Doomakke and another vs Pollappe and Others

K.T. Thomas, J.—The Execution Petition filed on 5-3-1983 is resisted by some of the judgment debtors on the ground, inter alia, that it is barred by limitation. The decree is dated 3-11-1972 and hence it does not appear to be barred by limitation. But the ground of limitation is built up on the premise that the decree ought to have borne the date 10-8-1970 (According to the judgment debtors the final judgment was pronounced on the said date) and if time is counted from the said date, period of 12 years stood expired before filing of the execution petition. The Execution Court did not accept the said argument as it held that the date of final decree is the same as shown therein. This revision is in challenge of the order as per which the execution court overruled the objection preferred by those judgment debtors. Learned counsel complained that the lower court omitted to advert to two other contentions raised in the written objections. First is that the decree holders are not entitled to a charge on some of the items of the decree schedule properties as those items were purchased by the second petitioner in an auction held by the court, and the other contention is that the court which passed the decree had never transferred the same to the court where it is now being executed. The decree provides that the money portion in the decree would be a charge on the properties scheduled in the decree. The auction without prejudice to such charge would not affect, the executability of the decree in accordance with its terms. The decree was passed by the District Court. Tellicherry but as per order dated 20-9-1982, the decree was transferred to the Sub Court, Kasargod where it is now being executed. Thus, those two contentions did not merit consideration and that perhaps would have been the reason why those contentions were not urged, in the court below.

When considering the main objection that the Execution Petition is barred by limitation, the following facts of the case may also be of assistance. In a suit for partition, preliminary decree was passed as early as 21-2-1966. The plaintiff in the suit filed an application for passing final decree. On 10-8-1970, the said application was disposed of by a final judgment. The final decree was drawn up on engrossed stamp papers produced, but the final decree so drawn up was signed by the judge only on 3-11-1972. The final decree thus bears the said date and not the date of the final judgment Order XX Rule 7 of, the CPC (for short the Code) provides that the decree shall bear dale the day on which the judgment was pronounced. What is required is not that the decree shall bear the date of the judgment, but shall bear date "the day on which the judgment was pronounced". Section 2 (9) of the Code defines "Judgment" as the statement given by the Judge of the grounds of a decree. The date of the judgment need not necessarily be the day on which it is pronounced. Pronouncement of the judgment must be in open court (Vide Rule 1 (1) of Order XX). When it is pronounced, it shall be dated and signed by the judge in open court. The date so put is the date of pronouncement. If one date appears on the top of the judgment, it need not be taken as guarantee that the same is the day on which it is pronounced. The date of pronouncement must, therefore, depend upon the date which the judge has put at the time of pronouncement in open court. In this case, the decree bears the date 3-11-1972 and if regularity of judicial acts can be presumed, there is the presumption that the said date is the date of pronouncement of the above judgment since Order XX Rule 7 of the Code requires that the decree shall bear date, the day on which the judgment is pronounced.. That apart, the decree holder should not be prejudiced on account of any mistake which the court has committed in putting a date on the decree different from the date of pronouncement of the judgment. It is the decree which is executed and not the judgment, and hence the decree holder cannot be denied the right of computing the period of limitation from the date shown in the decree. This view has support from a learned Single Judge of the Patna High Court in Kali Prasad Sahu and Others Vs. Mt. Bibi Aziz Fatma and Others, . There is yet another angle which seems to be wider than the above discussion. Under Article 136 of the Limitation Act, 1963 (the present Limitation Act) time runs not from the date of the decree, but from the date when the decree becomes enforceable. This is the change which the present Limitation Act has made from corresponding article (Article 182) of the Limitation Act 1908 (old Limitation Act). Under the latter Article, period of limitation would have started running from the date of decree. Article 136 of the present Limitation Act provides a period of 12 years for executing any decree or order of any Civil Court and the said period begins to run from "when the decree or order becomes enforceable". All decrees cannot be enforced from the date of pronouncement of the judgment. Rule 6-A of Order XX of the Code gives sufficient indication that the date of pronouncement of judgment would be earlier than the date of drawing up of the decree. Generally, any decree is impossible of enforcement until the decree is formally drawn up and signed by the judge. The words "becomes enforceable" have a special significance, in that, a decree need not necessarily be capable of enforcement on the date of decree. A decree may become enforceable on a future date. Article 136 of the present Limitation Act should receive a liberal interpretation since the decree holder deserves help from court to reap the fruits of the decree. A Division Bench of the Madras High Court considered the scope of interpretation of Article 182 of the Old Limitation Act. ( Kotta Annapurnamma Vs. Makku Venkamma, ). It was held that the provision should receive a fair and not too technical a construction. The following observation was also made by the Bench, "Its language (language of the article) ought not be strained in favour of the judgment debtor who has not paid his debt and the words should be liberally interpreted in favour of the decree holder". Similar view has been taken by the Calcutta High Court in Akshoy Kumari Debi Vs. Nalini Ranjan Mukherjee and Others, . A liberal interpretation is thus given, when can a decree become enforceable? It is only when the decree is capable of execution that the decree becomes enforceable. It is by a legal fiction that date of decree and date of pronouncement of judgment are synchronised. together. Though it is deemed that the decree comes into existence on the date of pronouncement of the judgment, the reality cannot be overlooked that the decree comes into effectiveness only when it is drawn and signed by the judge. During the interregnum, the decree is only in a pupal or cocoon stage when it is incapable of enforcement. It is particularly so in the case of a decree for partition. A Division Bench of the Calcutta High Court said so in Tagore v. Mahatap ( ILR 32 Cal 483). "A decree for partition, to be operative, must be engrossed on stamp papers as required by the Stamp Act and until the judge signs the decree so engrossed, it cannot be said that the suit has terminated".

The present Execution Petition, therefore, cannot be thrown over board on the ground of limitation because from either of the angles it could be found to be within time. C. R. P. is accordingly dismissed without any order as to costs.