LIMITATION FOR EXECUTION OF DECREE

[Mr. M. GOVINDARAJAN]

Execution

The word 'execution' is not defined in the C.P.C. It simply means the process for enforcing the decree that is passed in favor of the decree holder. As per Rule 2 (e) of Civil Rules of Practice ‘Execution Petition’ means the Petition to the court for the execution of any decree or order. As per Rule 2 (f) of Civil Rules of Practice ‘Execution application’ means an application to the court made in a pending Execution Petition and includes an application for transfer, of a decree.

Execution of a decree or an order or implementation or enforcement of such decree or orders, these are important steps since they are concerned with realization of the fruits of the decree or the orders as the case may be. Quite often, it is said that the difficulty for the decree-holder would commence after obtaining decree since there would be several obstacles, the procedural technicalities, which may come in the way, several obstructions may be created for realization of the fruits of the decrees or the orders.

So far as execution application is concerned, the right accrues to a litigant on the date of filing on the execution application. An execution application is not continuation of suit. It is separate from and independent of a suit.

Enforceability of decree

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.

Limitation

Article 136 of the Limitation Act, 1963 provides the period for execution of a decree. This Article specifically prescribes and deals with the applications for the execution of decrees and orders. It provides that the execution proceedings have to be initiated within 12 years from the date 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.

In DEEP CHAND AND ORS. VERSUS MOHAN LAL - 2000 (4) TMI 851 - SUPREME COURT, the Supreme Court, while dealing with the Article 136 of the Limitation Act, made some important observations as detailed below-

• A decree or order becomes enforceable from its date.
• In appropriate cases the court passing the decree may prescribe the time wherefrom the decree becomes enforceable on a future date.
• The purpose of an execution proceeding is to enable the decree-holder to obtain the fruits of his decree is to enable the decree-holder to obtain the fruits of his decree.
• In case where the language of the decree is capable of two interpretations, one of which assists the decree-holder to obtain the fruits of the decree and the other prevents him from taking the benefits of the decree, the interpretation which assists the decree-holder should be accepted.
• A decree is not to be rendered futile on technicalities. A rational approach is necessitated in cases where a decree has been the subject of prolonged litigation and a fair construction is to be given thereto.

In AKKAYANAICKER VERSUS A.A.A. KOTCHADAINAIDU AND ORS. - 2004 (9) TMI 708 - SUPREME COURT, the Supreme Court held that in view of the words ‘when the decree or order becomes enforceable’ occurring in Article 136 of the Limitation Act the starting point of the limitation would be the date on which the decree becomes capable of execution.

In ‘Shaifuddin (dead) through legal heirs v. Kanhaiya lal (dead) through legal heirs and others’ -2023 (4) TMI 1065 - SUPREME COURT, the present appeal was filed before the Supreme Court against the judgment dated 04.01.2006 in Civil Revision Petition No. 715/2002 passed by Madhya Pradesh High Court. This order is assailed mainly on the ground of limitation. It was alleged that the execution petition was filed after 12 years from the date of decree. The appellant contended that the Revisional Court was not justified in dismissing the revision petition.

The Supreme Court considered the point - whether the date on which the compromise decree dated 26.04.1960 was entered into in Civil First Appeal No.11/1959 or the date when the final decree was passed by the Civil Court in Suit No. 30 A/87 i.e. 31.03.1994, will be considered for establishing the period of limitation under the Limitation Act, 1963 for instituting execution proceedings?

The Supreme Court analyzed the compromise decree dated 26.04.1960 in First Civil Appeal No. 11/1959. Clause 6 of the compromise decree reads as below-

“That after institution of this suit and during the pendency of the case in the District Judge Court, the appellant started proceedings to surrender certain part of the land to the government. But actual possession over this piece of land is of the Respondents No. 1 to 4. Respondents No. 1 to 4 shall be entitled to maintain their right and possession over the same as before and would be entitled for getting the proceedings of the surrender as terminated, and for this they may initiate legal action. The appellants by adducing their statement etc., as per their necessity/requirement, shall assist to the respondent alas after terminating all kinds of legal actions, if the aforesaid premise is taken away from the possession of the respondent no 1 to 4, then the appellant shall give from their land from the adjacent land from the east of the V points indicated in the map to the respondent No.1 to 4, admeasuring to 1 bigha 5 biswas = one & a quarter bigha from where so ever the appellants may desire to do so, and in that condition the respondent no. 1 to 4 shall have the right to take the same.”

The Supreme Court, on the perusal of the Clause 6, observed that the compromise decree clearly shows that during the pendency of the suit, the Appellant surrendered the land to the State Government. This compromise decree was entered into wherein it was specified that if due to such surrender the Respondents (Decree holders) were to lose possession of the land, then the Appellant (Judgment Debtor) would give 1 bigha and 5 biswas to the former. The cause of action to execute the compromise decree arose when the premises were taken away from the possession of the Decree holders (Respondents Nos.1 to 4). The dispossession of the Respondents was confirmed vide final decree passed by the Civil Court in Suit No.30 A/87 when rights in favor of third person, namely, Mr. Malik Ram, were finally determined. Therefore the Supreme Court held that the cause of action would arise only on 31.03.1994. The prerequisite for enforceability of clause 6 is the dispossession of the defendants, de facto or de jure.

The Supreme Court further observed that it appears that clause 6 of the compromise decree could not have been executed unless the Decree Holders were to lose their right of possession, which fact was not a possibility unless such rights stood conclusively determined by the Civil Court.

The Supreme Court held that the period of twelve years is computable from the said date, hence the Execution Application made on 17.07.1995 is within Limitation. the Courts below rightly held that the Execution Application is within limitation.

The Supreme Court dismissed the appeal.