the refusal of the respondents (defendants) to deliver the
suit lands to him. The respondents filed written statement in which they
admitted the fact that the decree was prepared on 19th August, 1972, but
asserted that the present suit was barred by limitation as the same was
B
filed after lapse of 3 years from the date of death of Ujjagar Singh. In
that, Ujjagar Singh died on 14th January, 1971 whereas the suit has been
filed on 11th June, 1974. Further, the factum of preparation of decree on
19th August, 1972 would be of no avail as the decree had been passed in
the previous suit on 20th August, 1963. The date on which the previous
C suit was decided would be the relevant date. However, subsequently the
respondents (defendants) filed additional written statements so as to
withdraw the admission made earlier that the decree sheet was prepared
on 19th August, 1972.
7. The Civil Judge, Junior Division, Batala vide his judgment dated
D 20th May, 2008 negatived the objection taken by the respondents regarding
the suit being barred by limitation. The relevant portion of the judgment
of the Trial Court reads thus:
“13. Article 2(b) of the Punjab Limitation (Customs) Act 1920
provides the period of limitation of three years for a suit for
E possession of an ancestral immovable property which has been
alienated, on the ground that alienation is not binding on the plaintiff
according to custom where such declaratory decree is obtained.
The time from which period of limitation is to begin is the date on
which right to sue accrues or the date on which declaratory decree
is obtained whichever is later. It is the case of the defendants
F that Ujjagar Singh died on 14.01.1971 the entry of the death of
Ujjagar Singh is also placed on the record as Ex.D1 and the period
of limitation is to be computed from 14.01.1971, when the right to
sue accrues to the plaintiff on the death of Ujjagar Singh and the
present suit is not within the period of three years as the suit has
G been filed on 11.06.1974. However the article 2(b) of the
Punjab Limitation (Customs) Act 1920, provides that period
of three years for the institution of the suit is to be
ascertained from the date on which right to sue accrues or
the date on which declaratory decree is obtained whichever
H
MOHINDER SINGH (DEAD) THROUGH LRs. v. PARAMJIT 1035
SINGH & ORS. [A.M. KHANWILKAR, J.]
is later. It is claimed by the plaintiff that decree sheet was A
prepared on 19.08.1972, the fact which is admitted by the
defendants while filing the original written statement.
However, it is argued by counsel for the defendants that order in
the execution application No. 32 of 1971, dated 19.8.1972 on which
the decree is alleged to have been prepared by the plaintiff is in
B
fact with regard to the dismissal of the said execution application
due to the non appearance of the parties. I am of the considered
opinion that only on the ground that said order dated
19.08.1972 relates with the dismissal of the execution it
cannot be said that decree sheet was not prepared during
the proceedings of the said execution. It has already been C
held that the decree sheet was prepared during the
execution bearing No. 32 of 1971. Even if it is considered
that the decree sheet was prepared on dated 29.07.1972
and not on 19.08.1972 as discussed above even then the
present suit is within the period of limitation i.e. 3 years as
D
per article 2(b) of the Punjab Limitation (Customs) Act 1920.
14. It is also argued by counsel for the defendants that while filing
the replication inconsistent pleas taken by the plaintiff from the
plaint already fled by him and the replication filed by the plaintiff
can be taken into consideration. In support of his contention,
counsel for the defendants has relied upon 2001 (3) Civil Court E
Cases 565 (Rajasthan) Gurjant Singh Versus Krishan Chander
and Ors. But I am of the considered view that in fact the defendants
themselves have taken the inconsistent pleas by filing the amended
written statement from the original written statement. In the
amended written statement it is claimed by the defendants that no F
decree sheet was prepared on 19.08.1972 and the decree sheet
of Civil suit No. 367 of 14.06.1963 has been passed on 20.8.1963
itself. The plaintiff has only contested the pleadings of the
amended written statement by filing the replication and accordingly
it cannot be said that the plaintiff has taken the inconsistent pleas
from the pleas already taken by him in his plaint, while filing the G
replication.
