IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No.189 of 2011 (CR No.363 of 2000). Judgment Reserved on: 31.03.2011 Date of decision: 12.05.2011 Lekh Raj … …Petitioner Versus Chunni Lal … …Respondent Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 Yes For the Petitioner: Mr.Bhupender Gupta, Senior Advocate with Ms.Charu Gupta, Advocate. For the Respondent: Mr.G.C. Gupta, Senior Advocate with Mr.Ashish, Advocate. Dev Darshan Sud,J. This revision has been preferred by the petitioner against the order passed by the learned District Judge, Chamba, rejecting the appeal preferred by him against the order of the learned Senior Sub Judge, Chamba, dismissing the petition under Order 21 Rule 97 of the Code of Civil Procedure (hereinafter referred to as `CPC’) in execution proceedings instituted by the respondent Chuni Lal son of Amar Nath. 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes 2 2. The facts necessary for determination of this petition are that Civil Suit No.181/63 was instituted in the Court of Senior Sub Judge, Chamba on 10.6.1963 by respondent Chuni Lal son of Amar Nath against Chuni Lal son of Haribhaj. A preliminary decree was passed by the learned Court on 9th September, 1963 directing partition of the suit property to be partitioned by a local Commissioner to be appointed. Thereafter, on 17.9.1964 the Court records:- ” Counsel freekan hazir hain. Freekan report Ex.X anusar bibhajan karne ko razi hain. Atah antim decree final decree anusar report Ex.X bhag har do freek di jave. Report Ex.X va naksha Ex.Y bhi part decree ka bhag schedule mana javega. Sunaya gaya. Misal dakhil daftar hove”. Transliteration:- “The counsel for the parties present. The parties agree that partition to be effected in accordance with the report Ex.X. Parties be granted land by final decree in accordance with the report Ex.X. Report Ex.X and plaint Ex.Y will form an part of the schedule. Announced. The petition be sent to the record room.” 3. Thereafter, a final decree was drawn up in terms of the order 17.9.1964. An application being CMA No.24 of 1992 was instituted by the respondent herein in which Chuni Lal son of Haribhaj was also a party praying that a final decree for partition be engrossed 3 on stamp paper. This application was decided by the learned Senior Sub Judge, Chamba, holding:- “4. … … …In this case the decree drawn on 17.9.1964 by the Court on a plain paper is no decree in the eye of law and thus it is to be treated as non-est and the proper and enforceable decree as contemplated by section 2(15) and section 35 of the Stamp Act would be in a non judicial paper of the requisite value and as and when this proper decree is drawn, it is to be treated as instrument of partition and enforceable decree. This being the case the application for engrossing the decree for partition, as prayed for, is allowed and as for the valuation of the property for determining the value of the stamp paper, there is no material on record so as to dispute the value of the share of the applicant in partition at the time of passing of the decree to the extent of Rs.2000/-, and by taking this value as it is the requisite value of stamps works out to be Rs.45/-. The applicant is directed to file the non-judicial stamp papers of the sum of Rs.45/- within a week, after which the final decree be drawn up according and after drawing the same, these papers be placed in the original file and be consigned to the record room.” Announced in the open Court This 19th day of September, 1992 Sd/- (J.L. Chauhan) Senior Sub Judge Chamba District Chamba, H.P.” 4 4. This decision was challenged in revision in this Court being CR No.211 of 1993. The Court held:- “8.4.1994. Present:- Shri Ashok Sharma for the petitioner Shri Chhabil Dass, for the respondent. Admit. To be heard today. In view of the decision reported in Bholanath Karmakar and Ors Vs. Madanmohan Karmakar and Ors. (AIR 1988 Calcutta 1), the view taken by the Court below is quite correct and does not call for any interference. The Civil Revision is dismissed. Sd/- (V.Ratnam) April 8, 1994 Chief Justice” 5. This is one part of the litigation. In the meantime, the petitioner herein purchased a part of the suit property by a registered sale deed dated 23.3.1997 from Chuni Lal son of Haribhaj, resident of Mohalla Surara. The respondent filed an execution petition for execution of the decree of the suit of 1963. This petition was registered as Execution Petition No.14 of 1994 and what was sought to be executed is decree dated 10.9.1992 in Civ.Misc.App.No.24/92 which is the application filed by the respondent herein for engrossing the decree on stamp paper which was disposed of by the order supra. It is thereafter that objections No.45/98 and 46/98 under Order 21 Rule 97 5 CPC were instituted in the Court of learned Senior Sub Judge, Chamba by Leela Devi and Lekh Raj, the petitioner herein. The learned trial Court dismissed the application holding that the property was purchased lis pendence and the provisions of Section 52 of the Transfer of Property Act were attracted. This order was challenged in appeal which was dismissed by the learned District Judge taking recourse to the provisions of Section 52 supra. 6. The present revision has now been instituted against the decision of the two Courts below. I may also notice that vide Ex.DH, the learned Senior Sub Judge, Chamba again ordered on 11.8.1993 that a final decree be passed. A number of points have been raised by the learned counsel appearing for the parties in support of their contentions. Learned counsel for the petitioner submits that the decision of the two Courts below cannot be sustained, more especially, in view of the fact that the decision of the Calcutta High Court in Bholanath Karmakar and Others vs. Madanmohan Karmakar and Others, AIR 1988 Cal.1, holding that a decree becomes executable only when it is engrossed on stamp papers. 7. In Hameed Joharan (Dead) and Others vs. Abdul Salam (Dead) by LRs and Others, (2001)7 SCC 573, the Supreme Court, specifically over ruling Bholanath Karmakar’s case, holds:- 6 “1. Availability of the plea of the 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 seque' 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). (p-579) 3. 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.) 4. 