RATAN SINGHversusVIJAY SINGH AND ORS.

A                                   RATAN SINGH
                                           v.
                              VIJAY SINGH AND ORS.

                                 DECEMBER 11, 2000

B                      [K.T. THOMAS AND R.P. SETHI, JJ.]


           Law of Limitation :

         Limitation Act, 1963/Limitation Act, 1908-Article 136/Article 182-
C Decree-EriforceafJi!ity of-Appellant-decree holder initiating the execution
  process after a long time contending that it was within /imitation as time
  would run from the date of dismissal of the second appeal~ Second appeal
  dismissed being barred by /imitation-Held, dismissal of an appeal as time
  barred is not a decree as there is no adjudication which could be said to
D have determined the rights of the parties with regard to all or any of the
  matters in controversy conclusively- -In the present case, the decree became
  enforceable when the fir~'f appellate court passed the decree which superseded
  the decree of the trial court. As no decree was passed in the second appeal,
  the decree of the first appellate court remained unaffected-Held, in the
  circumstances, the execution process initiated long after the expiry of 12
E years from the passing ofthe decree by the first appellate court, is irretrievably
  barred-Code of Civil Procedure, 1908----Sections 2(2) and 115.

          The appellant secured a decree for possession of the suit property.
    However, the execution of the decree was not applied for. The respondent/
F   judgment debtor filed First Appeal against it but the same was dismissed. The
    Second Appeal filed by respondent/judgement debtor against the decree and
    judgement of the first appellate court was also rejected by the High Court on
    the ground that the delay in filing the Second Appeal was not properly
    explained.

G         An execution petition was filed after expiry of a long time after the
    rejection of the aforesaid Second Appeal. The Execution Court resuscitated
    the decree with the help of the order passed in the Second Appeal as the
    execution petition was filed within 12 years of the passing of the aforesaid
    order. However, in revision the District Court reversed the order of the
H   Execution Court The petition filed before the High Court was not entertained
                                          510
                      RAlA:-.J SINGH v. VIJA Y SINGH                        511

as the revisional powers of the High Court had already been exercised by the       A
District Court. Hence the present appeal.

      On behalf of the appellant, it was contended that dismissal of the Second
Appeal would make the position different as time would run from the date of
such dismissal; that the interpretation of law of limitation should be such as
to prevent the seuttling of the remedy.                                            B

      Dismissing the appeal, the Court

      HELD : I. I. The decree became enforceable when the appellate court
passed the decree which superseded the decree of the trial court. As no decree     C
was passed by the High Court in the second appeal, inasmuch as it was
dismissed being barred by limitation, the decree of the first appellate court
remained unaffected and the enforceability once commenced remained
undisturbed for a period of 12 years therefrom. The execution process initiated
by the appellant long after the expiry of 12 years from the date of passing of
the decree by the first appellate court, is thus irretrievably barred.             D
                                                             (516-H; 517-A, B(

       1.2. In order that decision of a court should become a decree there must
be an adjudication in a suit and such adjudication must have determined the
rights of the parties with regard to all or any of the matters in controversy in   E
the suit and such determination must be of a conclusive nature. If those
parameters are to be applied then rejection of application for condonation of
delay will not amount to a decree. Consequently, dismissal of an appeal as
time barred is also not a decree. In such a situation the mere fact that the
second appeal was dismissed as a corollary to the dismissal of application for
condonation of delay has no effect on the decree passed by the first appellate     F
court. (515-F; 516-CI

     Shyama Pada Choudhary v. Saha Choudhary & Cu. & Ors., AIR (1976)
Calcutta 122, affirmed.
     Mamuda Khutcen and Ors. v. Beniyan Bibi and Ors., AIR (1976)
Calcutta 415, relied on.                                                           G
      Anandilal & Anr. v. Ram Narain and Ors., AIR (1984) SC 1383, referred
to.

     Nagendra Nath Dey and Anr. v. Suresh Chandra Dey and Ors., AIR
(1932) PC 165, held inapplicable.                                                  H
    512                       SUPREME COURT REPORTS (2000] SUPP. 5 S.CR.

A         2. Filing of an appeal would not affect the enforceability of the decree,
    unless the appellate court stays its operation. But if the appeal results in a
    decree that would supersede the decree passed by the lower court, then it is
    the appellate court decree which becomes enforce11ble. When the appellate
    order does not amount to a decree there would be no supersession and hence
B   the lower court decree continues to be enforceable. (515-AI

          3. Normally a decree or order becomes enforceable from its date. But
    cases are not unknown when the decree becomes enforceable on some future
    date or on the happening of certain specified events. The expression
    'enforceable' has been used to cover such decrees or orders also which become
C   enforceable subsequently. (514-Hl

          CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7194 of2000.

         From the Judgment and Order dated 16.2.98 of the Madhya Pradesh
    High Court in S.A. No. 1693of1997.

D        A.K. Chitale, Sr. Adv., Ms. Shilpa Chitale and Niraj Sharma for the
    Appellant.