15. In view of discussion above, this issue No. 1 is decided in
favour of the plaintiff. The suit of the plaintiff is also held within
H
1036 SUPREME COURT REPORTS [2018] 7 S.C.R.
A the period of limitation and issue No.2 is also decided in favour of
the plaintiff and against the defendants.”
(emphasis supplied)
8. Aggrieved, the respondents (defendants) filed a first appeal
before the District Court being Civil Appeal No.373 of 2008 (12th June,
B 2008) which was heard by the Additional District Judge, Gurdaspur and
was finally dismissed on 2nd February, 2012. The District Court rejected
the argument of the respondents on the issue of suit being barred by
limitation, by observing thus:
“…But learned counsel for the appellants has contended that
C decree sheet may be prepared at any time but it relates back to
the date of judgment. Though it is a settled proposition of law that
decree follows the judgment, but in the instant case there is no
fault on behalf of respondent no.1 who has able to prove on record
that when he filed the suit while challenging the gift deed which
was decided on the basis of the compromise and statements of
D
the parties on 20.08.1963 and thereafter he filed an application
for execution of the same in which objections were raised by
Rura through counsel and execution was dismissed being
premature and after the death of Ujjagar Singh in the year 1971
he again moved an execution applicable in which the fresh decree
E sheet was ordered to be prepared which was ultimately prepared
in the presence of the parties and during those proceedings no
copy of the decree sheet which has now been referred by learned
counsel for the appellants has placed on file nor any such objection
has been raised that decree sheet has already been prepared and
more so, the decree sheet was ordered to be prepared in presence
F
of both the parties. Later on execution was dismissed on filing of
objections by appellants by learned Sub Judge 1st Class, Batala
with the observation that it enures to the benefit of the decree
holder after the death of the vendor and same was ultimately
ordered to be dismissed on 02.02.1974 and if one computed the
G period of limitation from the day of preparation of decree i.e. in
the year 1972 because the day when the execution application
has been dismissed by Court of Shri A.S. Rampal, the then Sub
Judge 1st Class, Batala, by observing then the suit of respondent
no.1 is certainly within limitation.”
H
MOHINDER SINGH (DEAD) THROUGH LRs. v. PARAMJIT 1037
SINGH & ORS. [A.M. KHANWILKAR, J.]
9. The respondents then preferred a second appeal before the A
High Court of Punjab and Haryana at Chandigarh, being Regular Second
Appeal No.166 of 2012 (O&M), which has been allowed by the learned
Single Judge of the High Court, vide judgment dated 25th April, 2012.
The High Court accepted the argument of the respondents in the following
words:
B
“I have carefully considered the aforesaid contentions. It is
undisputed that the earlier suit was decided on the basis of
compromise vide judgment dated 20.08.1963. From the judgments
of the courts below, it appears that formal decree in the said suit
was not drawn immediately but was drawn on 19.08.1972 when
plaintiff moved for the same because while seeking execution of C
the said decree, the plaintiff learnt that formal decree had not
been drawn. However, formal decree drawn on 19.08.1972
on the basis of compromise judgment dated 20.08.1963
shall relate back to the date of judgment i.e. 20.8.1963.
Merely because formal decree was drawn on 19.08.1972, it D
cannot be said that limitation period started on 19.08.1972.
On the contrary, earlier declaratory decree was passed vide
judgment dated 20.08.1963 and therefore, limitation period
in the instant case commenced on 14.01.1971 on the death
of Ujjagar Singh. Consequently, suit filed on 11.06.1974
i.e. after expiry of limitation period of three years is patently E
barred by limitation. Finding of the courts below to the
contrary is patently perverse and illegal and, therefore,
unsustainable.
Substantial question of law arises for determination in this second
appeal as to whether suit is barred by limitation and finding of the F
courts below holding the suit to be within the limitation is perverse
and illegal. The said substantial question of law is answered in
favour of defendants/appellants holding that the suit is barred by
limitation.
Resultantly the instant second appeal is allowed. Judgments and G
decrees of both the courts below are set aside. Suit filed by the
respondent No.1-plaintiff stands dismissed. The parties are,
however, left to suffer their respective costs throughout.”
