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TMI Blog2013 (10) TMI 365X X X X Extracts X X X X X X X X Extracts X X X X ..... od of limitation or suspend the period of limitation from running till such time as the certificate was obtained – Reliance has been placed upon Section 18(1) of the Limitation Act. Contended that since payment has been accepted by the Judgment Debtors between the years 2004 to 2007 in lieu of the flat admeasuring 600 sq.ft. which was to be handed over to the Judgment Debtors, the limitation period would get extended as a fresh period of limitation would have to be computed from the date of payment and therefore the application filed in the year 2010 was within time - Receipts which are sought to be relied upon in the present Petition do not disclose that the payment was made in lieu of the flat which was to be handed over to the Judgment Debtors – Moreover, reliance upon clause (c) of Section 18 of the Limitation Act which carves out an exception in so far as the application for execution of a decree is concerned, the said clause (c) provides that an application for execution shall not be deemed to be an application in respect of any property or right. Hence Section 18 (1) would have no application to the execution of a decree in the present case and therefore the receipts whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onveyance. The said Consent Terms also provided that the Plaintiff i.e. the Petitioner herein would provide a residential flat admeasuring 600 sq.ft. free of cost to the Defendants which would stand in the name of Prema Dinanath Bhoir. It is the case of the Plaintiff that after filing of the Consent Terms dated 5th January 1995, he requested Dinanath Keshav Bhoir - the original Defendant No.1 on many occasions when they met personally to obtain the said Certificate under Section 230-A of the Income Tax Act. However, the said Dinanath Bhoir did not take any steps to obtain the said Certificate. On 12th July 1998 the said Dinanath Bhoir died. It is the case of the Plaintiff that thereafter he followed up the matter with Ramesh Dinanath Bhoir and Ranjan Dinanath Bhoir requesting them to get the said Certificate as it was the obligation of the Defendants to get the said Certificate under the said Consent Terms. However, in spite of the repeated requests of the Plaintiff, the said Certificate was not obtained by either Ramesh Bhoir or Ranjan Bhoir. It is the case of the Plaintiff that thereafter on 1st June 2001 there was a repeal of Section 230-A of the Income Tax Act by virtue of whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Deed may be approved as per the provision under O.21 R.34(3) of C.P.C. (4) The Commissioner may be appointed to execute the Conveyance Deed/Sale Deed and be directed to sign the said Sale Deed on behalf of the Defendants and the said Conveyance Deed may be registered in the Office of the Sub-Registrar Thane. (As per Provision under O.21 R.34(4) 6 of C.P.C. AND (5) The D.H. Ready to pay the costs and expenses of Stamp Duty Registration charges as would payable and Sundry expenses etc. directly at the time of registering the said Deed of Conveyance by the Commissioner. (6) The Defendants are interfering the possession of the Plaintiff over the lands described in Annexure A and hence Defendants may also be served with notice under O.21 R. 32(1) of C.P.C. for wilful disobedience of Decree. (7) The Movable Property of the Defendants may be attached by Issue of Warrant of Attachment under O.21 R.32(1) r.w. 43 of C.P.C. And may be sold under O.21 R. 32(3) of C.P.C. and to pass further orders of awarding compensation to Plaintiff from the amount realized in Auction Sale. (8) Any other Orders as deem fit and proper may be passed. (9) D.H. Crave ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 230-A of the Income Tax Act cannot be said to be a condition precedent for enforceability of the decree, in the sense which would suspend the limitation period. The Executing court held that a perusal of the entire decree no where discloses that the enforceability of the decree was to take place after happening of a certain specified event. The Executing Court, in so far as the aspect of certificate under Section 230-A of the Income Tax Act is concerned, observed that the period of limitation would not stand suspended indefinitely till such time as the said certificate under Section 230-A of the Income Tax Act was obtained. However, as indicated above, the Executing Court held that the aspect of the possession of the property and also the aspect that the Defendants would not disturb the possession of the Plaintiff in so far as the said reliefs are concerned, there is no limitation as such according to the Executing Court for their enforcement. The Executing Court therefore held that the execution proceeding is beyond limitation only in so far as the conveyance sought of the Suit property is concerned. As indicated above, it is the said order dated 21-4-2012 which is impugned in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esh Agro Farming Storage (P.) Ltd AIR 1999 SC 3421 has no application in the facts of the present case, as in the instant case the conveyance was to be executed only after the Defendants were to obtain the certificate under Section 230A of the Income Tax Act. Such was not the case in the judgment in West Bengal Essential Commodities Supply Corpn's case (supra) where the Apex Court was concerned with the enforceability of a money decree, which was not contingent upon the happening of any extraneous event. 