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Appeal (civil) 5323 of 2007
Manohar S/o Shankar Nale and others
Jaipalsing S/o Shivlalsing Rajput and others
DATE OF JUDGMENT: 20/11/2007
S.B. Sinha & Harjit Singh Bedi
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
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
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:-
Time from which period
begins to run
For the execution
of any decree
(other than a
decree granting a
injunction) or order
of any civil court
When the decree or
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,
Provided that an
application for the
execution of a decree
granting a perpetual
injunction shall not be
subject to any period of
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/-.