M/s. Misra & Co. vs Damodar Valley Corporation

Siddhartha Chattopadhyay, J. - Doubting the correctness of the impugned order dated 06.07.2015 passed by the learned Civil Judge (Senior Division), Durgapur in Misc. Case No. 10 of 2012, the present petitioner/decree holder has come before this forum with a prayer to set aside the same. The said Misc. Case No. 10 of 2012 arose out of Money Execution Case No. 01 of 2006.

According to the petitioner, learned Court below could not consider entire factual aspects in its proper perspectives and had it been so in that case he would have got a favourable order.

Now factual aspect is required to be revisited. The present decree holder had filed an application under Section 8(2) of the Arbitration and Conciliation Act 1940 in terms of the agreement executed between that petitioner and the respondent and the said arbitration proceeding was registered as Misc. Case No. 32 of 1986. After a contested hearing the arbitrator has passed the order on 24.05.1988 and filed the said award before the learned Court below on 15.09.1989. The respondent challenges the order by putting their objection. Time to time the respondent had filed several applications for setting aside the award. Ultimately, on 16.03.1991 learned Court below made the award Rule of Court by dismissing the objection of the respondent and directed them to comply with the award dated 24.05.1988. On 13.04.1991 the respondent filed an application before the learned Court below for stay of the award on the ground that copy of the said application have never served upon the petitioner and so challenged the enforceability of the award so passed on 24.05.1988. After the award has been made Rule of Court on 16.03.1991 the respondent D.V.C. filed another application on 13.04.1991 praying for stay of the suit on the ground stated therein. That was pending for adjudication. Then the petitioner had to file an application for drawing up of the decree and the decree was drawn up on 21.02.2003. Thereafter he had filed the execution case on 30.06.2006. According to the petitioner, since the decree was drawn up on 21.01.2003 so the execution petition filed by him on 30.06.2006 is well within the period of limitation. Without adhering to the said facts and the chequered history of the proceeding, learned Executing Court has dismissed his application for execution holding that it is not maintainable. His specific averment is such that before the decree is drawn up period of limitation should not be counted. He further added that period of 12 years has to be reckoned from the date of drawing up of the decree.

As against this learned Counsel appearing on behalf of the opposite party had contended that there is no bar to file execution case even before drawing up of decree. He emphatically stressed on Order 20, Rule 6 A of the Civil Procedure Code, wherein it has been mentioned that by showing the judgment itself, appeal could be filed but that has not been done. Formal drawing up of decree shall not be an impediment to put the decree into execution.

On perusal of the impugned order, I find that the learned Executing Court has considered the applications, written objection and rival submission of both parties very meticulously and has come to the finding that the right of filing execution case accrued from the date of making the award as a Rule of Court and not from the date when the formal decree was drawn up. In support of his such contention he has referred to the decisions reported in (2008) AIR (SC) 429 (Manohar Shankar Nale v. Jaipal Singh Rajput), (2008) 8 SCC 92 (State Bank of India v. S.N. Goyal) and (2009) 9 SCC 689. On perusal of the aforesaid judgments, I find that the Hon''ble Apex Court in unequivocal manner held.."a decree or order is said to be enforceable when it is executable. For a decree to be executable, it must be in existence. A decree would be deemed to come into existence immediately on the pronouncement of the judgment. But it is fact of which judicial notice may be taken of that drawing up and signing of decree takes some time after the pronouncement of the judgment; the Code of Civil Procedure itself enjoins that the decree shall be drawn up expeditiously and in any case within 15 days from the date of judgment. If the decree were to bear the date when it is actually drawn up and signed then the date will be incompatible with the date of judgment. This incongruity is taken care of by Order 20, Rule 7 CPC which, inter alia, provides that the decree shall bear the date and the day on which judgment was pronounced."

...."Rule 6A enjoins that the last paragraph of the judgment shall state in precise terms the relief which has been granted by such judgment. It has fixed the outer time - limit of 15 days from date of pronouncement of judgment within which the decree must be drawn up. In the event of the decree not so drawn Rule 1 Order 41 CPC without filing a copy of decree appealed against and for that purpose the last paragraph of judgment shall be treated as decree. For the purpose of execution also, provision is made in clause (b) of the said sub-rule which says that so long as the decree is not drawn up the last paragraph of judgment shall be deemed to be decree. Clause (b) has enabled the party interested in executing the decree before it is drawn up to apply for a copy of last paragraph only, without being required to apply for a copy of the whole judgment. It further lays down that the last paragraph of the judgment shall cease to have the effect of decree for the purpose of execution or for any other purposes when the decree has been drawn."

...."It follows that the decree becomes enforceable the moment the judgment is delivered and merely because there will be delay in drawing up of the decree, it cannot be said that the decree is not enforceable till it is prepared. This is so because an enforceable decree in one form or other is available to a decree - holder from the date of the judgment till expiry of the period of limitation under Article 136 of Limitation Act."

In the decision reported in (2008) 8 SCC 92 Hon''ble Apex Court held that after passing the judgment and order of decree the Court became functus officio. It is axiomatic truth that under Article 136 of Limitation Act the period for applying for execution of any decree is 12 years from the date when decree becomes enforceable.

On perusal of the pleading of both parties and after hearing rival submission of the parties it appears to me that the decree was enforceable on 16.03.1991 and it expired on 16.03.2003. Application for execution was filed on 30.06.2006. In such circumstances, I have to say that there is no mistake committed by the learned Court below. The order passed by the learned Court below is quite unimpeachable. Due to such, with a heavy pain I am to say that on technical reason, the present petitioner is not entitled to take the fruits of the decree in his house. With this observation, this revisional application stands dismissed on contest. The impugned order passed by the Court below 06.07.2015 is hereby affirmed.

Let a copy of this judgment and L.C.R be sent down to the learned Court below for his information and taking necessary action in accordance with law.

Urgent certified photocopy of this Judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities.