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Limitation Act, 1963-Article 136-Decree-Execution of-Limitation for-Decree for possession in favour of respondents in second appeal-Review petition thereagainst dismissed-Supreme Court staying order in revision petition and directing trial court to ascertain mesne profits-Execution petition-Challenge to, by appellants on the ground that it was time barred-Courts below holding that the petition was within limitation as stay order to the order of High Court was operating-Sustainability of-Held: Not sustainable-SLP was filed only against review petition-Stay of operation of order in review petition was meaningless since the review petition was already dismissed-Decree passed by High Court was not a composite one-Proceeding for computation of mesne profit was to be instituted which did not come in the way of execution of decree-Also it cannot be said that the review petition having been dismissed, doctrine of merger was applicable-Code of Civil Procedure, 1908-O 20 r 12 and s. 114 r/w O 47 r 1. Predecessor-in-interest of the respondents filed suit for possession and the same was dismissed. Appeal was also dismissed. However, the second appeal was allowed and suit for possession was decreed. Predecessor-in-interest of appellants filed review application which was dismissed. Appellant filed SLP and leave was granted. This Court stayed the order of High Court in second appeal and directed the trial court to ascertain mesne profits to be deposited by appellants. Thereafter, appeal was dismissed being incompetent holding that no appeal was maintainable in terms of Order 47 Rule 7 CPC rejecting a review application. Meanwhile, respondent filed application for executing the decree. Appellant contended that the application was not maintainable since the same was time barred. Executing court held that the petition was within limitation as Order of stay to the order of High Court was operating. Appellant filed writ petition. Single Judge of High Court dismissed the writ petition upholding the order of the executing court. Hence the present appeal. Appellant contended that the Courts below acted illegally and without jurisdiction in passing the impugned judgment insofar as they failed to take into consideration that no order was passed by this Court staying execution of the proceedings or operation of the judgment and decree. Respondents contended that High Court passed composite decree and in view of the fact that this Court directed computation of mesne profit, the execution case was not barred by limitation; and that an Order passed in such proceedings would merge with the main judgment and decree. =Allowing the appeal, the Court HELD: 1.1. The decree passed by the High Court in the Second Appeal is in two parts. The Court granted a decree for possession. Respondent was also found to be entitled to an enquiry in terms of Order 20 Rule 12 CPC in regard to computation of mesne profit from the date of the institution of the suit, till the date of the actual delivery of possession. Therefore, it cannot be said that the decree was a composite one. The proceeding for computation of mesne profit required to be undertaken was subject to institution of a proceeding but, by reason thereof, execution of the decree in regard to the possession of land was not required to be awaited till the outcome. [Para 10] [371-E, F, G; 372-A] 1.2. It cannot be said that in a case of this nature, namely where a review petition was dismissed, the doctrine of merger will have any application whatsoever. It is one thing to say that the respondent was entitled to file an application for review in terms of section 114 read with Order 47 Rule 1 CPC, but it is another thing to say that the decree passed in favour of the respondent merged with the order dismissing the review application. Matter might have been different, if the review application had been allowed either wholly or in part in terms whereof an application for execution of the decree could have been filed only in terms of the modified decree. It is not the contention of the respondent that any order of stay was passed in the review application. Thus, there was no bar in proceeding with the execution case. The decree of possession passed in favour of the respondent became enforceable immediately on its passing. An execution petition therefor was required to be filed within a period of 12 years. [Paras 11 and 13] [371-A, B, C, D; 372-B, C] 1.3. The order of purported stay passed by this Court in terms of its Order dated 21.3.1988 is also of no assistance to the plaintiff-decree holder. The Special Leave Petition was filed only against the Order dated 1.7.1985 refusing to review its judgment and decree dated 2.9.1983. The stay of operation of the Order dated 1.7.1985 for all intent and purport was meaningless as the review petition already stood dismissed. Further, the direction of this Court that computation of mesne profit would go on and the same would be deposited by the appellant is of no consequence inasmuch as by reason thereof neither proceeding was stayed nor the operation of the judgment and decree had been stayed. In fact, it was an order passed in favour of the decree holder. The said direction did not come in his way to execute the decree for possession. Therefore, there is no reason to hold that the said order could be construed to be one passed in favour of the decree holder-respondent as was contended or otherwise. The Executing Court as well as the High Court committed a manifest error in opining that the Execution Petition was not barred by limitation. [Paras 15, 16, 17 and 18] [373-G; 374-A, B, C, D] Rekha Mukherjee v. Ashis Kumar Das and Ors., [2005] 3 SCC 427, distinguished. W.B. Essential Commodities Supply Corpn. v. Swadesh Agro Farming and Storage Pvt. Ltd., [1999] 8 SCC 315; Hasham Abbas Sayyad v. Usman Abbas Sayyad and Ors., [2007] 2 SCC 355 and Raghunath Rai Bareja and Anr. v. Punjab National Bank and Ors., (2006) 13 SCALE 511, referred to. Satyajit A. Desai, Anangha S. Desai, Amol N. Suryawanshi and Venkateswara Rao Anumolu for the Appellants. Makarand D. Adkar, Vijay Kumar and Vishwajit Singh for the Respondents.