          The Judgment of the Court was delivered by

          THOMAS, J. Leave granted.
E
           A decree-holder after securing a decree went into slumber and remained
    as such for a pretty long period like a Rip Van Winkle. When he awoke he
    realised that his decree became rust corroded and lost its enforceability due
    to efflux of a number of years. In his search to find out at least a straw to
F   cling on he came across an order of the High Court by which a Second
    Appeal preferred by his opposite party was dismissed as time barred. The
    Execution Court resuscitated the decree with the help of the said order, but
    the District Court in a revision held otherwise. This appeal by Special Leave
    is against the order of the District Court as the High Court shut its door for
    the decree-holder when he knocked at it. The High Court pointed out to him
G   that the revisional powers of the High Court under Section 115 of the Code
    of Civil Procedure (for short 'the Code') had already been exercised by the
    District Court on which such powers v,ere delegated in the State of Madhya
    Pradesh.

          The decree which the appellant succeeded in obtaining was one for
H   possession of the suit property. The trial court passed the decree on 14.12.1970.
               RATAN SINGH v. VIJA Y SINGH [THOMAS. J. I                    513

The respondent filed the First Appeal against it but it was dismissed on           A
1.8.1973. The execution petition was filed only on 24.3.1988 which obviously
was beyond time fixed by the Limitation Act. Then appellant thought of
availing himself of the benefit of an order passed by the High Court on
31.3.1976 when the High Court rejected a Second Appeal filed by the
respondent against the decree and judgment of the first appellate court. That      B
order of rejection was passed only on the ground that the delay in filing the
Second Appeal was not properly explained. As the appellant now made an
endeavour to utilize the said order we may extract the materiat po1tion of it
hereunder:

        "In the light of the foregoing discussion, it is apparent that the cause   C
        does not appear to be genuine and even if it is true, it has arisen due
        to the negligence or inaction of the appellant and his counsel. A
        cause which has arisen due to the negligence or inaction of the
        appeHant and/or his counsel, cannot be said to be a sufficient cause.
        In the result, I find that no sufficient cause for condonation of delay
        in the filing of this appeal has been made out. The application has,       D
        therefore, to be rejected and is accordingly rejected. Consequent to
        the rejection of this application, the appeal also stands dismissed as
        barred by time. I make no order as to costs."

      Though the ending statement in the said order is that the appeal also
stands dismissed, a reading of the order as a whole makes it clear that the        E
second appeal was not entertained on merits at atl. The High Court considered
the only question whether the second appeal filed by the judgment debtor
could be treated as valid appeal to be heard on merits. As the High Court
found that the appeal was presented after the expiry of the period of limitation
and since there was no valid explanation for the delay, the application for        F
condonation of delay was liable to be dismissed and consequently the second
appeal was rejected.

       Learned counsel for the appellant contended before us that dismissal
of the second appeal would make the position different as the time would run
from the date of such dismissal. He adoptt:d a second contention that              G
interpretation of law of limitation should be such as to prevent the scuttling
of the remedy.

      Article 136 of the Schedule to the Limitation Act 1963 provides 12 years
for execution of any decree or order of any civil court (other than a decree
granting a mandatory injunction). The third column in the Article which            H
    514                       SUPREME COURT REPORTS (2000] SUPP. 5 S.C.R.

A   indicates the time from which period begins to run, states that "when the
    decree or order becomes enforceable ............."

           The forerunner of the said Article in the Limitation Act, 1908, (for short
    'the old Limitation Act') was Article 182. It worded like this: "For the execution
    of a decree or order of any civil court not provided for by Article 183 or by
B   section 48 of the Code of Civil Procedure, 1908 - 3 years (or where a certified
    copy of the decree or order has been registered - 6 years)". The time from
    which the period would begin to run was shown as (I) the date of the decree
    or order, or (2) where there has been an appeal the date of the final decree
    or order of the appellate court, or the withdrawal of the appeal. (There are
C   some other items also in the third column of the Article but they are not
    relevant for the purpose of this case). Section 48 of the old CPC prescribed
    a period of 12 years before the expity of which a fresh application could be
    made for execution. It must be noted that the present Limitation Act has
    amended Section 48 of the old CPC. The position under Article 182 of the old
    Limitation Act was quite different from its corresponding Article 136 of the
D   present Limitation Act. Now period of execution of a decree starts running
    from the date when it "becomes enforceable". In the 'Objects and Reasons'
    for introducing the bill for altering the parameters of Article 182 following has
    been stated, inter alia, thus:

            "Existing Article 182 has been a fruitful source of litigation and therefore
E
            the ptu(:lo~ed Art.135 (now Art.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 any payment
F           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."
G
          When is a decree becoming enforceable? Normally a decree or order
    becomes enforceable from its date. But cases are not unknown when the
    decree becomes enforceable on some future date or on the happening of
    certain specified events. The expression "enforceable" has been used to
H   cover such decrees or orders also which become enforceable subsequently·
               RAT AN S!NUH v. Y!JA Y SINGH [THOMAS, J.]                   515
      Filing of an appeal would not affect the enforceability of the decree,      A
unless the appellate court stays its operation. But if the appeal results in a
decree that would supersede the decree passed by the lower court and it is
the appellate court decree which becomes enforceable. When the appellate
order does not amount to a decree there would be no supersession and hence
the lower court decree continues to be enforceable.
                                                                                  B
      A decree is defined in Section 2(2) of the CPC as under:

        "Decree means the formal expression of an adjudiq1tion which, so far
        as regards the Court expressing it, conclusively determines the rights
        of the parties with regard to all or any of the matters in controversy
        in the suit and may be either preliminary or final. It shall be deemed    C
        to include the rejection of a plaint and the determination of any
        question within Sec. 144, but shall not include-

        (a)   any adjudication from which an appeal lies as an appeal from an
              order, or
                                                                                  D
        (b)   any order of dismissal for default.

      Explanation.- A decree is preliminary when further proceedings have
to be taken before the suit can be completely disposed of. It is final when
such adjudication completely disposes of the suit. It may be partly preliminar;
and partly final."                                                                E
       In order that decision of a court should become a decree there must be
 an adjudication in a suit and such adjudication must have determined the
 rights of the parties with regard to all or any of the matters in controversy
 in the suit and such determination must be of a conclusive nature. If those
parameters are to be applied then rejection of application for condonation of     F
delay will not amount to a decree. Consequently, dismissal of an appeal as
time barred is also not a decree. We are aware that some decisions of the High
Courts have taken the view that even rejecting an appeal on the ground that
it was presented out of time is a decree within the meaning of the said
definition. We are also aware of the contrary decisions rendered by High          G
Courts on the same point. Dealing with some of those decisions a Full Bench
of the Calcutta High Court [S.P. Mitra, CJ, Sabyasachi Mukherjee, J (as he
then was) and S.K. Datta, J] has held in Mamuda Khateen and Ors. v.
Beniyan Bibi and Ors., AIR (1976) Calcutta 415 that "if the application under
Section 5 of the Limitation Act was rejected the resultant order cannot be
decree and the order rejecting the memorandum of appeal is merely an incidental   H
    516                      SUPREME COURT REPORTS (2000) SUPP. 5 S.C.R.

A order." The reasoning of the Full Bench was that when an appeal is barred
    by limitation the appeal cannot be admitted at all until the application under
    section 5 of the Limitation Act is allowed and until then the appeal petition,
    even if filed, will remain in limbo. If the application is dismissed the appeal
    petition becomes otiose. The order rejecting the memorandum of appeal in
B   such circumstances is merely an incidental order. We have no doubt that the
    decisions rendered by the High Courts holding the contrary view do not lay
    down the correct principle of law.

          In such a situation the mere fact that the second appeal was dismissed
    as a corollary to the dismissal of application for condonation of delay has no
C   effect on the decree passed by the first appellate court.

          Learned counsel cited the deeision of a two Judge Bench of Calcutta
    High Cou1t in Shyama Pada Choudhury v. Saha Choudhury & Co. & Ors.,
    AIR (1976) Calcutta 122 as the Bench repelled the contention that the time

D
    would start running from the date of the decree of the lower court when the
    appellate court did not interfere with the lower court decree. That position         ..
    was adopted in the background where the appellate court affirmed the decree
    of the lower court though with a slight modification regarding the costs
    portion. In such 11 situation it was rightly held that the appellate court decree
    became enforceable ilftd hcllce the time would start running from the date of
    that decree.
E
          Learned counsel reminded us of the observation made by this Court in
    Anandilal & anr. v. Ram Narain and ors., AIR (1984) SC 1383 that there is
  no justification for placing a rigid construction on the provisions of the
  Limitation Act. But we must remind ourselves of the other profile that in
F construing statutes of limitation, considerations of hardships are out of place.
  What is needed is a liberal and broad based construction and not a rigid or
  narrow interpretation of the provisions of the Limitation Act.

         The observations of the Privy Council contained in Nagendra Nath Dey
    and Anr. v. Suresh Chandra Dey and Ors., AIR (1932) PC 165 cited by the
G learned counsel do not help in the present context as it related to the scope
    and interpretation of Article 182 of the old Limitation Act. The serious departure
    made by the Parliament from the said article to the present one cannot be lost
    sight of while considering the decisions rendered under the former article.

          So the end result is this: The decree became enforceable on 1.8.1973
H when the appellate court passed the decree which superseded the decree of
             RATAN SINGH v. VIJAY SINGH [THOMAS, J.]                   517

the trial court. As no decree was passed by the High Court in the second      A
appeal the decree of the first appellate court remained unaffected and the
enforceability once commenced remained undisturbed for a period of 12 years
therefrom. The execution process initiated by the appellant long after the
expiry of 12 years from 1.8.1973 is thus irretrievably barred. Hence no
interference is called for. The appeal is accordingly dismissed.
                                                                              B
M.P.                                                    Appeal dismissed.