Full Judgment Text
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CASE NO.:
Appeal (civil) 5233 of 2001
Appeal (civil) 5234 of 2001
Special Leave Petition (civil) 19628 of 2000
Special Leave Petition (civil) 19629 of 2000
PETITIONER:
A.C. ARULAPPAN
Vs.
RESPONDENT:
SMT. AHALYA NAIK
DATE OF JUDGMENT: 13/08/2001
BENCH:
A.P.Misra, Umesh c Banerjee
JUDGMENT:
JUDGEMENT
BANERJEE, J.
Availability of the plea of limitation in the matter of
execution of decree has been the key issue in this appeal. The
word ’execution’ stands derived from the Latin "ex sequi,"
meaning, to follow out, 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 Secundum).
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 plaintiff should the better be satisfied
his debt "or damages, that is called a writ of
execution; and when he hath "the possession of the
land, or is paid the debt or damages, or "hath the
body of the defendant awarded to prison, then he
hath "execution." And the same meaning is to be
found in Blackman v. Fysh: [(1892) 3 Ch. 209,
217, C.A.], when Kekewich, J. said that execution
means the "process of law for the enforcement of a
judgment creditor’s right "and in order to give
effect to that right." In cases when execution was
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had by means of a common law writ, such as fieri
facias or elegit, it was legal execution: when it was
had by means of an equitable remedy, such as the
appointment of a receiver, then it was equitable
execution. But in either case it was "execution"
because it was the process for enforcing or giving
effect to the judgment of the court."
Before adverting to the factual aspect of the matter, a brief
re-capitulation of the various periods of limitation as prescribed
under the Limitation Act as engrafted in the Statute Book from
time to time would be convenient. Law of Limitation in India, as a
matter of fact, was introduced for the first time in 1859 being
revised in 1871, 1877 and it is only thereafter, the Limitation Act
of 1908 was enacted and was in force for more than half a century
till replaced by the present Act of 1963 (see in this context B.B.
Mitra: the Limitation Act 20th Ed.).
Presently, Article 136 of the Limitation Act 1963, prescribes
a period of twelve years for the execution of a decree other than a
decree granting a mandatory injunction or order of any civil court.
As regards the time from which the period of twelve years ought to
commence, the statute has been rather specific in recording that the
period would commence from the date of the decree or order when
the same becomes enforceable. We need not go into the other
situations as envisaged in the statute for the present purpose, save
what is noticed above. To put it shortly, it, therefore, appears that
a twelve year period certain has been the legislative choice in the
matter of execution of a decree. Be it noted that corresponding
provisions in the Act of 1908 were in Articles 182 and 183 and as
regards the statute of 1871 and 1877, the corresponding provisions
were contained in Articles 167, 168, 169, and 179, 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
the decree) or where the decree or subsequent
order directs any payment of money or the
delivery of any property to be made at a certain
date or at recurring periods, the date of the default
in making the payment or delivery in respect of
which the applicant seeks to execute the decree.
There is, therefore, no need for a provision
compelling the decree-holder to keep the decree
alive by making an application every three years.
There exists a provision already in section 48 of
the Civil Procedure Code that a decree ceases to
be enforceable after a period of 12 years. In
England also, the time fixed for enforcing a
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judgment is 12 years. Either the decree-holder
succeeds in realising his decree within this period
or he fails and there should be no provision
enabling the execution of a decree after that
period. To this provision an exception will have
to be made to the effect that the court may order
the execution of a decree upon an application
presented after the expiration of the period of 12
years, where the judgment-debtor has, by fraud or
force, prevented the execution of the decree at
some time within the twelve years immediately
preceding the date of the application. Section 48
of the Civil Procedure Code may be deleted and
its provisions may be incorporated in this Act.
Article 183 should be deleted....."
In pursuance of the aforesaid
recommendation, the present article has enacted in
place of articles 182 and 183 of the 1908 Act.
Section 48, Code of Civil Procedure 1908 has
been repealed".
The material facts pertaining to the issue however may be
delved into at this juncture.
