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Law of Limitation : Limitation Act, 1963/Limitation Act, 1908-Article 136/Article 182- Decree- Enforceability of-Appellant-decree holder initiating the execution process after a long time contending that it was within limitation as time would run from the date of dismissal of the second appeal-Second appeal dismissed being barred by limitation-Held, dismissal of an appeal as time barred is not a decree as there is no adjudication which could be said to 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conclusively-In the present case, the decree became enforceable when the first appellate court passed the decree which superseded the decree of the trial court.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 years from the passing of the 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/ 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. 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 Execution Court The petition filed before the High Court was not entertained as the revisional powers of the High Court had already been exercised by the 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 scuttling of the remedy. =Dismissing the appeal, the Court HELD : 1.1. The decree became enforceable when the appellate court passed the decree which superseded the decree of the trial court As no decree 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. [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 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 court. [515-F; 516-C] Shyama Pada Choudhary v. Saha Choudhary & Co. & Ors., AIR (1976) Calcutta 122, affirmed. Mamuda Khateen andi Ors. v. Beniyan Bibi and Ors., AIR (1976) Calcutta 415, relied on. 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. 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 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. [515-A] 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 enforceable subsequently. [514-H] CIVIL APPELLATE JURISDICTION : Civil Appeal No. 7194 of 2000.

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CASE NO.:
Appeal (civil) 7194 2000

PETITIONER:
RATANSINGH

 Vs.

RESPONDENT:
VIJAYSINGH AND ORS.

DATE OF JUDGMENT: 11/12/2000

BENCH:
K.T.Thomas, R.P.Sethi

JUDGMENT:

L.....I.........T.......T.......T.......T.......T.......T..J

 J U D G M E N T THOMAS, J. Leave granted.

 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 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 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 were delegated in the State of Madhya
Pradesh.

 The decree which the appellant succeeded in obtaining
was one for possession of the suit property. The trial
court passed the decree on 14.12.1970. The respondent filed
the First Appeal against it but it was dismissed on
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 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 material portion of it hereunder:

 In the light of the foregoing discussion, it is
apparent that the cause 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
appellant 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, 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 second appeal was not
entertained on merits at all. 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 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 adopted a second contention that
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
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 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 (1) 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 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 expiry 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 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 the proposed 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 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.

 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 cover
such decrees or orders also which become enforceable
subsequently.

 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
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.

 A decree is defined in Section 2(2) of the CPC as
under: Decree means the formal expression of an
adjudication 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 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 (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
preliminary and partly final."

 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 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 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.
vs. 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
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 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 effect on the
decree passed by the first appellate court.

 Learned counsel cited the decision of a two Judge
Bench of Calcutta High Court in Shyama Pada Choudhury vs.
Saha Choudhury & Co. & ors. (AIR 1976 Calcutta 122) as the
Bench repelled the contention that the time 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 a situation it was rightly held that the
appellate court decree became enforceable and hence the time
would start running from the date of that decree.

 Learned counsel reminded us of the observation made by
this Court in Anandilal & anr. vs. 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 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. vs. Suresh Chandra Dey and ors.
(AIR 1932 PC 165) cited by the 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 when the appellate court passed the
decree which superseded the decree of the trial court. As
no decree was passed by the High Court in the second 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.

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