(emphasis supplied)
H
1038 SUPREME COURT REPORTS [2018] 7 S.C.R.
A 10. In this backdrop, the present appeal, by special leave, has
been filed by the original plaintiff Mohinder Singh who died during the
pendency of the appeal before this Court and consequently, his heirs and
legal representatives have been brought on record to espouse the cause.
According to the appellants, the suit for possession was filed by Mohinder
Singh on the basis of the declaratory decree which was within the
B
limitation period of three years as provided by Article 2(b) of the Schedule
to the 1920 Act. Inasmuch as, Section 2(b) of the said Act stipulates that
the limitation would commence from the date on which the right to sue
accrues or the date on which the declaratory decree is obtained,
whichever is later. In the present case, the right to sue accrued after the
C death of Ujjagar Singh on 14th January, 1971. However, the plaintiff was
advised to pursue execution of the decree passed in the previous Suit
No.367 of 1963 and was driven to file the present suit on 11 th June, 1974
after the order was passed by the Executing Court on 2nd February,
1974. Nevertheless, as the decree sheet was prepared only on 19th
August, 1972, the suit filed on 11th June, 1974 was within limitation in
D
terms of Article 2(b) of the 1920 Act. To buttress this submission reliance
has been placed on the decision in Lala Balmukund (Dead) Through
L.Rs. Vs. Lajwanti and Ors.1, wherein it has been held that “obtaining”
the copy means drawing of a decree. That happened in this case on 19th
August, 1972 and for which reason the suit filed on 11th June, 1974 was
E within limitation. Reliance has been placed on the contemporaneous
record, including written statement and the appeal memo filed before
the First Appellate Court by the respondents (defendants), admitting
preparation of decree on 19th August, 1972. Reliance is also placed on
Section 14 of the 1963 Act for exclusion of time during which Mohinder
Singh (plaintiff) had bona fide pursued the execution proceedings. It is
F
submitted that Section 14 of the 1963 Act will be attracted not only
because of Section 29(2) of the 1963 Act, but also because of Section 5
of the 1920 Act expressly providing for application of Sections 4 to 25 of
the 1963 Act. Reliance is placed on a three-Judge Bench decision of this
Court in Consolidated Engineering Enterprises Vs. Principal
G Secretary, Irrigation Department and Ors.,2 which has enunciated
that a liberal approach should be adopted by the Court, unless the
application of Section 14 is expressly excluded by the special law. It is
contended that although the first execution petition moved by the plaintiff
1
(1975) 1 SCC 725
2
H (2008) 7 SCC 169
MOHINDER SINGH (DEAD) THROUGH LRs. v. PARAMJIT 1039
SINGH & ORS. [A.M. KHANWILKAR, J.]
was dismissed as premature as also the subsequent execution petition A
was dismissed on 2nd February, 1974 on the ground that the proper remedy
was to file a suit for possession, the defendants neither raised any objection
nor challenged the said orders. On the other hand, the plaintiff acted
upon the said orders and eventually filed a suit for possession on 11th
June, 1974. Relying on the decision of this Court in Union of India and
B
Ors. Vs. West Coast Paper Mills Ltd. and Anr.3, it is submitted that
the conclusion reached by the Trial Court and commended to the First
Appellate Court, is the correct approach in the fact situation of the present
case. Taking any other view would be awarding bonus to the respondents
despite Rura Singh (predecessor of respondents) having agreed for giving
possession of the subject properties to Mohinder Singh (predecessor of C
the appellants) vide compromise decree dated 20th August, 1963.
11. The respondents, on the other hand, submitted that the High
Court has justly reversed the concurrent judgment of two Courts on the
issue of suit being barred by limitation after having found that the decree
drawn on 19th August, 1972 on the basis of the compromise judgment D
dated 19th August, 1963 must relate back to the date of the judgment i.e.
