CIVIL REVISION No.2105 OF 2000 --------- Against part of the order dated 23.9.2000 passed by the Subordinate Judge-IV, Darbhanga in Title Execution Case No. 1 of 1998 ----------- RAM LAKHAN SAHANI, son of Late Thakoor Sahani, resident of Mohalla Bakerganj, Town Laheriasarai, P.S. Laheriasarai, District Darbhanga …(Plaintiff decree-holder) ------------------------ Petitioner Versus 1. LAKSHMI SAHANI 2. HARI SAHANI 3. RAJ KUMAR @ RAMA SAHANI 4. KAMAL SAHANI 5. BANARSI SAHANI 6. SHANKER SAHANI, All sons of Late Jhauli Sahani, resident of Mohalla Rahamganj, P.S. Laheriasarai, District Darbhanga 7. SAGAR DEVI, wife of Chaitu Sahani, resident of Mohalla Kabir Chawk, P.S. Sadar, District Darbhanga -----(Defendants-Judgment-debtor 5 to 5f-Objector) -----------------Opposite Party 1st set. 8. RAJ KUMAR SAHANI 9. SHIV KUMAR SAHANI Both sons of Late Thakko Sahani 10. SUDAMA DEVI, wife of Late Thakko Sahani, All resident of Mohalla Bakerganj, Town Laheriasarai, P.S. Laheriasarai, District Darbhanga 11. SHRAWAN SAHANI, son of Laxmi Sahani 12. Laxmi Sahani, son of Late Devan Sahani, Both resident of Mohalla Belwaganj, P.S. Laheriasarai Town, District Darbhanga 13. Saro Devi, wife of Suresh Sahani 14. Sushila Devi, wife of Vishwanath Sahani, Both resident of Mohalla Bhathiyari Sarai, P.S. Town, District Darbhanga 15. Inder Mallahin, daughter of Late Keso Sahani, resident of Mohalla Rahamganj, P.S. Laheriasarai, District Darbhanga …..(Defendants Judgment-Debtors) ………….. Opposite Party 2nd Set ----------- For the petitioner : Mr. Sukumar Sinha, Sr. Advocate For the Opp.Parties: None ----------- 2 P R E S E N T THE HON'BLE MR. JUSTICE RAMESH KUMAR DATTA R.K.Datta, J. The Civil Revision application is directed against that part of the order dated 23.9.2000 passed by Subordinate Judge-IV, Darbhanga in Title Execution Case No. 1 of 1998 by which he has held the final decree dated 4.6.1982 passed in Title Suit No. 212 of 1971 as not executable being time barred according to Article 136 of the Limitation Act, 1963. 2. The facts relevant for the decision in this revision application are not in dispute and may be briefly enumerated. Title Suit No. 212 of 1971 was filed by the petitioner Ram Lakhan Sahani claiming one-fifth share in the lands mentioned in the schedule of the plaint. After some initial hiccups ultimately all the parties and their lawyers joined in a compromise petition which had been filed on 27.1.1977 and by judgment dated 27.7. 1977 it was ordered that let the compromise be accepted and the suit be disposed of in terms of the compromise and that the compromise petition shall form part of the decree and the same be drawn up. On 23.1.1977 the decree was sealed and signed. Thereafter on 31.5.1982 the plaintiffs filed an application to prepare the final decree and stamp was also filed for its preparation; the 3 final decree was prepared on 4.6.1982 and finally it was sealed and signed. On 4.6.1982 the defendant nos. 5 and 7 filed an application to stay the further proceedings but the final decree having been sealed and signed the application was kept on the record. 3. On 31.5.1982 the defendants Surji Malahin, Paro Malahin and Inder Malahin defendant nos. 5 to 7 in Title Suit No. 212 of 1971 filed Title Suit No. 75 of 1982 for a declaration that the compromise decree passed in Title Suit No. 212 of 1971 is not binding upon them and is void and illegal and in consequence the partition of the properties defining the share of the plaintiffs as one-forth share each in the suit lands and also for a declaration of title over 5 Katha of land from North out of 10 Katha in Khata No. 22, Kheshra No.1. The defendants appeared and contested the suit and by judgment dated 22.2.1992 the Trial Court held that the compromise decree is valid and binding on the parties and further that the said suit was barred under the provisions of Order 23 Rule 3A. The suit was accordingly dismissed. On 5.3.1992 the decree was signed. The plaintiffs thereafter filed First Appeal No. 337 of 1992 before this Court. On 21.5.1998 the decree holder filed Execution Case No. 1 of 1998 for execution of two decrees dated 4.6.1982 passed in Title Suit No. 212/1971 and 5.3.1992 passed in Title Suit No. 75/1982. The execution was being claimed for possession as per the decree in the earlier Title Suit No. 212 of 1971 and for cost as per the decree passed in Title Suit No. 75 of 1982. The 4 plaintiffs of the Title Suit No. 75 of 1982 sought to obtain stay of execution from this Court which was dismissed as withdrawn on 18.8.1998 with the observation to raise the maintainability of the proceeding before the executing Court. Thereafter an objection was filed by judgment-debtor No. 5 Surji Malahni to reject the execution case as not maintainable. On 3.6.2000 the Executing Court directed to deliver possession against which C.R. No. 1143 of 2000 was filed which was disposed of by order dated 6.9.2000 with the direction to keep the order of executing Court in abeyance. In C.R. No. 755 of 2000 this Court had earlier disposed of the matter on 22.8.2000 directing the Executing Court to dispose of the objection regarding limitation on the basis of dates which were already on record. 