The factual score records that a preliminary decree for
partition was passed on 8.6.1969 and a final decree thereon was
passed on 20.11.1970. The suit being a suit for partition, the
parties were under an obligation to furnish the stamp paper for
drafting of the final decree and it is on 28.2.1972, the District
Court, Nagapattinam in the erstwhile State of Madras (presently
Chennai) issued notice to the parties to furnish stamp papers and
granting time till 17.3.1972. The records depict that the decree-
holder, in fact, did not furnish any stamp paper by reason wherefor,
no decree was drafted or finalised. The factual score further
records that the original decree-holder died on 17.1.1977 and it is
on 26.7.1983 that an application was filed by the legal
representatives of the decree-holder to implead themselves as
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 meanwhile 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, a
Revision Petition was filed before the High Court by the legal heirs
of the first defendant challenging the said finding and the learned
Single Judge of the High Court in a very detailed and elaborate
judgment allowed the Civil Revision Petition and set aside the
order of the district court. Consequently, the execution petition
also stood dismissed and hence the Special Leave Petition before
this Court and the subsequent grant of leave by this Court.
As noticed earlier in this judgment, Article 136 of the
Limitation Act 1963 being the governing statutory provision,
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prescribes a period of twelve years when the decree or order
becomes enforceable. The word ’enforce’ in common acceptation
means and implies ’compel observance of’ (vide Concise Oxford
Dictionary) and in Black’s Law Dictionary ’enforce’ has been
attributed a meaning ’to give force or effect to; to compel
obedience to’ and ’enforcement has been defined as ’the act or
process of compelling compliance with a law, mandate or
command’. In ordinary parlance ’enforce’ means and implies
’compel observance of’. Corpus Juris Secundum attributes the
following for the word ’enforce’:
"ENFORCE. In general, to cause to be executed
or performed, to cause to take effect, or to compel
obedience to, as to enforce laws or rules; to
control; to execute with vigor; to put in execution;
to put in force; also to exact, or to obtain
authoritatively. The word is used in a multiplicity
of ways and is given many shades of meaning and
applicability, but it does not necessarily imply
actual force or coercion. As applied to process,
the term implies execution and embraces all the
legal means of collecting a judgment, including
proceedings supplemental to execution.
The past tense or past participle "enforced"
has been said to have the same primary meaning
as "compelled".
The language used by the legislature in Article 136 if read in
its proper perspective to wit: ’when the decree or order becomes
enforceable’ must have been to clear up any confusion that might
have arisen by reason of the user of the expression ’the date of the
decree or order which was used in the earlier Act. The intention
of the legislature stands clearly exposed by the language used
therein viz., to permit twelve year certain period from the date of
the decree or order. It is in this context that a decision of the
Calcutta High Court in the case of Biswapati Dey v. Kennsington
Stores and others (AIR 1972 Calcutta 172) 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 decision observed:
".........it is the duty of the Court to interpret the
language actually employed and to determine the
intention of the legislature from such language
and since there is no ambiguity about the
language actually employed, neither the
recommendation of the Law Commission nor the
aims and object as set out in the Statement of
Objects and reasons can be brought in aid or can
be allowed to influence the natural and
grammatical meaning of the Explanation as
enacted by the Parliament."
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Adverting however, to the merits of the matter at this
juncture and for consideration of the applicability of Article 136 in
the way as stands interpreted above, a short recapitulation of
certain relevant dates seems to be inevitable and as such the same
is set out hereinbelow:
Date Event
8th June, 1969 The preliminary decree passed in the
partition suit.
20th November, 1970 Final decree passed upon acceptance
of the report of the Commission.
28th February, 1972 Notice to furnish stamp paper on or before
17.3.1972 (be it noted that no stamp paper,
in fact, was furnished).
17th January, 1977 Original decree-holder died.
8th March, 1984 Legal representatives were impleaded.
21st May, 1984 Execution petition filed with the engrossed
stamp paper furnished on 26.3.1984.
Probably one could avoid reference to a list of dates in the
judgment, but the same has been incorporated by reason of the
peculiar fact-situation of the appeal under consideration.
Article 136 of the Act of 1963 prescribes as noticed above, a
twelve years period certain and what is relevant for Article 136 is,
as to when the decree became enforceable and not when the decree
became executable. The decision of the Calcutta High Court in
Biswapati’s case (supra) has dealt with the issue very succinctly
and laid down that the word ’enforceable’ should be read in its
literal sense. In the contextual facts, the final decree upon
acceptance of the report of the Commissioner was passed on
20.11.1970, while it is true that notice to furnish stamp paper was
issued on 28.2.1972 and the time granted was up to 17.3.1972 but
that by itself will not take it out of the purview of Article 136 as
regards the enforceability of the decree. Furnishing of stamped
paper was an act entirely within the domain and control of the
appellant and any delay in the matter of furnishing of the same
cannot 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 decree 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-decades ago in the
case of Yeswant Deorao Deshmukh v. Walchand Ramchand
Kothari (1950 SCR 852) has stated:
"...The decree was not a conditional one in the
sense that some extraneous event was to happen
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on the fulfillment of which alone it could be
executed. The payment of court fees on the
amount found due was entirely in the power of the
decree-holder and there was nothing to prevent
him from paying it then and there; it was a decree
capable of execution from the very date it was
passed.
Needless to record that engrossment of stamped paper would
undoubtedly render the decree executable but that does not mean
and imply however, that the enforceability of the decree would
remain suspended until furnishing of the stamped paper - this is
opposed to the fundamental principle of which the statutes of
limitation are founded. It cannot, but be the general policy of our
law to use the legal diligence and this has been the consistent legal
theory from the ancient times: Even the doctrine of prescription in
Roman Law prescribes such a concept of legal diligence and since
its incorporation therein, the doctrine has always been favoured
rather than claiming dis-favour. Law courts never tolerate an
indolent litigant since delay defeats equity. The Latin maxim
’vigilantibus non dormientibus jure subveniunt’ (law assists those
who are vigilant and not those who are indolent). As a matter of
fact, lapse of time is a species for forfeiture of right. Wood, V.C.
in Manby v. Bewicke (3 K. & J. 342 at 352) stated:
"... the legislature has in this, as in every civilized
country that has ever existed, thought fit to
prescribe certain limitations of time, after which
persons may suppose themselves to be in peaceful
possession of their property and capable of
transmitting the estates of which they are in
possession, without any apprehension of the title
being impugned by litigation in respect of
transactions which occurred at a distant period,
when evidence in support of their own title may
be most difficult to obtain."
Recently this Court in W.B.Essential Commodities Supply
Corporation v. Swadesh Agro Farming & Storage Pvt. Ltd. and
Another (1999 (8) SCC 315) had the occasion to consider the
question of limitation under Article 136 of the Limitation Act of
1963 and upon consideration of the decision in the case of
Yeshwant Deorao (supra) held that under the scheme of 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 observed:
"Thirdly, in a suit for partition of immovable
properties after passing of preliminary decree
when, in final decree proceedings, an order is
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passed by the court declaring the rights of the
parties in the suit properties, it is not executable
till final decree is engrossed on non-judicial stamp
paper supplied by the parties within the time
specified by the court and the same is signed by
the Judge and sealed. It is in this context that the
observations of this Court in Shankar Balwant
Lokhande v. Chandrakant Shankar Lokhande
(1995 (3) SCC 413) have to be understood. These
observations do not apply to a money decree and,
therefore, the appellant can derive no benefit from
them."
The third situation, as referred above, has been taken note of,
by reason of the decision of this Court in the case of Shankar
Balwant Lokhande (dead) by LRs. v. Chandrakant Shankar
Lokhande and another (1995 (3) SCC 413) wherein Ramaswamy,
J. speaking for the Bench came to a conclusion that:
"........After final decree is passed and a
direction is issued to pay stamped papers for
engrossing final decree thereon and the same is
duly engrossed on stamped paper(s), it becomes
executable or becomes an instrument duly
stamped. Thus, condition precedent is to draw up
a final decree and then to engross it on stamped
paper(s) of required value. These two acts
together constitute final decree crystallizing the
rights of the parties in terms of the preliminary
decree. Till then, there is no executable decree as
envisaged in Order 20, rule 18 (2), attracting
residuary Article 182 of the old Limitation Act."
