Holding

The limitation period for execution of a decree begins when the decree becomes enforceable, and the execution application filed on 5 April 1991 was time‑barred.

Summary

The appellants, judgment debtors, sought to set aside an ex parte decree dated 3 May 1976 and later faced an execution application filed by the decree holders on 5 April 1991. The executing court held that the 12‑year limitation period under Article 136 of the Limitation Act began from the dismissal of a civil revision on 6 April 1987, thereby deeming the execution application timely. The appellants contended that the limitation period should start when the decree became enforceable, i.e., from the date of the decree, making the execution application time‑barred. The Supreme Court examined the commencement of the limitation period for execution of a decree and held that it begins when the decree becomes enforceable, not from the dismissal of a revision. Consequently, the execution application filed in 1991 was beyond the 12‑year period and was rejected. The appeal was allowed, setting aside the orders of the High Court and the executing court.

Issues considered

When does the limitation period for execution of a decree under Article 136 of the Limitation Act, 1963 commence?
Whether the execution application filed on 5 April 1991 is time‑barred.

Legislation cited

Code of Civil Procedure, 1908s. Order IX Rule 13, s. Order XX Rule 22, s. Order XX Rule 58, s. Order XX Rule 7, s. Section 115, s. Section 47
Limitation Act, 1963s. Article 136

Subjects

Limitation periodExecution of decreeArticle 136Ex parte decreeCivil revisionCode of Civil ProcedureTime‑barredImmovable property

Judgment

A RAM BACHAN RA! AND ORS.
v.
..,
RAM UDAI RA! AND ORS.

MAY 5, 2006.

B [ARIJIT PASA YAT AND TARUN CHATTERJEE, JJ.]

Code of Civil Procedure, 1908: O.JX Rule 13, O.XY R. 7. O.X¥1 R.. 22
and Rule 58; Ss. 47, I I 5/Limitation Act, Article 136:

c Suit for declaration of title and recovery of possession-Decreed ex-
parte by trial Court-Filing of an application under 0. IX R.. 13 CPC by
judgment debtors for setting aside ex-pa rte decree-Dismissed for default by
trial Court-Revision petition dismissed by High Court--Fi/ing of an
application.for execution of decree-Dismissed by the Executing Court holding
that the period cf limitation had to be counted from the date of dismissal of
D
the Revision by the High Court--On appeal Held: the application for execution
was clearly time-barred as having been filed beyond the period of limitation
of 12 years in terms of Article I 36 of the Limitation Act - Both the Executing
Court and the High Court erred in not concluding the application for
execution of the decree as time barred
E
The question which arose for consideration in this appeal was as to when
would the period of limitation for execution of a decree commence in terms of
Article 136 of the Limitation Act.

Appellant, the judgment debtor, contended that the High Court was not
F justified in summarily rejecting the Civil Revision; that the Executing Court
had erroneously held that the period of limitation had to be reckoned with
effect from the date of dismissal of the Civil Revision; and that Article 136 of
the Limitation Act, 1963 provides for a period of 12 years for filing of an
application for execution of a decree for recovery of immovable property; and
that since the application was filed on 5.4.1991, it was barred by limitation.
G
Respondents submitted that the judgment and decree dated 3.5.1976 was
passed in the suit admittedly under Order XX Rule 7 of the CPC; and that as
the cost for enforcement of the decree was not ql!antified, the period of
limitation could not have commenced from the date of judgment and the decree. d
H 896
RAM BACHAN RAI v. RAM UDAI RAI (PASA YAT, J.] 897
Allowing the appeal, the Court A
.,
.
HELD: The entire focus was on the date from which the period of
limitation is to be reckoned. The application for execution filed on 5.4.1991
was clearly time-barred as having been filled beyond the period of twelve years
prescribed under Article 136 of the Limitation Act. Thus, the High Court as
well as the Executing Court committed illegality in coming to a conclusion B
that it was not barred by limitation. Therefore, the inevitable result is that
the order passed by the High Court and the Executing Court cannot be
maintained and is set aside. (900-G-H; 901-A)

Chiranjilal (dead) by LRs. v. Hari Das (d) by LRs., (2005) 2 SCC 261,
relied on. c
Ram Nath Das and Ors. v. Saha Chowdhury and Co, Ltd. & Ors., AIR
(1974) Cal. 246, referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. I JOO of2000.
D
From the Judgment and Order dated 22.8.1995 of the High Court of
Patna iii Cr.No. 729/1994.

