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TMI Blog2001 (8) TMI 1384X X X X Extracts X X X X X X X X Extracts X X X X ..... t, follow to the end, or perform, and equivalent to the French executor", so that, when used in their proper sense, all three convey the meaning of carrying out some act or course of conduct to its completion (vide vol. 33- Corpus Juris Scundum). Lord Denning in Re Overseas Aviation Engineering (G.B) Ltd. : (L.R. 1963 : Ch. 24) has attributed a meaning to the word 'execution' as the process for enforcing or giving effect to the judgment of the court and stated : "The word "execution" is not defined in the Act. It is, of course, a word familiar to lawyers. "Execution" means, quite simply, the process for enforcing or giving effect to the judgment of the court : and it is "completed" when the judgment creditor gets the money or other thing awarded to him by the judgment. That this is the meaning is seen by reference to that valuable old book Rastill Termes de la Ley, where it is stated : "Execution is, "where Judgment is given in any Action, that the plaintiff shall "recover the land, debt, or damages, as the case is; and when any "Writ is awarded to put him in Possession, or to do any other "thing whereby the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 180 respectively. Significantly, Article 182 of the Limitation Act of 1908 provided a period of three years for the execution of decree. Be it clarified that since the reference to the 1908 Act would be merely academic, we refrain ourselves from recording the details pertaining to Article 182 save what is noted hereinbefore. It is in this context, however, the Report of the Law Commission on the Act of 1963 assumes some importance, as regards the question of limitation and true purport of Article 136. Before elaborating any further, it would be convenient to note the Report of the Law Commission which reads as below: "170. Article 182 has been a very fruitful source of litigation and is a weapon in the hands of both the dishonest decree-holder and the dishonest judgment debtor. It has given rise to innumerable decisions. The commentary in Rustomji's Limitation Act (5th Edn.) on this article itself covers nearly 200 pages. In our opinion the maximum period of limitation for the execution of a decree or order of any civil court should be 12 years from the date when the decree or order became enforceable (which is usually the date of decree) or where the decree or subsequent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... additional plaintiffs and on 23.2.1984, the same was ordered and the legal representatives of the original plaintiff were impleaded on 8.3.1984 and after incorporation of the names of the legal heirs in the suit register, an execution application was presented before the District Court on 21.5.1984. To have the factual score complete on this count, be it noted that in the mear while a Civil Revision Petition was filed before the High Court (C.R.P. No.2374 of 1984) against the order of impleadment but the same however, was dismissed on 8.10.1984 The records depict that on 11th December 1984, the execution petition was dismissed with a finding that since the same was filed beyond twelve years, the execution petition was barred by limitation. Subsequently, a Revision Petition was filed against said order (C.R.P. No. 2000 of 1985) and on 10.3.1989, the High Court however did set aside the order of the executing court and directed that the question of limitation should be considered afresh. The records further depict that on 13th July, 1989, the District Court held that the Execution Petition is not barred by limitation. As against the order of the District Court dated 13th July, 1989 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. It is in this context that a decision of the Calcutta High Court in the cast: of Biswapati Dev v. Kennsington Stores and Ors., AIR (1972) Calcutta P2) wherein the learned Single Judge in no uncertain terms expressed his opinion that there cannot be any ambiguity in the language used in the third column and the words used therein to wit : 'when the decree or order becomes enforceable' should be read in their literal sense. 'We do feel it expedient to lend our concurrence to such an observation of the learned Single Judge of the Calcutta High Court. The requirement of the Limitation Act in the matter of enforcement of a decree is the date on which the decree becomes enforceable or capable of being enforced-what is required is to assess the legislative intent and if the intent appears to be otherwise clear and unambiguous, question of attributing a different meaning other than the literal meaning of the words used would not arise. It is in this context, we also do feel it inclined to record our concurrence to the observations of the full Bench of the Bombay High Court in Subhash Ganpatrao Buty v. Maroti Krishnaji Dorlikar, AIR (1975) Bom. 244. The Full Bench in the deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnot possibly be said to be putting a stop to the period of limitation being run-no one can take advantage of his own wrong : As a matter of fact, in the contextual facts no stamp paper was filed until 26.3.1984-Does that mean and imply that the period of limitation as prescribed under Article 136 stands extended for a period of twelve years from 26th March, 1984? The answer if it be stated to be in the affirmative, would lead to an utter absurdity and a mockery of the provisions of the statute. Suspension of the period of limitation by reason of one's own failure cannot but be said to be a fallacious argument: though however suspension can be had when the decree is a conditional one in the sense that some extraneous events