19th August, 1963. Thus, mere preparation or drawing of a formal decree
on 19th August, 1972 would be of no avail to the appellants as the limitation
in the present case had commenced consequent to the death of Ujjagar
Singh on 14th January, 1971 but the suit was filed on 11th June, 1974 after E
the expiry of 3 years’ limitation period. It is submitted that the parties
are governed by the provisions of Article 2(b) of the Schedule to the
1920 Act and the plaintiff failed to exercise due diligence for which
reason cannot take advantage in calculating the limitation period from
19th August, 1972. It is contended that Section 14 of the 1963 Act was
limited to accord protection to a litigant against the bar of limitation when F
he institutes civil proceeding, which by reason of some technical defects
cannot be decided on merits and is dismissed. To buttress this submission,
reliance has been placed on paragraphs 21, 22 and 31 in particular, of
the decision in the case of Consolidated Engineering Enterprises
(supra). According to the respondents, the subject suit was barred by G
limitation as it was not instituted within the limitation period specified in
Article 2(b) of the Schedule to the 1920 Act and provisions of Section 14
will be of no avail to the plaintiff. Furthermore, no explanation or
justification whatsoever has been offered by the plaintiff for the period
3
(2004) 3 SCC 458 H
1040 SUPREME COURT REPORTS [2018] 7 S.C.R.
A between 2nd February, 1974 (when the third execution petition was
dismissed) and 11th June, 1974 (when the suit for possession was filed
by the plaintiff). The question of showing any indulgence, much less by
invoking Section 14 of the 1963 Act, does not arise. The respondents
pray for dismissal of this appeal and affirmation of the view taken by the
High Court whilst allowing the second appeal filed by them.
B
12. We have heard Mr. Mahabir Singh, learned senior counsel
appearing for the appellants and Mr. Manoj Swarup, learned counsel
appearing for the respondents.
C 13. There is no dispute that the issue of suit being barred by limitation
will have to be answered with reference to the special law as applicable
i.e. the 1920 Act. The said Act was enacted to amend and consolidate
the law governing the limitation of suits relating to alienations of ancestral
immovable property and appointments of heirs by persons who follow
custom in the area to which the Act would apply. Section 8 of the 1920
D Act postulates that when any person obtains a decree declaring that an
alienation of ancestral immovable property or appointment of an heir is
not binding on him according to custom, the decree shall enure for the
benefit of all persons entitled to impeach the alienation or the appointment
of an heir. For such a declaratory suit, the limitation is provided in the
E schedule. Article 2 of the Schedule also envisages that the period of
limitation for a suit for possession of ancestral immovable property which
has been alienated, on the ground that alienation is not binding on the
plaintiff according to custom, inter alia, within three years from the
date the declaratory decree is obtained. Section 8 of the 1920 Act reads
thus:
F
“8. Benefit of declaratory decree.- When any person obtains
a decree declaring that an alienation of ancestral immoveable
property or the appointment of an heir is not binding on him
according to custom, the decree shall enure for the benefit of all
persons entitled to impeach the alienation or the appointment of
G an heir.”
Article 2 of the Schedule reads thus:
H
MOHINDER SINGH (DEAD) THROUGH LRs. v. PARAMJIT 1041
SINGH & ORS. [A.M. KHANWILKAR, J.]
A
SCHEDULE
Description of suit P eriod of Time from
Limitation which period
begins to run
1. xxx
B
2. A suit for possession of
ancestral immovable property
which has been alienated on
the ground that the alienation
is not binding on the plaintiff
according to custom-
C
(a) If no declarat ory 6 Years As above
decree of the nature
referred to in Article 1
is obtained
(b) If such decl aratory 3 years The date on which the
decree is obtained right t o sue accrues or
t he date on which the D
declaratory decree is
obt ained, whichever is
l ater.
3. xxx xxx xxx
4. xxx xxx xxx E
5. xxx xxx xxx
6. xxx xxx xxx
14. In the present case, the declaratory decree has been passed F
th
on 20 August, 1963 on the basis of the compromise between the plaintiff
- Mohinder Singh (predecessor of the appellants) and defendant - Rura
Singh (predecessor of the respondents). However, that being a conditional
decree, the right to sue for possession would not have accrued until the
death of Ujjagar Singh which happened only on 14th January, 1971. The
appellants are not invoking the first part of Article 2(b), which postulates G
that the time from which period commences would be the date on which
the right to sue accrues. First, because declaratory decree was passed
on 20.8.1963; second, because it was a conditional decree and was
unenforceable during the life time of Ujjagar Singh; third, because Ujjagar
H
1042 SUPREME COURT REPORTS [2018] 7 S.C.R.
A Singh died on 14th January, 1971 but the fresh suit was filed on 11th June,
1974 due to the observation made by the Executing Court in its order
dated 2nd February, 1974. Resultantly, the appellants are relying on the
second part of Article 2(b), which postulates that the time from which
period would commence to file a suit for possession would be the date
on which the “declaratory decree is obtained”.