S. Chandra Shekhar for the Appellants.

S.8. Sanyal and Akhilesh Kumar Pandey for the Respondents. E
The Judgment of the Court was delivered by

ARIJIT PASAYAT, J. Challenge in this appeal is to the order of a
learned Single Judge of the Patna High Court summarily rejecting the Civil
Revision filed by the appellants under Section 115 of the Code of Civil F
Procedure, 1908 (in short the 'Code').

The Civil Revision was filed against the order of the Executing Court
allowing the application for execution of a decree which was passed more
than 14 years ago.
G
A brief reference to the factual aspect would suffice.

The respondents-plaintiffs filed a suit for declaration of title and recovery

... of possession in which the appellants had appeared and filed a written
statement. The suit was decreed ex parte as the defendants did not appear
H
898 SUPREME COURT REPORTS [2006] SUPP. I S.C.R.

A on the date fixed. The ex parte decree in the concerned suit was passed on
3.5.1976. No appeal was, however, filed against the aforesaid judgment and ... ~
decree. The present appellants who are the judgment debtors filed an
application under Order IX Rule 13 CPC for setting aside the ex parte decree
which was dismissed for default on 14.7.1978. The said application was not
restored by the trial Court and a Miscellaneous Appeal filed also stood
B dismissed on I0.1.1987. The Civil revision filed against the order of dismissal
was also dismissed on 6.4.1987. At no stage any stay was granted by any
Court and the respondents as decree holders filed an application for execution
on 5.4.1991. According to the appellants, only a symbolic possession was
taken as no notice as mandatorily required to be served in terms of Order XX!
c Rule 22 or Order XX! Rule 58 of the Code of Civil Procedure was ever served
on the judgment debtors. When the judgment debtors came to know of the
symbolic possession taken by the decree holders, they filed objection under
Section 47 CPC saying that the decree was not legally enforceable as it was
barred by time.

D The learned Subordinate Judge dismissed the objection holding that the
period of twelve years had to be counted from the date of dismissal of the
Civil Revision by the High Court i.e. from 6.4.1987 as the ex-parte decree had
merged in it. As already noted, the Civil Revision was summarily dismissed.

In support of the appeal, learned counsel for the appellants submitted
E that the High Court was not justified in summarily rejecting the Civil Revision.
According to him, the Executing Court had erroneously held that the period
of limitation had to be reckoned with effect from the date of dismissal of the
Civil Revision. On the contrary, in view of what has been stated in W.B.
Essential Commodities Supply Corporation v. Swadesh Agro Farming &
F Storage Pvt. ltd. and Anr., [1999) 8 SCC 315 the application was clearly filed
beyond the period of limitation. Article 136 of the Limitation Act, 1963 (in
short the 'Limitation Act') provides for a period of 12 years for filing an
application for execution of a decree for recovery of immovable property.
Since the application was filed on 5.4.1991 it was beyond the period of
limitation.
G
In response, learned counsel for the respondents submitted that the
judgment and decree dated 3.5. I976 was passed in the suit admittedly under
Order XX Rule 7 of the CPC. As the cost for enforcement of the decree was
not quantified, the period of limitation could not have commenced from the .,,..
date of judgment and the decree.
H
RAM BACHAN RA!v. RAMUDAI RAI [PASAYAT,J.] 899