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CASE NO.:
Appeal (civil) 5323 of 2007

PETITIONER:
Manohar S/o Shankar Nale and others

RESPONDENT:
Jaipalsing S/o Shivlalsing Rajput and others

DATE OF JUDGMENT: 20/11/2007

BENCH:
S.B. Sinha & Harjit Singh Bedi

JUDGMENT:
J U D G M E N T 
[Arising out of SLP(C) No. 25959 of 2005]
S.B. SINHA, J.

 1. Leave granted.

 2. Applicability of the provisions of Article 136 as contained in the 
Schedule appended to the Limitation Act, 1963 is in question in this appeal 
which arises out of a judgment and order dated 26.7.2005 passed by a 
learned Single Judge of the Bombay High Court, Nagpur Bench at Nagpur in 
Writ Petition No. 5927 of 2004 affirming an order dated 26.10.2004 passed 
by the Civil Judge, Junior Division in Regular Darkhast No. 32 of 2001.
3. Shivlalsing, predecessor-in-interest of the respondents filed a suit in 
the Court of Civil Judge, Junior Division, Malkapur. The said suit was 
marked as Regular Civil Suit No. 250/1965. It was dismissed on 
24.12.1968. An appeal preferred thereagainst was also dismissed. However, 
a second appeal filed by the plaintiff-decree holder was allowed upon setting 
aside the judgment and decree of the Courts below, the operative portion 
whereof reads as under :
For the reasons stated in the accompanying judgment, 
the court allows the appeal, sets aside the decrees of both 
the courts below dismissing the suit and instead. The 
Court orders that the plaintiffs suit for possession of 32 
gunthas area, as shown in the copy of the map Exh. 30, 
from out of Survey No. 59/1 area 3 acres 12 gunthas, 
shall stand decreed with costs throughout. The appellant-
plaintiff is also entitled to an enquiry under the 
provisions of the Order XX Rule 12(1) C.P.C. for mesne 
profit in respect of the suit land from the date of the suit 
till the actual delivery of possession.

 4. An application for review thereof was filed by the predecessor-in-
interest of the appellants herein. The said review petition was dismissed by 
an Order dated 12.8.1985. Appellants preferred a special leave petition 
thereagainst before this Court and leave having been granted, the matter was 
marked as Civil Appeal No. 1836 of 1986.
5. By an Order dated 21.3.1988, this Court passed an order of stay in the 
following terms :
The Application for Stay above mentioned being called 
on for hearing before this Court on the 21st day of March, 
1988 upon hearing Counsel for the parties herein. This 
Court Doth Order that the order of this Court dated the 8th 
May, 1986 passed in Civil Miscellaneous Petition No. 
10447 of 1986 be and is hereby confirmed and that 
pending the hearing and final disposal by this Court of 
the appeal above mentioned, the operation of the Order 
dated the 1st July, 1985 of the High Court of Judicature at 
Bombay (Nagpur Bench) Nagpur in Miscellaneous Civil 
Application No. 134 of 1984 in Second Appeal No. 158 
of 1972 be and is hereby stayed and the Civil Judge, 
Junior Division, Malkapur, Maharashtra be and is hereby 
directed to ascertain the amount of mesne profits which 
shall be deposited by the appellant herein.

6. The said appeal, however, came to be dismissed as being incompetent 
by this Court opining that no appeal lay in terms of Order 47 Rule 7 of the 
Code of Civil Procedure rejecting a review application.