4. Thereafter by the impugned order dated 23.9.2000 passed by the learned Subordinate Judge IV, Darbhanga the Title Execution Case No. 1 of 1998 was dismissed so far as execution of decree passed in Title Suit No. 212 of 1971 was concerned but it was directed to proceed with the execution for cost in the decree passed in Title Suit No. 75 of 1982. 5. Mr. Sukumar Sinha learned Senior Counsel for the petitioner has sought to assail the order of the Executing Court on three broad grounds. The first challenge is based upon the provisions of Section 14(2) of the Limitation Act. It is submitted that the decree- holder is entitled to exclusion of the period spent in bona fide litigation 5 pending before the Court at the instance of the judgment- debtor dragging the decree-holder and compelling him to fight the litigation and thus if the period from 31.5.1982, the date on which Title Suit No. 75 of 1982 was instituted, till 22.2.1992 on which date it had been dismissed by the trial Court, is excluded then the filing of execution case No. 1 of 1998 on 25.5.1998 would come within 12 years period of limitation provided by Article 136 of the Limitation Act. 6. Secondly, learned counsel has sought also to argue that provisions of Section 15(1) of the Limitation Act would also enure to the benefit of the petitioner since the filing of the Title Suit No. 75 of 1982 had jeopardized the very existence of the compromise decree dated 4.6.1982. 7. Lastly, it is argued by learned counsel that in terms of the provisions of Article 136 itself even without the assistance of Sections 14 and 15 of the Limitation Act, it must be held that upon filing of Title Suit No. 75 of 1982 the matter decided by the final decree dated 4.6.1982 becomes sub judice before the Court and the enforceability of the decree dated 4.6.1982 was thereby jeopardized; hence the limitation cannot begin to run until the subsequent suit was disposed of. It is contended that a compromise decree can be challenged by filing an appeal or an application or a suit. It is submitted that all the three would have the ultimate result of putting the compromise decree in jeopardy until the final decision of the Court in 6 the appeal, application or suit. It is argued that there are any numbers of decisions that limitation will not continue to run until the order passed in appeal since the original decree shall merge in appellate decree and thus limitation of 12 years prescribed by Article 136 would run from the date of the order passed by the appellate Court. It is urged that similar principle would apply and ought to apply when instead of filing an appeal against the compromise decree, the same is challenged by filing a suit to set aside the compromise decree since the effect of the decree in the said suit would be precisely the same as that of an appeal and therefore, in the present matter also limitation ought not to be taken to run until the subsequent suit itself has been disposed of. It is submitted that the judgment-debtor himself having chosen to file a suit, he cannot derive any advantage on that ground of taking a plea of limitation. 8. In support of the aforesaid propositions learned counsel relies upon various decisions of the Supreme Court and this Court and in particular upon the decision of the Privy Council in the case of Nagendra Nath Dey and others Vs. Suresh Chandra Dey and ors: AIR 1932 Privy Council 165, which has been cited with approval in subsequent decisions of the Supreme Court also. The relevant part of the said decision relied upon by learned counsel is quoted below: “Their Lordships think that nothing would be gained by discussing these varying authorities in detail. They think that the question must be decided upon the plain words of the article; 7 “where there has been an appeal,” time is to run from the date of the decree of the appellate Court. There is, in their Lordships‟ opinion, no warrant for reading into the words quoted any qualification either as to the character