The basic issue, therefore, is when would the period of limitation for A
execution of a decree passed in a suit commence. Article 136 of the Limitation
Act reads as follows:
Uescnpt1on ot
application Period of limitation Time from which period
begins to run B
For the Twelve years \Vhen the decree or
execution of order becomes
any decree enforceable or where
(other than a the decree or any subsequent
decree order directs any payment
granting a of money or the delivery of
c
mandatory. any property to be made
injunction) that a certain date or at
or order of recurring periods, when
any civil default in making the
Court. payment or delivery in respect D
of which execution is sought,
takes place;
Provided that an application
for the enforcement or
execution of a decree granting
a perpetual injunction shall E
not be subject to any period
of imitation.
Noticing some conflicts in views expressed by two Judge Benches
judgment of this Court, reference was made to a three Judge Bench in
Chiranjilal (dead) by Lrs. v. Hari Das (dead) by Lrs., [2005] 2 SCC 261. A F
three Judge Bench by its judgment dated May 13, 2005 in Dr. Chiranji Lal
(D) by Lrs. v. Hari Das (d) by Lrs., [2005] l 0 SCC 746) has decided the matter
observing inter-alia as follows:

"24. A decree in a suit for partition declares the right of the parties G
in the immovable properties and divides the shares by metes and
bounds. Since a decree in suit for partition creates rights and liabilities
of the parties with respect to the immovable properties, it is considered
as an instrument liable for the payment of stamp duty under the Indian
Stamp Act. The object of the Stamp Act being securing the revenue
for the State, the scheme of the Stamp Act provides that a decree of H
900 SUPREME COURT REPORTS (2006] SUPP. I S.C.R.

A partition not duly stamped can be impounded and once the requisite
stamp duty along with penalty, if any, is paid the decree can be acted
upon."

In paragraph 25 of the same decision, this Court also observed as
follows:
B
25. The engrossment of the final decree in a suit for partition would
relate back to the date of the decree. The beginning of the period
of limitation for executing such a decree cannot be made to depend
upon date of the engrossment of such a decree on the stamp paper.
The date offurnishing of stamp paper is an uncertain act, within the
c domain, purview and control of a party. No date or period is fixed
for furnishing stamp papers. No rule has been shown to us requiring
the Court to call. upon or give any time for furnishing of stamp paper.
A party by his own act of not furnishing stamp paper cannoi stop
the running of period of limitation. None can take advantage of his
D own wrong. The proposition that period of thereupon an only
thereafier the period limitation would remain suspended till stamp
paper is furnished and decree engrossed of twelve years will begin
to run would lead to absurdity. In Yeswant Deorao Deshmukh v.
Walchand Ramchand Kothari, it was said that the payment of court
fee on the amount found due was entirely in the power of the decree-
E holder and there was nothing to prevent him from paying it then and
there; it was a decree capable of execution from the very date it was
passed. (Emphasis supplied)

In view of the said decision, the inevitable conclusion is that the
Executing Court was not correct in its view. It is to be noted that learned
F counsel for the respondents conceded to the position that the period of
limitation is not to be reckoned from the date of dismissal of the Civil Revision
which was filed relating to rejection of the application under Order IX Rule
13, CPC. The entire focus was on the date from which the period oflimitation
is to be reckoned. Reliance was placed on a decision of the Calcutta High
G Court in Ram Nath Das and Ors. v. Saha Chowdhury and Co. Ltd. and Ors.,
AIR ( 1974) Cal 246 where it was held that the decree was enforceable and
when cost is assessed. The ratio in the said judgment clearly runs counter
to what has been stated in Dr. Chiranji Lat's case (supra).

For the reasons aforesaid, the application for execution filed on 5.4.1991 ,1
H was clearly time barred having been filed beyond the period of twelve years
RAM BACHAN RA!v. RAMUDAI RAJ [PASAYAT,J.] 901
prescribed under Article 136 of the Limitation Act. Accordingly the High A
Court as well as the Executing Court committed illegality in coming to a
conclusion that it was not barred by limitation. Therefore, the inevitable result
is that the order passed by the High Court and the Executing Court cannot
be maintained and are set aside. The appeal is allowed. The application for
execution stands rejected. No costs.
B
S.K.S. Appeal allowed.