7. Admittedly, an application for executing the said decree was filed by 
the decree holder only on 10.12.2001. Appellant, having been noticed in the 
said execution proceeding, inter alia, raised a contention about 
maintainability thereof on the premise that the same was barred by 
limitation. The Executing Court by an Order dated 26.10.2004 rejected the 
said contention holding :
It is only a disputed point as to whether the decree was 
stayed by Honble Apex Court. If it was stayed, the 
Darkhast would be within limitation and if not, it would 
not be Record of original darkhast is called for copy of 
writ in respect of stay is on the said record, from Honble 
Apex Court stayed the effect and operation of the order 
passed by Honble High Court while deciding review 
petition against the order passed in Second Appeal. It is 
submitted by Shri Tarkase, learned counsel for the J.D. 
that the original decree was not stayed. It is submitted by 
Shri Rawant, learned counsel for the D.H. that the said 
order had the effect of staying the original decree as it 
merged into the orders passed by Honble High Court. I 
am in agreement with this submission of Shri Rawant. 
Shri Tarkase, learned counsel for the J.D. placed his 
reliance on the decision in the case of Ram Ratan 
Choudhary Vs- Upendra Chondru Das, A.I.R. 1923 Col. 
288. But, there was to stay is that case (sic) and hence 
the ratio is not applicable to the facts of the present case. 
Hence, there is no substance in the submission that the 
execution is not within limitation. Hence, I hold that the 
execution is well within limitation as an order of stay to 
the order of Honble High Court was operating.

8. As noticed hereinbefore, a learned Single Judge of the Bombay High 
Court, Nagpur Bench, Nagpur by reason of the impugned judgment dated 
26.7.2005 dismissed the writ petition preferred by the appellant thereagainst 
stating;
The learned trial court while rejecting the application 
has found that the judgment and decree dated 02/09/1983 
had merged into the order of this Court while rejecting 
review dated 01/07/1985. He, therefore, submits that the 
effect of the stay granted by the Apex Court was to stay 
the execution of the decree and as such the execution of 
the decree cannot be proceeded till vacation of the stay 
by the Apex Court. The execution of proceedings have 
been filed within a period of 12 days from the date on 
which the Apex Court had vacated the stay.

In that view of the matter, I do not find any perversity or 
infirmity in the jurisdiction exercised by the learned trial 
court so as to warrant any interference of this court in the 
extraordinary jurisdiction under Article 227 of the 
Constitution of India. Hence the petition is rejected.

9. Mr. Satyajit A. Desai, learned counsel appearing on behalf of the 
appellant in support of the appeal would submit that the learned Courts 
below acted illegally and without jurisdiction in passing the impugned 
judgment insofar as they failed to take into consideration that no order 
having been passed by this Court staying execution of the proceedings or 
operation of the judgment and decree, the impugned judgment must be set 
aside being wholly unsustainable in law. 
 Mr. Makarand D. Adkar, learned counsel appearing on behalf of the 
respondents, on the other hand, would submit that a composite decree having 
been passed by the High Court and furthermore in view of the fact that this 
Court in its order dated 21.3.1988 clearly directed computation of mesne 
profit, the execution case was not barred by limitation.

 It was further submitted that the remedy of review being a statutory 
remedy available to an aggrieved party, an Order passed in such proceedings 
would merge with the main judgment and decree.

10. The decree passed by the High Court in the aforementioned Second 
Appeal No. 158 of 1972 is in two parts. The Court granted a decree for 
possession In respect of an area measuring 32 gunthas, as delineated in the 
map Exh. 30, out of Survey No. 59/1 measuring 3 acres 12 gunthas. 
Respondent was also found to be entitled to an enquiry in terms of Order 20 
Rule 12 of the Code of Civil Procedure in regard to computation of mesne 
profit from the date of the institution of the suit, till the date of the actual 
delivery of possession. It is therefore, not correct to contend that the decree 
was a composite one. The proceeding for computation of mesne profit 
required to be undertaken in terms of Order 20 Rule 12 of the Code of Civil 
Procedure was subject to institution of a proceeding but, by reason thereof, 
the execution of the decree in regard to the possession of 30 gunthas of land 
was not required to be awaited till the outcome.

11. It is also incorrect to contend that in a case of this nature, namely 
where a review petition was dismissed, the doctrine of merger will have any 
application whatsoever.
 It is one thing to say that the respondent was entitled to file an 
application for review in terms of Section 114 read with Order 47 Rule 1 of 
the Code of Civil Procedure, but it is another thing to say that the decree 
passed in favour of the respondent merged with the order dismissing the 
review application. Matter might have been different, if the review 
application had been allowed either wholly or in part in terms whereof an 
application for execution of the decree could have been filed only in terms of 
the modified decree. 
 It is not the contention of the respondent that any order of stay was 
passed in the review application. There was, thus, no bar in proceeding with 
the execution case. 
12. Keeping in view the aforenoticed factual backdrop, we may notice the 
law applicable herein.
 Article 136 of the Limitation Act reads 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 or where 
the decree or any 
subsequent order directs 
any payment of money 
or the delivery of any 
property to be made at a 
certain date or at 
recurring periods, when 
default in making the 
payment or delivery in 
respect of which 
execution is sought, 
takes place:
Provided that an 
application for the 
enforcement or 
execution of a decree 
granting a perpetual 
injunction shall not be 
subject to any period of 
limitation 

