Banwari Narain Tewary vs Ramhari Narain Tewari

Meredith, J.—This is an appeal by the decree-holder against a decision of the learned Subordinate Judge of Ranchi, allowing an objection u/s 47, Civil P.C., in execution proceedings, and holding that execution of the decree in question was barred by limitation under Article 182, Limitation Act.

In order that the point that arises may be understood it is necessary to set out a number of dates. In the year 1927 the appellant instituted a partition suit, the subsequent relevant dates being as follows:

5-1-1929--A preliminary decree was passed on compromise.

9-11-1929--A dispute arose between the parties with regard to a question whether certain lands were raiyati or bakasht.

8-3-1930--A declaratory title suit was filed by the appellant for determining this question.

25-3-1930--In that suit an order was passed, staying further proceedings in the partition suit.

17-5-1930--The trial Court in the partition suit passed an order recording that the proceedings had been stayed.

31-3-1931--The declaratory suit was decreed, and it was held therein that the lands were raiyati lands. The same day the stay order was vacated.

2-5-1931--A final decree was passed in the partition suit.

8-3-1934--An appeal against the decision in the title suit was decreed by the District Judge, who held that the lands in question were bahasht, and so liable to partition.

10-12-1934--The plaintiff and some of the defendants in the partition suit filed a petition, praying that the drawing up of the final decree might be stayed.

26-2-1935--The Court passed order No. 76, to which I shall have to refer later. It was to the following effect: "No final decree has been prepared yet, as none of the parties put in judicial stamp for its preparation. The present petition is only in the nature of information to the Court in case any other party applies for preparation of a final decree. The Court cannot remain on watch for such a purpose. Let the petition be kept on the record, and no orders will be passed on it at present. The petitioner may revive the petition if there be any petition filed by any other party for preparation of a final decree in this suit."

2-2-1937--The High Court in second appeal reversed the decision of the District Judge in the title suit, and restored the decision of the Subordinate Judge.

10-5-1938--The plaintiff applied for drawing up the final decree in the partition suit.

21-11-1938--The Court called upon him to file the non-judicial stamp necessary under Article 48, Schedule 1, Stamp Act.

12-12-1938--The stamp was filed.

7-1-1939--The final decree was signed and sealed, bearing, of course, the date 2/5/31 when it was originally passed.

20-2-1940--The present execution case was filed.

The judgment-debtors took an objection that execution of the decree was barred, because under Order 20, Rule 7 the date of the decree was the date of the judgment, 2nd May 1931; limitation would run from that date and would be three years under Article 182, Limitation Act. The first application for execution was filed long after the expiry of that period. The learned Subordinate Judge has accepted this contention.

It is contended for the appellant, upon the authority of Maharaja of Darbhanga v. Homeshvar Singh AIR 1921 P.C. 31, that during a considerable portion of the period involved the final decree was incapable of execution, and consequently during that period limitation would not run. It was incapable of execution for the period while the decision of the District Judge stood, because it had been drawn up in accordance with the decision of the Subordinate Judge in the title suit to a different effect. It is quite arguable that the decree was not incapable of execution during that period, since it had been passed in clear and definite terms, and the decision in the title suit was purely declaratory, no injunction having been asked for. It is however unnecessary to pronounce any opinion on that point, because even assuming that the decree was incapable of execution, and assuming also, without necessarily agreeing, that in calculating limitation that period should be excluded, still it is apparent on an examination of the dates that the appellant came out of time. The decision of the District Judge was on 8th March 1934, and it was reversed by the High Court on 2nd February 1937. At the utmost, only this period could be excluded. Time began to run from 2nd May 1931, and it certainly ran up to 8th March 1934. It began to run again, upon any view, from 2nd February 1937, and continued to run up to 10th May 1938, when the application for final decree was made. The period from 2nd May 1931, to 8th March 1934, added to the period from 2nd February 1937, to 10th May 1938, amounts to more than three years. Execution was, therefore, barred by the time the application was made on 10th May 1938.

But, secondly, the appellant relies on Order No. 76, to which I have referred, as bringing the case within the provisions of Section 15, Limitation Act, upon the contention that this order amounted to an order of stay of further proceedings by the Court. No such view of this order is, in my opinion, possible. It was in no sense an order of stay. It will be recalled that an order of stay had previously been passed, and had been expressly vacated. The appellant was, therefore, quite aware that it would be necessary to obtain a definite order of further stay, but the Court has said in express words that it passed no orders on that petition, but merely filed it. Whether this order was right or wrong, it was certainly not an order of stay. It was open to the appellant to take further steps, and to insist upon the application being either allowed or rejected, but he did nothing. The appellant ought manifestly to have taken steps to secure a stay order, or to have applied for his final decree within time. But he slept over the matter, and even after the decision of the High Court he waited for more than a year before making any application for drawing up the final decree. Limitation is a matter of statute, and unless the appellant can bring his case under any definite provision of the Limitation Act, there is no use appealing to equitable considerations, and saying that things were not his fault; but in fact, as I have shown, in the present case there are no equities in his favour.

It is pointed out that u/s 33, Civil P.C., it is the duty of the Court to draw up a decree after judgment has been passed. In the present case, however, the Court never took steps to draw up any decree. On the contrary, the appellant was never called upon at all to file the necessary stamp until 21st November 1938. It is argued, therefore, that the Court was at fault, and ought to have called upon the plaintiff, within proper time, to file the stamp. This may be so, but, as I have said, the plaintiff was himself guilty of laches, whatever the Court may or may not have done, and even if he had an equitable case for relief, that cannot help him upon a question of limitation, unless he cart show that his case falls under some specific provision of the Limitation Act. The present case does not fall u/s 15, since, as I have held, Order No. 76 was not an order of stay. Admittedly, there is no other provision of the Limitation Act under which the appellant could be given relief.

A question almost identical with that arising in the present case came before the Calcutta High Court in Kishori Mohan Pal Vs. Provash Chandra Mondal and Others, . There it was held that the date of the decree is the day on which judgment is pronounced, and limitation begins to run from that date, although no formal decree can be drawn up in a partition suit until paper bearing a proper stamp under the Stamp Act is supplied to the Court. Their Lordships observed in that case: "The delay in signing the decree was due not to any fault of the Court or to any cause beyond the control of the parties but solely to the delay of the parties in supplying the requisite stamp paper. Any party desiring to have the decree executed might have furnished the stamped paper at any time, leaving the expense of providing it to be adjusted by the Court in connection with the costs of the execution." "The circumstances," they held, "disclosed ho ground for saying that limitation did not run from the date of the decree," that is to say, from the date of the judgment.

This decision is a direct authority upon the point raised in the present case. It must be held that limitation ran from 2nd May 1931, and even assuming that the period from 8th March 1934 to 2nd February 1937, could be excluded, still the remaining period, before any application was made for execution, amounted to much more than three; years. Execution was, therefore, barred under Article 182, as held by the learned Subordinate Judge. Section 3, Limitation Act, provides that "subject to the provisions contained in Sections 4 to 25 (inclusive), every'' suit instituted, appeal preferred, and application made, after the period of limitation prescribed therefore by Schedule 1, shall be dismissed, although limitation has not been set up as a defence." This is a mandatory provision, which leaves no room for equitable considerations. Either the application must be dismissed, or it must be shown that one of the provisions contained in Sections 4 to 25 is applicable. Of those sections the only section which has any bearing on the present case is Section 15, and, as I have held, that section cannot be applied upon the facts.

In the circumstances I would dismiss this appeal with costs.

Chatterji, J.

I agree.