B
15. The substratum of the claim of the plaintiff is founded on the
factum of date on which the decree sheet in respect of the compromise
decree was prepared and drawn on 19th August, 1972. The expression
“declaratory decree is obtained” would take within its fold the event of
drawing of or preparation of the decree. Notably, the Trial Court as well
C as the Appellate Court has accepted the stand taken by the plaintiff that
the compromise decree was prepared or drawn on 19th August, 1972.
Even the High Court has not reversed that finding. The High Court,
however, has held that drawing of a formal decree on 19th August, 1972
will be of no avail as it would relate back to the compromise decree
D passed on 20th August, 1963. That would not save the limitation period
for filing the suit for possession. Whereas, the cause of action for filing
such suit had arisen on 14th January, 1971 on the death of Ujjagar Singh
but the suit was filed after the expiry of limitation period of three years
on 11th June, 1974.
E 16. In this backdrop, the moot question in the present case is the
meaning of the expression “the declaratory decree is obtained”. Does it
mean the date of pronouncement of the judgment i.e. 20th August, 1963
or the date of preparation of decree sheet i.e. 19th August, 1972? The
expression “obtain”, as understood in common parlance and defined in
Concise Oxford English Dictionary, would mean - “acquire, secure, have
F granted to one”. This may also encompass obtaining a copy of the decree.
In central legislation, the expression is made explicit by providing “for
obtaining a copy of the decree”, as was considered in Lala Balmukund
(supra). The expression “obtained”, therefore, would pre-suppose, in
the context of reckoning limitation period for filing a suit for possession,
G of securing a certified copy of the decree (decree-sheet) on the basis of
which, the suit for possession could be instituted. In other words, the
date on which the decree is drawn would be the relevant date for
commencement of limitation period. As in the case of execution
proceedings, mere passing of the judgment by the Court is not enough
H
MOHINDER SINGH (DEAD) THROUGH LRs. v. PARAMJIT 1043
SINGH & ORS. [A.M. KHANWILKAR, J.]
but a decree has to be drawn on the basis of such declaratory judgment A
which is then put into execution. Applying the same analogy, if a suit for
possession is founded on a declaratory decree it could proceed only
after a drawn up decree on the basis of a declaratory judgment of the
Civil Court is made ready and obtained by the decree-holder.
17. The expression “the declaratory decree is obtained”, therefore, B
assumes significance. If the legislature intended to provide it differently,
it could have couched the provision as “the date on which the declaratory
judgment is passed”. The legislature in enacting 1920 Act, however,
consciously used the expression “the declaratory decree is obtained”,
which intrinsically includes the date on which a formal decree is drawn
or prepared and not merely the date on which a declaratory judgment is C
passed by the Court. Taking any other view would be rewriting the
expression “the declaratory decree is obtained” and doing violence to
the legislative intent. Besides, the expression “obtained” in Article 2(b)
is prefixed by expression “is”; and further it follows with expression
“whichever is later”. Even this would reinforce the position that the date D
on which the declaratory decree is drawn could ignite the period of
limitation for instituting a suit for possession and not a mere declaratory
judgment rendered by the Court in the previous suit (for declaration
simplicitor). Taking any other view will render the last part of Article
2(b), providing for “whichever is later” nugatory and otiose.