Be it noticed that Lokhande’s decision (supra) was decided
against the judgment of the High Court recording a finding that
limitation for executing a final decree in a suit for partition starts
on the date on which the final decree is passed and not from any
subsequent date on which the parties supply the non-judicial stamp
for engrossing the final decree and when the court engrosses the
final decree on the stamp paper and signs it - this view of the High
Court was negatived and this Court came to a contra conclusion as
noticed hereinbefore.
The W.B. Essential Commodities Supply Corpn.’s decision
(supra) has been rather cautious in recording certain situations in
which a decree may not be enforceable on the date it is passed
(emphasis 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 no 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 to be
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partitioned in accordance with those shares by a
Commissioner to be appointed in this behalf.
Admittedly, no Commissioner was appointed and
no final decree had been passed relating to all."
Another significant feature which would render the decision
inapplicable in the contextual facts is the consideration of the
matter in the perspective of the 1908 Act (the old Act) and not the
Limitation Act of 1963. The language of Article 136 is clear,
categorical and unambiguous and it is the difficulty experienced in
the matter of interpretation of Article 182 "which has been a very
fruitful source of litigation", prompted incorporation of Article 136
in the Statute Book. The recommendation of the Law Commission
in the matter of incorporation of Article 136 thus assume a
positive and a definite role: Twelve year period certain has been
the express opinion of the Commission and by reason therefor
Section 48 of the Code stands deleted from the main body of the
sections, which incidentally provided for a twelve year period
certain for execution proceedings.
In this context, a further reference can be had from Mulla’s
Civil Procedure Code. As regards Section 48 the following is said
in Mulla’s C.P. Code:
"This Section has been repealed by Section
28 of the Limitation Act, 36 of 1963. In its
place a new provision, Article 136, has been
introduced which prescribes "for the
execution of any decree (other than a decree
granting a mandatory injunction) or order of
any civil court" a period of twelve years
"where the decree or order becomes
enforceable or where the decree or any
subsequent order directs any payment of
money or the delivery of any property to be
made at a certain date or at recurrent
periods, when default in making the
payment or delivery in respect of which
execution takes place:
Provided that an application for the
enforcement or execution of a decree
granting a perpetual injunction shall not be
subject to any period of limitation."
The period of twelve years prescribed by
Section 48 is retained under Article 136 and
is now the only period of limitation. It is
therefore no longer necessary to keep the
execution alive by successive applications
within three years for complying with the
original Article 182."
Significantly, the contextual facts itself in Lokhande’s case
(supra) has prompted this 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, more 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
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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 due 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 of the report it has been observed:
"Miss Foggin has now submitted to this court that
the decision in Kent’s case was indeed per
incuriam in that she submits that the judgment of
Ormrod L.J. with which Dunn L.J and Sir Sebag
Shaw agreed, made no reference to section 67 (3),
that, if the Court of Appeal had been referred to
that subsection and had had regard to its terms,
the decision would plainly have been different and
that consequently this court should not follow
Kent’s case. I have already expressed my own
views as to the proper construction of section
44(1) and the impact of section 67 (3).
In Rickards v. Rickards [1990] Fam. 194, 203
Lord Donaldson of Lymington M.R. said:
"The importance of the rule of stare decisis in
relation to the Court of Appeal’s own decisions
can hardly be overstated. We now sometimes sit
in eight divisions and, in the absence of such a
rule, the law would quickly become wholly
uncertain. However the rule is not without
exceptions, albeit very limited. These
exceptions were considered in Young v. Bristol
Aeroplane Co. Ltd. [1944] K.B. 718; Morelle
Ltd. v. Wakeling [1955] 2 Q.B. 379 and, more
recently, in Williams v. Fawcett [1986] Q.B.