13. The decree of possession passed in favour of the respondent became 
enforceable immediately on its passing. An execution petition therefor was 
required to be filed within a period of 12 years. 
 In W.B. Essential Commodities Supply Corpn. v Swadesh Agro 
Farming & Storage Pvt. Ltd., [(1999) 8 SCC 315], this Court opined;
 (1) A decree or order is said to be enforceable 
when it is executable. For a decree to be executable, it 
must be in existence. A decree would be deemed to 
come into existence immediately on the pronouncement 
of the judgment. But it is a fact of which judicial notice 
may be taken of that drawing up and signing of the 
decree takes some time after the pronouncement of the 
judgment; the Code of Civil Procedure itself enjoins that 
the decree shall be drawn up expeditiously and in any 
case within 15 days from the date of the judgment. If the 
decree were to bear the date when it is actually drawn up 
and signed then that date will be incompatible with the 
date of the judgment. This incongruity is taken care of 
by Order 20 Rule 7 CPC which, inter alia, provides that 
the decree shall bear the date and the day on which the 
judgment was pronounced.

 (2)Rule 6-A enjoins that the last paragraph of the 
judgment shall state in precise terms the relief which has 
been granted by such judgment. It has fixed the outer 
time-limit of 15 days from the date of pronouncement of 
the judgment within which the decree must be drawn up. 
In the event of the decree not so drawn Rule 1 of Order 
41 CPC without filing a copy of the decree appealed 
against and for that purpose the last paragraph of the 
judgment shall be treated as a decree. For the purpose of 
execution also, provision is made in clause (b) of the said 
sub-rule which says that so long as the decree is not 
drawn up, the last paragraph of the judgment shall be 
deemed to be a decree. Clause (b) has thus enabled the 
party interested in executing the decree before it is drawn 
up to apply for a copy of the last paragraph only, without 
being required to apply for a copy of the whole of the 
judgment. It further lays down that the last paragraph of 
the judgment shall cease to have the effect of the decree 
for purposes of execution or for any other purposes when 
the decree has been drawn up.

 (3) 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. 

 See also Hasham Abbas Sayyad Vs. Usman Abbas Sayyad and Ors. 
[(2007) 2 SCC 355] 

14. In Raghunath Rai Bareja and Anr. Vs. Punjab National Bank And 
Others [(2006) 13 SCALE 511], this Court opined;
9. Under Article 136 to the Schedule of the Limitation 
Act, 1963 the period for applying for execution of any 
decree is 12 years from the date when the decree 
becomes enforceable. Since in the present case the final 
decree was passed and became enforceable on 15.1.1987, 
the period of limitation for filing an execution application 
expired on 15.1.1999

15. The order of purported stay passed by this Court in terms of its Order 
dated 21.3.1988 is also of no assistance to the plaintiff-decree holder. The 
Special Leave Petition was filed only against the Order dated 1.7.1985 
refusing to review its judgment and decree dated 2.9.1983. The stay of 
operation of the Order dated 1.7.1985 for all intent and purport was 
meaningless as the review petition already stood dismissed.

16. Further direction of this Court that computation of mesne profit would 
go on and the same would be deposited by the appellant is of no 
consequence inasmuch as by reason thereof neither proceeding was stayed 
nor the operation of the judgment and decree had been stayed. In fact, it was 
an order passed in favour of the decree holder. The said direction did not 
come in his way to execute the decree for possession.

17. We, therefore, do not see any reason to hold that the said order could 
be construed to be one passed in favour of the decree holder-respondent as 
was contended or otherwise.

 Mr. Adkar relies upon the decision of this Court in Rekha Mukherjee 
v. Ashis Kumar Das and Others [(2005) 3 SCC 427] which has no 
application in the present case.18. We, therefore, are of the opinion that the Executing Court as well as 
the High Court committed a manifest error in opining that the Execution 
Petition was not barred by limitation. The appeal is allowed. The impugned 
judgment is set aside with costs. Counsel fee quantified at Rs. 5,000/-.
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