E
18. The appellants have justly relied on the exposition in the case
of Lala Balmukund (supra), (in particular paragraphs 20 and 21), which
has answered similar issue regarding the date of obtaining decree and
while explicating the term “obtaining a copy”, has held that the time will
start only after the decree is drawn. It is apposite to reproduce the dictum
in paragraph 19, which reads thus: F
“19. We do not wish to encumber this judgment with a detailed
discussion of all the citations and the reasoning advanced therein
in support of one or the other view. It will be sufficient to say that
upon the language of Section 12(2) both the constructions are
possible, but the one adopted by the majority of the courts, appears G
to be more consistent with justice and good sense. The Limitation
Act deprives or restricts the right of an aggrieved person
to have recourse to legal remedy, and where its language
H
1044 SUPREME COURT REPORTS [2018] 7 S.C.R.
A is ambiguous, that construction should be preferred which
preserves such remedy to the one which bars or defeats it.
A court ought to avoid an interpretation upon a statute of
limitation by implication or inference as may have a
penalising effect unless it is driven to do so by the
irresistible force of the language employed by the
B
Legislature.”
(emphasis supplied)
19. It may be useful to advert to the elucidation in W.B. Essential
Commodities Supply Corpn. Vs. Swadesh Agro Farming & Storage
C Pvt. Ltd. and Anr.4. Indeed, in that case the factual narrative on which
the question was examined was somewhat different, namely, whether
the period of limitation under Article 136 of the 1963 Act will start from
the date of the decree or from the date when the decree is actually
drawn up and signed by the Judge, as articulated in paragraph 2 of the
judgment. In paragraph 12 of the judgment this Court observed thus:
D
“12. 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
E it shall not be executed till the standing crop is harvested,
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 no extraneous event is to happen on the fulfillment
F 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 (Yeshwant Deorao v. Walchand
Ramchand5). 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
G 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-
4
(1999) 8 SCC 315
H 5
AIR 1951 SC 16
MOHINDER SINGH (DEAD) THROUGH LRs. v. PARAMJIT 1045
SINGH & ORS. [A.M. KHANWILKAR, J.]
judicial stamp paper supplied by the parties within the time A
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 v. Chandrakant
Shankar Lokhande 6 have to be understood. These
observations do not apply to a money decree and, therefore,
B
appellant can derive no benefit from them.”
(emphasis supplied)
20. As in the present case, even though the declaratory judgment
was pronounced by the Court in the previous suit on 20th August, 1963,
on the basis of compromise entered into by Mohinder Singh (original
plaintiff) and Rura Singh (original defendant), that declaration could be C
given effect to only after the death of Ujjagar Singh. The decree as
passed was enforceable only thereafter. Suffice it to observe that the
decree sheet having been made ready on 19th August, 1972 and the suit
for possession filed three years thereafter on 11th June, 1974, was thus
within the prescribed period of limitation in terms of Article 2(b) of the D
Schedule to the 1920 Act.
21. Assuming for the sake of argument that the three years’ period
provided in Article 2(b) ought to be reckoned from the date of death of
Ujjagar Singh i.e. 14th January, 1971, the question would be whether the
provisions of Section 14 of the 1963 Act would come to the aid of the E
plaintiff (appellants). The purport of Section 14 of the 1963 Act has
been delineated in the case of Union of India and Ors. Vs. West Coast
Paper Mills Ltd. (supra). The Court while considering the question as
to whether the suit was barred by limitation examined the question whether
Section 14 of the 1963 Act was applicable to that case. In paragraph 14
of the judgment, after referring to the decision in CST Vs. Parson Tools F
and Plants 7, this Court observed thus:
“14. In the submission of Mr. Malhotra, placing reliance on CST
v. Parson Tools and Plants8, to attract the applicability of Section
14 of the Limitation Act, the following requirements must be
specified: (SCC p.25, para 6) G
‘6. (1) both the prior and subsequent proceedings are civil
proceedings prosecuted by the same party;
6
(1995) 3 SCC 413
7
(1975) 4 SCC 22
8
(1975) 4 SCC 22 : 1975 SCC (Tax) 185 H
1046 SUPREME COURT REPORTS [2018] 7 S.C.R.
A (2) the prior proceedings had been prosecuted with due diligence
and in good faith;
(3) the failure of the prior proceedings was due to a defect of
jurisdiction or other case of a like nature;
(4) both the proceedings are proceedings in a Court.’