8. Submissions on behalf of the respondents by the learned senior counsel Shri Shailesh Shah. (I) That though there was an agreement between the parties, the said agreement translated itself into a decree which was passed by the Executing Court in terms of the said agreement; (II) That the Petitioner cannot rely upon the said agreement to contend that the cause for filing the application for execution would arise only when there was refusal to comply with the decree by the Defendants. Since in the instant case, the decree has been passed in terms of the agreement which has been arrived at between the parties, the period of limitation that would apply would be one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he case of Om Prakash Navani v. Juno Changas Pereira AIR 2003 Bom. 381. Consideration 9. In the context of the submissions made by the Learned Counsel for the parties and especially the submissions made on behalf of the Decree Holder, it would be apposite to reproduce the relevant clauses of the said decree dated 5/1/1995 which are clauses 3, 4, 5, 6, 7, 9, 10 and 12. "3. The defendants agree and confirm that the plaintiff is in possession of all the lands described in Annexure "A" to these Consent Terms and the plaintiff has been put in possession of the said land in part performance of the agreement to sell executed by the defendant No.1 in favour of the plaintiff. 4. The defendant shall sell and convey all the lands described in Annexure "A' hereto in favour of the plaintiff or his nominee or nominees as and when called upon to do so. The defendants declare that they have received a total sum of Rs.25,50,000/- from the plaintiff in full and final settlement of price of the said lands described in Annexure A hereto. The defendants undertake to execute conveyance in respect of the said lands described in Annexure A as and when called upon to do so by the plaintif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Holder that the Suit has been disposed of in terms of the agreement which was arrived at between the parties and which agreement is reflected by the various clauses of the consent terms. It was the submission of the Learned Counsel appearing on behalf of the Decree Holder that the Defendants were obliged in terms of clause (4) to sell and convey the lands covered in Annexure-A in favour of the Plaintiff or his nominee or nominees as and when called upon to do so. It was further the submission of the Learned Counsel for the Decree Holder that the Defendants had undertaken to execute conveyance in respect of the properties mentioned in Annexure A as and when called upon to do so by the Plaintiff or his nominee or nominees. The Learned Counsel would therefore contend that the occasion to file the execution proceeding arose when the Defendants failed to comply with the advocate's notice dated 12-1-2010 as it is by the said notice that the Decree Holder called upon the Defendants to execute the conveyance in his favour. It was the submission of the Learned Counsel for the Decree Holder that the execution proceeding as filed in the year 2010 therefore cannot be said to be beyond limita ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submission based on clause 4 does not seem to have been urged before the Executing Court, this Court has proceeded to consider the same as the same impinges upon the entitlement of the Decree Holder to get the decree executed. 13. In so far as the submission based on Section 230-A of the Income Tax Act is concerned, in my view, the said condition of obtaining the certificate under Section 230-A of the Income Tax Act cannot be said to be a condition precedent for the enforceability of the decree and therefore cannot extend the period of limitation or suspend the period of limitation till such time as the certificate is obtained. The Executing Court has therefore rightly observed that whether the Decree Holder could have waited indefinitely for the Judgment Debtors to get the said certificate and whether the period of limitation would stand suspended till such time. In my view, the repeal of Section 230-A from the Statute Book in the year 2001, cannot aid the case of the Decree Holder as the decree was enforceable right from day one. 14. Now coming to the Judgment in Hameed Joharan's case (Supra), the Apex Court in the said Judgment held that for the purposes of Article 136 what ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of a consent decree passed in a Suit. In the said proceeding also, an issue of limitation was raised questioning the maintainability of the execution Petition. In the context of the above Petition, clause (5) of the consent decree passed in the said Suit is relevant and for ready reference is reproduced herein under: "(5) the defendant Nos.1 and 2 do obtain permission of the Board of Trustees of the Port of Bombay to the assignment of the lease of the said immovable property in favour of the Plaintiffs. The Plaintiffs undertake to this Hon'ble court to accept such terms and conditions that may be imposed by the Board of Trustees of the Port of Bombay and not to raise any objection thereto." The consent decree passed in the said case was dated 20-8-1983 and the Execution Application No.259 of 2002 was therefore undisputedly filed after the period of 12 years prescribed by Article 136. A submission was sought to be advanced on behalf of the Decree Holders/Plaintiffs in the said case that the said decree was a conditional decree and the same would became enforceable only upon happening of the event of obtaining permission by Bombay Port Trust for the assignment of the lea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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