of the appeal or as to the parties to it; the words mean just what they say. The fixation of periods of limitation must always be to some extent arbitrary, and may frequently result in hardship. But in construing such provisions equitable considerations are out of place, and the strict grammatical meaning of the words is, their Lordships think, the only safe guide. It is at least an intelligible rule that so long as there is any question sub judice between any of the parties those affected shall not be compelled to pursue the so often thorny path of execution which, if the final result is against them, may lead to no advantage. Nor in such a case as this is the judgment-debtor prejudiced. He may indeed obtain the boon of delay, which is so dear to debtors, and if he is virtuously inclined there is nothing to prevent his paying what he owes into Court.” 9. Learned counsel was at pains to emphasize that part of the observations which says that so long as there is any question sub judice between any of the parties, those affected shall not be compelled to pursue the so often thorny path of execution which, if the final result is against them, may lead to no advantage. It is submitted that the petitioner could not have been compelled to pursue thorny path of execution in view of Title Suit No. 75 of 1982 filed by the judgment-debtor for setting aside the compromise decree as on the filing of the same the matter became sub judice between the parties and if the subsequent title suit had been decided against the petitioner then 8 the compromise decree itself would have been set aside and nothing would have remained to be executed and thus the petitioner rightly awaited for the decision of the said case before filing the execution case no. 1 of 1998. 10. It is submitted by learned counsel that the decision of the Supreme Court in the case of Ratansingh Vs. Vijaysingh and others: AIR 2001 SC 279, which had not applied the Privy Council decision in the case of Nagendra Nath Dey (supra) on the ground that it related to the scope and interpretation of Article 182 of the Old Limitation Act and in view of the legal position contained in Article 136 of the Limitation Act, 1963, has been held to be not good law in the subsequent decision in the case of Shyam Sunder SharmaVs. Pannalal Jaiswal & ors : AIR 2005 SC 226. Learned counsel also relies upon several decisions of this Court which have followed the above decision of the Privy Council and applied it even with respect to the provisions of present Article 136 of the Limitation Act, 1963. The first case is the Full Bench decision in Jokhan Rai Vs. Baikunth Singh: AIR 1987 Patna 133, in para 7 of which it has been held as follows:- “It seems to me that the question here is so well covered by principle; language of the statute; and binding precedent; that it would be somewhat wasteful to launch on too elaborate a dissertation. Nevertheless the silent and axiomatic aspects of the issue may be briefly recapitulated. Perhaps what first meets the eye is the fact that the language of Art. 136 talks of a decree and its enforceability. It does not limit or constrict 9 itself to the original decree alone. The words employed are “any decree” and “when the order becomes enforceable”. To read Art. 136 as confined to the decree of the trial Court or the original decree alone would be doing violence to the language of the statute by unceremoniously inserting the words “trial Court” or „original‟ along with the words “decree or order” wherever used in the said article. Thus, even on a plain and meaningful reading of Art. 136 as now enacted, it is manifest that it cannot be read as a decree of the trial Court or the original decree alone. Consequently, the somewhat hypertechnical harping of the learned counsel for the petitioner on the stand that the word „decree‟ must be construed as the original decree or that of the trial Court must be categorically rejected.” To the same effect are the separate decisions of two learned Single Judges of this Court in the cases of Nawal Kishore Patel Vs. Most. Indrapari Devi: 2002(4) PLJR 272 and Uma Shankar Sharma Vs The State of Bihar & anr : AIR 2005 Patna 94. 