604, relevant extracts from the two earlier
decisions being set out at pp.615-616 of the
report. These decisions show that this court is
justified in refusing to follow one of its own
previous decisions not only where that decision
is given in ignorance or forgetfulness of some
inconsistent statutory provision or some
authority binding upon it, but also, in rare and
exceptional cases, if it is satisfied that the
decision involved a manifest slip or error. In
previous cases the judges of this court have
always refrained from defining this exceptional
category and I have no intention of departing
from that approach save to echo the words of
Lord Greene M.R. in Young’s case, p.729, and
Sir Raymond Evershed M.R. in Morelle’s case,
p.406, and to say that they will be of the rarest
occurrence.
In my judgment, the effect of allowing this
appeal will produce no injustice to the plaintiff,
for the Rent Act 1977 provided him and his
advisers with ample opportunity to protect his
interests by the simple process of inspecting the
public register of rents before letting the flat to
the defendant. A fresh application for
registration or a fair rent could then have been
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made enabling that fair rent to be recoverable
from the commencement of the defendant’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 were
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 Parkash 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
words, phrases and provisions of a statute, it may
become necessary for Judges to embark into
lengthy discussions but the discussion is meant to
explain and not to define. Judges interpret
statutes, they do not interpret judgments. They
interpret words of statutes; their words are not to
be interpreted as statutes. In London Graving
Dock Co. Ltd. v. Horton : (1951 AC 737, 761),
Lord MacDermott observed:
The matter cannot, of course, be settled merely
by treating the ipsissima verba of Wills, J., as
though they were part of an Act of Parliament
and applying the rules of interpretation
appropriate thereto. This is not to detract from
the great weight to be given to the language
actually used by that most distinguished
Judge,.....
In Home Office v. Dorset Yacht Co. Ltd. [(1970)
2 All ER 294] Lord Reid said:
Lord Atkin’s speech (Donoghue v. Stevension,
1932 All ER Rep 1, 11) ....is not to be treated as
if it was a statutory definition. It will require
qualification in new circumstances.
Megarry, J. in (1971) 1WLR 1062 observed:
One must not, of course, construe even a
reserved judgment of even Russell, L.J. as if it
were an Act of Parliament.
And, in Herrington v. British Railways Board
[(1972) 2 WLR 537], Lord Morris said:
There is always peril in treating the words of a
speech or a judgment as though they were words
in a legislative enactment, and it is to be
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remembered that judicial utterances are made in
the setting of the facts of a particular case."
Further in Municipal Corporation of Delhi v. Gurnam Kaur
(1989 (1) SCC 101), this Court in paragraph 11 of the report
observed;
"11. Pronouncements of law, which are not part of
the ratio decidendi are classed as obiter dicta and
are not authoritative. With all respect to the
learned Judge who passed the order in Jamna Das
case (Writ Petition Nos.981-82 of 1984) and to
the learned Judge who agreed with him, we
cannot concede that this Court is bound to follow
it. It was delivered without argument, without
reference to the relevant provisions of the Act
conferring express power on the Municipal
Corporation to direct removal of encroachments
from any public place like pavements or public
streets, and without any citation of authority.
Accordingly, we do not propose to uphold the
decision of the High Court because, it seems to us
that it is wrong in principle and cannot be justified
by the terms of the relevant 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 the pitching site of a pavement
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 B is said to pass sub silentio."
In one of its latest judgment however this Court in Dr. Vijay
Laxmi Sadho v. Jagdish : [(2001) 2 SCC 247], though apparently
sounded a contra note but the safeguards introduced therein, does
not however create any problem for a decision in the matter under
consideration. Anand, C.J. while depricating the characterisation of
earlier judgment as ’per incuriam’ on ground of dissent observed:
"that a Bench of coordinate jurisdiction ought
not to record its disagreement with another Bench
on a question of law and it would be rather
appropriate to refer the matter to a larger Bench
for resolution of the issue".
Anand, C.J. however, has been extremely careful and cautious
enough to record "it is appropriate that the matter be referred to a
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larger Bench for resolution of the issue rather than to leave two
conflicting judgments to operate creating confusion" (emphasis
supplied).
In the contextual facts, the question of there being a
conflicting judgment as indicated hereinbefore or creation of any
confusion does not and cannot arise by reason of the fact that the
observations in Lokhande (supra) was on the peculiar set of facts
under the Limitation Act of 1908 - no Commissioner’s report was
available, neither any final decree passed , as such the issue before
the court was completely different having regard to the factual
state of the matter.