have to happen on the fulfillment of which alone it could be enforced-furnishing of stamped paper was entirely in the domain and power of the decree-holder and there was nothing to prevent him from acting in terms therewith and thus it cannot but be said that the dercee was capable of being enforced on and from 20th November, 1970 and the twelve years period ought to be counted therefrom. It is more or less in identical situation, this Court even five-decade ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Limitation Act, execution applications like plaints have to be presented in court within the time prescribed by the Limitation Act. A decree-holder, this court went on to record does not have the benefit of exclusion of the time taken for obtaining even 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 fine, this Court observed that if the time is reckoned not from the date of the decree but from the date when it is prepared, it would amount to doing violence to the provisions of the Limitation Act as well as of Order 20 and Order 21 Rule 11 C.P.C. which is clearly impermissible. The observations thus in W.B. Essential Commodities Supply Corpn. (supra) lends concurrence to the view expressed above pertaining to the question of enforceability of the decree as laid down in Article 136 of the Limitation Act. Incidentally, in paragraph 12 of the judgment in W.B. Essential Commodities Supply Corpn. (supra), this Court listed out three several situations in which a decree may not be enforceable on the date it is passed and in last of the situations, this Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... supplied). It is thus not a pronouncement of law as such but an exception recorded in certain situations, the words 'may not be' as emphasised are rather significant. The word 'May' in common acceptation mean and imply-'a possibility' depicting thereby availability of some fluidity and thus not conclusive. This aspect of the matter is required to be clarified by reason of the observations as laid down in the third situation (noticed above)-Needless to record that the third situation spoken of by this Court in the decision last noted obviously by reason of the judgment of this Court in Lokhande's case (supra). The factual situation of Shankar B. Lokhande's case (supra) however is completely different since there was 10 final decree at all but only a preliminary decree. Paragraph 10 of the report at page 419 makes the situation amply clear. Paragraph 10 reads as below : "10. As found earlier, no executable final decree has been drawn working out the rights of the parties dividing the properties in terms of the shares declared in the preliminary decree. The preliminary decree had only declared the shares of the parties and properties were liable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Court to pass the order as it has (noticed above) and as would appear from the recording in the order, to wit : "Therefore, executing court cannot receive the preliminary decree unless final decree is passed as envisaged under Order 20 Rule 18(2)." In that view of the matter, reliance on the decision of Lokhande's case (supra) by Mr. Mani appearing for the appellants herein cannot thus but be said to be totally misplaced, mote so by reason of the fact that the issue pertaining to furnishing of stamp paper and subsequent engrossment of the final decree thereon did not fall for consideration neither the observations contained in the judgment could be said to be germane to the issue involved therein. The factual score as noticed in paragraph 10 of the Report, [1995] 3 SCC 413 makes the situation clear enough to indicate that the Court was not called upon to adjudicate the issue as raised presently. The observations thus cannot, with clue deference to the learned Judge, but be termed to be an obiter dictum. It is in this context that we rather feel it inclined to record the observation of Russel L.J. in Rakhit v. Carty. (L.R. 1990 2 Q.B. 315) wherein at page 326/ 327 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able from the commencement of the defandant's tenancy. For my part, I am satisfied that this court erred in Kent v. Millmead Properties Ltd., 44 p & C.R. 353 and that, following the observations of Lord Donaldson of Lymington M.R. in Rickards' case, this court is justified in declining to follow Kent's case. As a matter of fact, a three Judge Bench of this Court in the case of Municipal Committee, Amritsar v. Hazara Singh, [1975] 1 SCC 794 has been pleased to record that on facts, no two cases could be similar and the decision of the court which was essentially on question of facts could not be relied upon as precedent, for decision of the other cases. Presently the fact situation in the decision of Lokhande (supra) and the matter under consideration are completely different, as such the decision in Lokhande cannot by any stretch be termed to be a binding precedent. In M/s. Amarnath Om Prakash and Ors. v. State of Punjab & Ors., [1985] 1 SCC 345, a three Judges bench of this Court in no uncertain terms stated : "...We consider it proper to say, as we have already said in other cases, that judgments of courts are not to be construed as statutes. To interpret word ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... levant provisions. A decision should be treated as given per incuriam when it is given in ignorance of the terms of a statute or of a rule having the force of a statute. So far as the order shows, no argument was addressed to the court on the question whether or not any direction could properly be made compelling the Municipal Corporation to construct a stall at a pitching site of a payment squatter. Professor P.J. Fitzgerald, editor of the Salmond on Jurisprudence, 12th Edn. Explains the concept of sub silentio at p. 153 in these words : A decision passes sub silentio, in the technical sense that has come to be attached to that phrase. When the particular point of law involved in the decision is not perceived by the court or present to its mind. The court may consciously decide in favour of one party because of point A, which it considers and pronounces upon. It may be shown, however, that logically the court should not have decided in favour of the particular party unless it also decided point B in his favour : but point B was not argued or considered by the court. In such circumstances, although the case had a specific outcome, the decision is not an authority on point B. Point ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... til paper bearing a proper stamp under Article 45 of the Stamp Act is supplied to the Court. Richardson, J. with his usual felicity of expression stated as below : "In this Court the learned Vakil for the respondents has said all that could be said for his clients. He has in particular called our attention to the fact that, although the decree is dated the 25th March 1914, it is expressed to be "passed in terms of Commissioner's report dated the 27th June 1914 which and the map filed along with it do form parts of the decree." The 25th March 1914 is, nevertheless, the correct date of the decree because that is the day on which the judgment was pronounced (order 20, rule 7, Civ. Pro. Code). The report of the Commissioner appointed to make the partition had already been received, the report was adopted by the judgment subject to certain variations and, in connection with those variations, certain directions of a ministerial character were given to the Commissioner which the Commissioner had merely to obey. The order sheet shows that the Commissioner submitted a report on the 27th June 1914. That report has not been placed before us. But I have no doubt that it did ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oint of time or is the decree contingent upon the happening of an event -i.e. to say the Court by its own order postpones the enforceability of the order - In the event of there being no postponement by a specific order of Court, there being a suspension of the decree being unenforceable would not arise. As a matter of fact, the very definition of decree in Section 2(2) of C.P. Code lends creoence to the observations as above since the term is meant to be 'conclusive determination of the rights of the parties.' On the next count Mr. Mani in support of the appeal very strongly contended that question as to when a decree for partition becomes enforceable cannot be decided in any event without reference to relevant provisions of Stamp Act. since a decree for partition is also an instrument of partition in terms of Section 2 (15) of the Indian Stamp Act 1899. For convenience sake, Section 2(15) reads as below : "2 Definitions.....In this Act, unless there is something repugnant in the subject or context- 15. "Instrument of partition" means any instrument whereby co-owners of any property divide or agree to divide such property in severally, and includes also a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed above the submission of Mr. Manu apparently seemed to be very attractive specially in view of the decision in Lokhande's case (supra). In Lokhande's case as noted above, this Court was not called upon to decide the true perspective of Article 136 of the Act of 1963 rather decided the issue in the peculiar fact situation of the matter on the basis of the Limitation Act of 1908 and in particular, Article 182. This Court was rather specific on that score and it is on that score only that the Andhra Pradesh High Court's Judgment in Smt. Kotipalli Mahalakshmamma v. Kotipalli Ganeswara Rao & Ors., AIR (I960) A.P. 54 was said to be the correct exposition of law. Article 136 however has a special significance and a very wide ramification as noted above and as such we need not dilate therefore any further. Turning attention on to Section 2(15) read with Section 35 of the Indian Stamp Act, be it noted that the Indian Stamp Act, 1899 (Act 2 of 1899) has been engrafted in the Statute Book to consolidate and amend the law relating to stamps. Its applicability thus stands restricted to the scheme of the Act. It is a true fiscal statute in nature, as such strict construction is re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... neither there is any difficulty in correlating the two statutes being operative in two different and specified spheres. Enforceability of the decree cannot be the subject matter of Section 35 neither the limitation can be said to be under suspension. The heading of the Section viz., "Instrument not duly stamped inadmissible in evidence etc", (emphasis supplied) itself denotes its sphere of applicability : it has no relation with the commencement of period of limitation. As noticed above 'executability' and 'enforceability' are two different concepts having two specific connotation in legal parlance. They cannot be termed as synonymous, as contended by Mr. Mani nor they can be attributed one and the same meaning. Significantly, the final partition decree, whenever it is drawn bears the date of the decree when the same was pronounced by Court and not when it stands engrossed on a stamp paper and signed by the judge and this simple illustration takes out the main thrust of Mr. Mani's submission as regards the applicability of the Stamp Act visa-vis the enforceability of the decree. The decree may not be received in evidence nor it can be acted upon but th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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