9911796707
TMI Blog1999 (9) TMI 952X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant filed application, G.A. No. 374 of 1995, for execution of the decree before the High Court on June 5, 1995. The learned Executing Judge ordered execution of the decree. But, on appeal by the respondents, the Division Bench of the High Court set aside the order of the learned Executing Judge holding that the execution petition was barred by limitation under Article 136 of the Limitation Act and thus allowed the appeal on September 30, 1997. That judgment and order is challenged by special leave, in this appeal. Mr. Tapas Ray, learned senior counsel appearing for the appellant, has argued that for purposes of Article 136 of the Limitation Act, the starting point of limitation is not the date of the decree but the date when the decree becomes enforceable; it was only when the decree was actually drawn up and signed, after a lapse of one year and three and three months of delivering the judgment, that it became enforceable, and from that date the appellant was entitled to the benefit of full period of limitation; so its application for execution could not be held to be barred by limitation. According to Mr. Ray, for an application under Order XXI Rule 11(2) of the Code of Civ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. From a perusal of the Article, extracted above, it is clear that for execution of any decree (other than a decree granting a mandatory injuction) or order of a civil court, a period of 12 years is prescribed; Column 3 contains two limbs indicating the time from which period of limitation begins to run, that is, the starting point of limitation; they are: (i) when the decree or order becomes enforceable and (ii) 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. The proviso says that there shall be no period of limitation for enforcement or execution of decree granting a perpetual injuction. We are concerned here with the first of the above-mentioned starting points, namely, when the decree or an order becomes enforceable. A decree or order is said to be enforc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an application is made for obtaining a copy of only the last paragraph of the judgment, such copy shall indicate the name and address of all the parties to the suit. Rule 6A 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 the pronouncement of the judgment within which the decree must be drawn up. In the event of the decree not so drawn up, clause (a) of sub-rule (2) of Rule 6A enables a party to make an appeal under Rule I of Order XLI C.P.C. without filing a copy of the decree appealed against and for that purpose the fast 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 paragr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions do not apply to a money decree and , therefore, appellant can derive no benefit from them. In the instant case, the decree is a money decree. The decree became enforceable immediately on the pronouncement of the judgments as thereupon a deemed decree came into existence. It cannot, therefore, be said that the delay in drawing up of the decree renders it unenforceable from the date of the judgment. The next contention of Mr. Ray is that due to the court taking more than a year and three months to draw up and sign the decree, the period of limitation of 12 years, available to the appellant, is cut short so the starting point of limitation has to be computed from the date of signing of the decree to avert hardship and prejudice to him. The submission appears to be attractive, but falls to scrutinizing. The argument is obviously based on the maxim actus curiae beminem gravabit (an act of the court shall prejudice no man). It would apply to relieve a party of the hardship or prejudice caused due to the act of the Court. But to invoke this maxim it is not enough to show that there is delay in drawing up of the decree, it must also be shown that the appellant has suffered so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here the appellant lost the period of limitation because of any act of the Court but it is a case where the appellant failed to apply for execution of the decree for reasons best known to it and how seeks to take advantage of the fact that the Court took time for drawing up and signing the decree. In our view, the delay in drawing up and signing the decree did not cause any prejudice to him. There is no nexus between the late drawing up of decree by the Court and the filing of the execution petition by the appellant after the expiry of the limitation. Under the scheme of the Limitation Act, execution applications, like plaints have to be presented in the Court within the time prescribed by the Limitation Act. A decree holder does not have the benefit of exclusion of the time taken for obtaining the certified copy of the decree like the appellant who prefers an appeal, much less can he claim to deduct time taken by the Court in drawing up and signing the decree. In this view of the matter, the High Courts of Patna and Calcutta in Sri Chandra Mouli Deva v. Kumar Binoya Hand Singh Ors., AIR (1976) Patna 208 and Sunderlal Sons v. Yagendra Nath Singh Anr., AIR (1976) Calcutta 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