B
In the submission of the learned Senior Counsel, filing of civil writ
petition claiming money relief cannot be said to be a proceeding
instituted in good faith and secondly, dismissal of writ petition on
the ground that it was not an appropriate remedy for seeking money
relief cannot be said to be ‘defect of jurisdiction or other cause of
C a like nature’ within the meaning of Section 14 of the Limitation
Act. It is true that the writ petition was not dismissed by the High
Court on the ground of defect of jurisdiction. However, Section
14 of the Limitation Act is wide in its application, inasmuch
as it is not confined in its applicability only to cases of defect
D of jurisdiction but it is applicable also to cases where the
prior proceedings have failed on account of other causes of
like nature. The expression ‘other cause of like nature’
came up for the consideration of this Court in Roshanlal
Kuthalia v. R.B. Mohan Singh Oberai9 and it was held that
Section 14 of the Limitation Act is wide enough to cover
E such cases where the defects are not merely jurisdictional
strictly so called but others more or less neighbours to such
deficiencies. Any circumstances, legal or factual, which
inhibits entertainment or consideration by the Court of the
dispute on the merits comes within the scope of the Section
F and a liberal touch must inform the interpretation of the
Limitation Act which deprives the remedy of one who has a
right.”
(emphasis supplied)
22. The expanse of Section 14 of the Act, therefore, is not limited
G to mere jurisdictional issue but also other cause of a like nature. Taking
cue from this decision, the appellant would contend that the plaintiff
immediately after compromise judgment was pronounced on 20th August,
1963 took recourse to Execution Petition No.433/1964 on 23rd December,
1964 but the same was dismissed by the Executing Court on 7th August,
9
H (1975) 4 SCC 628
MOHINDER SINGH (DEAD) THROUGH LRs. v. PARAMJIT 1047
SINGH & ORS. [A.M. KHANWILKAR, J.]
1965, as being premature. The plaintiff verily believed that the execution A
of the decree passed in the previous suit would result in getting possession
of the property albeit after the death of Ujjagar Singh. Consequently,
after the death of Ujjagar Singh on 14th January, 1971, the plaintiff moved
second execution petition on 18th February, 1971 and in those proceedings
moved an application for summoning the file with a decree sheet. It
B
transpired that the decree was drawn and the decree sheet was made
ready on 19th August, 1972, but the said execution petition stood dismissed
for default on 2nd February, 1973. For that reason, the appellant on the
same day moved the third execution petition i.e. on 2nd February, 1973
which, however, was dismissed on 2nd February, 1974 on the ground that
the remedy for the plaintiff to get possession of the suit property was to C
file a suit for possession on the basis of the declaratory decree. It is only
thereafter the plaintiff resorted to the subject suit, being Civil Suit No.173/
1974 filed on 11th June, 1974.
23. Notably, the respondents did not question the decisions of the
Executing Court – be it on the ground that it was premature or on the D
ground that the remedy for the plaintiff was to file a suit for possession.
Indubitably, the proceedings such as execution petition resorted to by
the plaintiff would be a civil proceeding. Further, the Trial Court as well
as the Appellate Court have found that the plaintiff was pursuing that
remedy in good faith. That finding has not been disturbed by the High
Court. The reasons which weighed with the Executing Court for E
dismissing the execution petitions were just causes covered by the
expression “defect of jurisdiction” and in any case, “other cause of a
like nature”, ascribed by the Executing Court for its inability to grant
relief of possession of suit property to the plaintiff. The fact situation of
the present case would certainly satisfy the tests specified in Section 14 F
of the 1963 Act, for showing indulgence to the plaintiff to exclude the
period during which the plaintiff pursued execution proceedings for
reckoning the period of limitation for filing the suit for possession on 11th
June, 1974. The argument of the respondents that the plaintiff did not
offer any explanation for the period from 2nd February, 1974 till 11th
June, 1974 does not impress us at all. That period is only of four months G
and once the period from 14th January, 1971 till 2nd February, 1974 was
to be excluded as being time spent by the plaintiff in pursuing other civil
proceedings in good faith, there would be no delay in filing of the suit.