The decision has thus no manner of application in the
contextual facts neither the decision of this Court in W.B.Essential
Commodities supply Corpn.(supra) be of any assistance since
there was no exposition of law but a mere expression of a
possibility only, as such at best be termed to be an expression
of opinion incidentally. The latter decision thus also does not
render any assistance to the submission of Mr. Mani rather
lends credence to the observations of this Court as noticed
hereinbefore.
Incidentally, the Calcutta High Court in one of its very old
decision in the case of Kishori Mohan Pal v. Provash
Chandra Mondal and others (AIR 1924 Calcutta 351) while
interpreting Article 182 under the Limitation Act of 1908 has been
rather categorical in recording that the date of the decree under the
Article is the day on which the judgment is pronounced and
limitation begins to run from that day although no formal decree
can be drawn up in a partition suit until 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 the 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 no more than state that the Commissioner had
done what he was directed to do by the judgment
of the 25th March 1914. That judgment was the
final judgment in the suit and it was so regarded
by the Subordinate Judge who delivered it. The
decree is in accordance therewith. The directions
in the judgment were sufficient to indicate how
the decree should be framed, and there was no
need of any further judgment.
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 stamped
paper. Any party desiring to have the decree
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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 disclose no ground for
saying that limitation did not run from the date of
the decree as provided by article 182 of the
Limitation Act, and if authority be needed,
reference may be made to Golam Gaffar Mandal
v. Golijan Bibi (1898 (25) Cal.109) and Bhajan
Behari Shaha v. Girish Chandra Shaha [(1913) 17
C.W.N. 959].
I may add that much time and labour would
be saved if the court would resist such attempts as
the present to go behind the plain words of a
positive enactment."
Though several other old and very old decisions were cited
but in view of the pronouncement lately by this Court and as
discussed herein before, we are not inclined to deal with the same
in extenso, save however recording that contra view recorded
earlier by different High Courts cannot be termed to be good law
any longer.
The decision in Lokhande’s case (supra) cannot but be said to
be on the special facts situation and is thus in any event clearly
distinguishable.
Be it noted that the legislature cannot be sub-servant to any
personal whim or caprice. In any event, furnishing of engrossed
stamp paper for the drawing up of the decree cannot but be
ascribed to be a ministerial act, which cannot possibly put under
suspension a legislative mandate. Since no conditions are attached
to the decree and the same has been passed declaring the shares of
the parties finally, the Court is not required to deal with the matter
any further - what has to be done - has been done. The test thus
should be - Has the court left out something for being adjudicated
at a later point 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 the
C.P. Code lends credence 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 severalty, and includes also a
final order for effecting a partition passed by any
revenue-authority or any Civil Court and an award by
an arbitrator directing a partition."
At the first blush, the submissions seem to be very attractive
having substantial force but on a closer scrutiny of the Act read
with the Limitation Act, the same however pales into
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insignificance. Before detailing out the submissions of Mr. Mani
on the second count pertaining to the Stamp Act we ought to note
Section 35 of the Stamp Act at this juncture. Section 35 records
that "no instrument chargeable with duty shall be admitted in
evidence for any purpose by any person having by law or consent
of parties authority to receive evidence, or shall be acted upon,
registered or authenticated by any such person or by any public
officer, unless such instrument is duly stamped". Mr. Mani in
continuation of his submission, however contended that a plain
reading of the Section 35 would depict that the same creates a
three-fold bar in respect of unstamped or insufficiently stamped
document viz.,
I. That it shall not be received in evidence;
II. That it shall not be acted upon;
III. That it shall not be registered or authenticated
And it is on this score, it has been contended that the partition
decree thus even though already passed cannot be acted upon,
neither becomes enforceable unless drawn up and engrossed on
stamp papers. The period of limitation, it has been contended in
respect of the partition decree cannot begin to run till it is
engrossed on requisite stamp paper. There is thus, it has been
contended a legislative bar under Section 35 of the Indian Stamp
Act for enforceability of partition decree. Mr. Mani contended that
enforcement includes the whole process of getting an award as
well as execution since execution otherwise means due
performance of all formalities necessary to give validity to a
document. We are however unable to record our concurrence
therewith. Prescription of a twelve year certain period cannot
possibly be obliterated by an enactment wholly unconnected
therewith. Legislative mandate as sanctioned under Article 136
cannot be kept in abeyance unless the self same legislation makes a
provision therefor. It may also be noticed that by the passing of a
final decree, the rights stand crystalised and it is only thereafter its
enforceability can be had though not otherwise.