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 7 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 Article 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 hand 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 8 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 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." (pp-580-581) 9 10. 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 there 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 Dev v. Kennsington Stores, AIR 1972 Cal 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 10 to record our concurrence to the observations of the full Bench of the Bombay High Court in Subhash Ganpartrao Buty v. Maroti, AIR 1975 Bom 244. The Full Bench in the decision observed: (AIR p.250, para 7): "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 Parliament.” (p-582-583) 13. “… … … … … … …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 this 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 11 cannot but be said to be a fallacious argument… … … … … …” (pp-583-584) 14. 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. … … “ (p-584) 16. The observations thus in W.B. Essential Commodities Supply Corpn. (1999)8 SCC 315) lend 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. (p-585) 35. “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 the Stamp Act. … … … … …” (p-592) 36. “… … … … … … …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: 12 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 therefore. It may also be noticed that by the passing of a final decree, the rights stand crystallized and it is only thereafter its enforceability can be had, though not otherwise” (p-593) 37. As noticed above, the submissions of Mr. Mani apparently seemed to be very attractive specially in view of the 13 decision in Lokhande's case8. In Lokhande's case8 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. Koipalli Mahalakhsmamma v. Kotipalli Ganeswara Rao, 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 therefore any further.” (pp-593-594) 39. “… … … … … … … … … … the Special Bench decision of the Calcutta High Court in the case of Bholanath Karmakar 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. … … …” (p-595) 8. One other decision relied upon by learned counsel is Dr.Chiranji Lal (D) by LRs vs. Hari Das (D) by LRs, (2005)10 SCC 746 which reiterates the same principle. The Court holds:- “9. Therefore, Lokhande's case1 cannot be said to have laid down the proposition that the period of limitation would commence only on 14 engrossment of final decree of partition on stamp paper. 10. In W.B. Essential Commodities Supply Corporation's case2, the High Court decreed the suit filed for recovery of money on 8.3.1982. However, the decree was actually drawn up and signed by the judge on 9.8.1983. Application for execution of decree was filed by the decree holder on 5.6.1995. The executing court ordered execution of the decree. But, on appeal, the Division Bench of the High Court set aside the order and held that the execution petition was barred by limitation under Article 136 of the Act. The question before this Court was whether the period of limitation begins to run from the date the suit is decreed or from the date when the decree is actually drawn up and signed by the judge. 11. The Court held that a decree 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 and 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 because an enforceable decree in one form or the other is available to a decree holder from the date of the judgment till the expiry of the period of limitation under Article 136 of the Act. 12. In arriving at the abovenoted conclusion, the Court placed reliance on Order 20 Rule 15 6-A of Civil Procedure Code which provided that the last paragraph of the judgment should state in precise terms the relief which has been granted by such judgment. It fixed the outer time limit of 15 days from the date of the pronouncement of the judgment within which the decree must be drawn up. In the event of the decree not so drawn up, clause (a) of sub-rule (2) of Rule 6-A enabled a party to make an appeal under Rule 1 of Order 41 CPC without filing a copy of the decree appealed against and for that purpose the last paragraph of the judgment shall be treated as a 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 the judgment shall be deemed to be a decree. Clause (b) has thus enabled the party interested in executing the decree before it is drawn up to apply for a copy of the last paragraph only, without being required to apply for a copy of the whole of the judgment. 13. After holding that decree becomes enforceable the moment the judgment is delivered, which ultimately decided the question that arose for consideration in the case, the Court went further and observed that there may, however, be situations in which a decree may not be enforceable on the date it is passed. The Court gave three situations by way of illustrations to demonstrate when a decree may not be enforceable on the date it is passed. The third illustration is more pertinent to the present discussion, which is as follows: (SCC p.322, para-12) 16 "Thirdly, in a suit for partition of immovable properties after passing of preliminary decree when, in final decree proceedings, an order is 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." 14. This illustration according to the Court was necessitated because of the observations in Lokhande's case1. Since these observations have already been held to be obiter, this illustration is not of much significance in deciding the present matter and it cannot be said to be exposition of law. In addition to this, the decree involved in the case was a decree passed in a suit for recovery of money and not a decree passed in a suit for partition, hence the question of engrossing of the decree on stamp paper does not arise.” (pp-751-752) 9. The Court thereafter, referred to the decision in Hameed Joharan’s case and after noting the provisions of the Stamp Act held:- “24. A decree in a suit for partition declares the rights of the parties in the immovable properties and divides the shares by metes and bounds. Since a decree in a suit for partition creates rights and liabilities 17 of the parties with respect to the immovable properties, it is considered as an instrument liable for the payment of stamp duty under the Indian Stamp Act. The object of the Stamp Act being securing the revenue for the State, the scheme of the Stamp Act provides that a decree of partition not duly stamped can be impounded and once the requisite stamp duty along with