H
1048 SUPREME COURT REPORTS [2018] 7 S.C.R.
A What is posited by Section 14 of the 1963 Act is the exclusion of time of
proceeding bona fide in Court without jurisdiction or other cause of a
like nature, for which the concerned Court is unable to entertain the lis.
The fact that no explanation whatsoever has been offered for the period
from 2nd February, 1974 to 11th June, 1974, therefore, would not whittle
down the rights of the plaintiff to institute and pursue suit for possession
B
of the subject land on the basis of declaratory decree.
24. That takes us to the last question as to whether Section 14 of
the 1963 Act has any application to the case on hand. This issue need
not detain us. Section 5 of the 1920 Act is explicit and it unambiguously
postulates that the suit referred to in the First Schedule to the said Act
C would be governed by the provisions contained in Sections 4 to 25
(inclusive) of the Limitation Act. Section 5 of the 1920 Act reads thus:
“5. Dismissal of suits of the descriptions specified in the
Act if instituted after the period of limitation therein
prescribed has expired.- Subject to the provision contained in
D sections 4 to 25 (inclusive), of the Indian Limitation Act, 1908,
and notwithstanding anything to the contrary contained in the first
schedule of the said Act, every suit, of any description specified
in the schedule annexed to this Act, instituted after the period of
limitation prescribed therefor in the schedule shall be dismissed,
E although limitation has not been set up as a defence.”
25. It may be apposite to also advert to Section 29(2) of the 1963
Act, the same reads thus:
“29. Savings.- (1) xxx
F (2) Where any special or local law prescribes for any suit, appeal
or application a period of limitation different from the period
prescribed by the Schedule, the provisions of section 3 shall apply
as if such period were the period prescribed by the Schedule and
for the purpose of determining any period of limitation prescribed
for any suit, appeal or application by any special or local law, the
G provisions contained in sections 4 to 24 (inclusive) shall apply only
in so far as, and to the extent to which, they are not expressly
excluded by such special or local law.
(3) xxx
(4) xxx.”
H
MOHINDER SINGH (DEAD) THROUGH LRs. v. PARAMJIT 1049
SINGH & ORS. [A.M. KHANWILKAR, J.]
26. We find force in the submission of the appellants that Section A
14 of the 1963 Act would be attracted in the fact situation of the present
case, in light of Section 5 of the 1920 Act and also Section 29(2) of the
1963 Act coupled with the fact that there is no express provision in the
1920 Act, to exclude the application of Section 14 of the 1963 Act.
27. Both sides have relied on the exposition in the case of B
Consolidated Engineering Enterprises (supra). In that case, the Court
noted that Section 14 of the 1963 Act envisages that it is a provision to
afford protection to a litigant against bar of limitation when he institutes
a proceeding which by reason of some technical defects cannot be
decided on merits and is dismissed. While considering the provisions of
Section 16 and its application, this Court observed that a proper approach C
will have to be adopted and the provisions will have to be interpreted so
as to advance cause of action rather than abort the proceedings, inasmuch
as the section is intended to provide relief against bar of limitation in
cases of mistaken remedy or selection of a wrong forum.
28. It is not necessary to dilate on this judgment any further, having D
already observed that both the Trial Court and the Appellate Court were
right in decreeing the suit in favour of the original plaintiff (predecessor
of the appellants) by rejecting the objection regarding the suit being barred
by limitation. The High Court committed manifest error in overturning
the decisions of the Trial Court and the First Appellate Court, merely on E
the ground that the formal decree drawn on 19th August, 1972 on the
basis of compromise judgment dated 20th August, 1963 must relate back
to the date of the judgment i.e. 20th August, 1963 and would not arrest
the limitation period until the preparation of the decree on 19th August,
1972.
F
29. In view of the above, we allow this appeal and set aside the
impugned judgment and order and decree passed by the High Court and
instead, restore the judgment and decree passed by the Trial Court as
affirmed by the First Appellate Court.
30. Accordingly, this appeal is allowed with no order as to costs. G
Divya Pandey Appeal allowed.
H
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