As noticed above, the submissions of Mr. Mani 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 1960 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 therefor 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 required to be
effected and no liberal interpretation. Undoubtedly, Section 2 (15)
includes a decree of partition and Section 35 of the Act of 1899
lays down a bar in the matter of unstamped or insufficient stamp
being admitted in evidence or being acted upon - but does that
mean that the prescribed period shall remain suspended until the
stamp paper is furnished and the partition decree is drawn thereon
and subsequently signed by the Judge? The result would however
be an utter absurdity: As a matter of fact if somebody does not
wish to furnish the stamp paper within the time specified therein
and as required by the Civil Court to draw up the partition decree
or if someone does not at all furnish the stamp paper, does that
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mean and imply, no period of limitation can said to be attracted for
execution or a limitless period of limitation is available. The intent
of the legislature in engrafting the Limitation Act shall have to be
given its proper weightage. Absurdity cannot be the outcome of
interpretation by a court order and wherever there is even a
possibility of such absurdity, it would be a plain exercise of
judicial power to repel the same rather than encouraging it. The
whole purport of the Indian Stamp Act is to make available certain
dues and to collect revenue but it does not mean and imply,
overriding the effect over another statute operating on a completely
different sphere.
Let us examine the matter from another perspective.
Limitation Act has been engrafted in the Statute Book in the year
1963 and the Indian Stamp Act has been brought into existence by
the British Parliament in 1899 though, however, the Government
of India Adoptation of Indian Laws Order 1937, the Indian
Independence Adoptation of Central Acts and Ordinance Order
1948 and the Adoptation of Laws Order 1950 allowed this fiscal
statute to remain on the statute book. The legislature while
engrafting 1963 Act, it is presumed and there being a golden canon
of interpretation of statutes, that it had in its mind the existing
Indian Stamp Act before engrafting the provisions under Article
136. A latter statute obviously will have the effect of nullifying an
earlier statute in the event of there being any conflict provided
however and in the event there is otherwise legislative
competency in regard thereto. As regards the legislative
competency, there cannot be any doubt which can stand focussed
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
vis-Ã -vis, the enforceability of the decree. The decree may not be
received in evidence nor it can be acted upon but the period of
limitation cannot be said to remain under suspension at the
volition and mercy of the litigant. Limitation starts by reason of
the statutory provisions as prescribed in the statute. Time does not
stop running at the instance of any individual unless, of course, the
same has a statutory sanction being conditional, as more fully
noticed hereinbefore: the Special Bench decision of the Calcutta
High Court in the case of Bholanath Karmakarand others v.
Madanmohan Karmakar (AIR 1988 Calcutta 1), in our view has
completely misread and misapplied the law for the reasons noted
above and thus cannot but be said to be not correctly decided and
thus stands overruled. Undoubtedly, the judgment of the Calcutta
High Court has been a very learned judgment but appreciation of
the legislative intent has not been effected in a manner apposite to
the intent rather had a quick shift therefrom by reason wherefor,
the Special Bench came to a manifest error in recording that the
period of limitation for execution of a partition decree shall not
begin to run until the decree is engrossed on requisite stamp paper.
On the wake of the aforesaid we are unable to record an
affirmative support to Mr. Mani’s submission that Section 35 read
with Section 2 (15) of the Indian Stamp Act 1899 would over-run
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the Limitation Act of 1963 and thus give a complete go-bye to the
legislative intent in the matter of incorporation of Article 136.
The appeal, therefore, fails and is dismissed. No order as to
costs.