11. On the question of applicability of Sections 14 and 15 of the Limitation Act learned counsel relies upon a decision of the Supreme Court in the case of Union of India and others Vs. West Coast Paper Mills Limited and another: AIR 2004 SC 1596. In the said case revision of railway freight was challenged by the respondent and the Railway Rates Tribunal declared the revised freight as unreasonable and SLP against the same was filed by the Railways which was ultimately dismissed. Thereafter the respondents filed a suit for refund of excess freight whereupon the plea of limitation was raised by the 10 Railways on the ground that cause of action for filing the suit arose immediately after the judgment of the Tribunal, and further that since no stay had been granted against the decision of the Tribunal the period during which the matter was pending before the Supreme Court would not be excluded in computing the period of limitation. It was held by the Supreme Court that once an appeal is filed before the Supreme Court and the same is entertained, the judgment of the High Court or the Tribunal is in jeopardy and unless the subject-matter of the lis is determined by it, it cannot be said to have attained finality. In such circumstances the grant of stay may not be of much relevance once special leave is granted and the Supreme Court decides to hear the matter. It was thus held that the starting point of limitation for filing a suit for the purpose of recovery of the excess amount of freight illegally realized would begin from the date of the order passed in appeal before the Supreme Court and the respondents were entitled to benefit of Sections 14 and 15 of the Limitation Act, 1963. In the said decision it was also held that an appeal is in continuation of a suit and the decree becomes executable only if the same is disposed of by the Appellate Court. 12. Learned counsel also refers to the subsequent decision of the Supreme Court between the same parties in the case of Union of India & Ors. Vs. West Coast Paper Mills & anr.: AIR 2004 SC 3079 in which the respondent-Paper Mill after the decision of the 11 Supreme Court approached the High Court in its writ jurisdiction for a direction to the Railway Administration to refund the amount of freight which had already been held as not entitled to recover but the High Court not being inclined to grant such relief in exercise of its writ jurisdiction left it open to the Paper Mill to seek its remedy by way of civil suit. The plea of limitation was raised regarding the filing of the suit in which the paper Mill claimed that the period during the pendency of the writ proceeding is liable to be excluded for computing the period of limitation under Section 14(2) of the Limitation Act. The High Court as well as the Supreme Court held that it was entitled to such exclusion and thus the suit filed was within the period of limitation. 13. On the basis of the aforesaid decisions learned counsel for the petitioner urges that liberal interpretation of the provisions of the Limitation Act should be applied so as not to defeat the rights which had accrued in favour of the decree holder on the plea of limitation raised by the judgment-debtor that too on account of the suit filed for setting aside of the earlier compromise decree filed by the judgment-debtor which had put the said compromise decree in jeopardy. The matter being sub judice between the parties until the decision of the civil suit the period of limitation would run from the date of the decree in the subsequent civil suit or alternatively the petitioner would be entitled to exclude the period during which he was 12 contesting the subsequent Title Suit No. 75 of 1982 for the purpose of the Execution case No. 1/98 and in either of the given case the execution case was within the period of 12 years limitation provided by Article 136 of the Limitation Act. 14. Although the contesting opposite parties had entered appearance in the present matter but no one appeared to oppose the revision application on their behalf despite several opportunities granted by this Court. 15. On a consideration of the various submissions of learned counsel for the petitioner based particularly on the decision of the Privy Council in Nagendra Nath Dey‟s case (supra) at first sight the arguments of learned counsel appear quite attractive. However, learned counsel was unable to cite a single case in support of the proposition that the principle laid down in the case of an appeal from or review of a decree would apply with equal vigor with respect to a suit to set aside the decree sought to be executed. The other line of decisions of the Supreme Court as well as of this Court, on the other hand, would go to show that such a plea is not available when the case is not one of an appeal from or review of the decree rather the same pertains to proceedings of the nature as in the present case. 16. For a proper appreciation of the matter it would be useful to quote the relevant provisions of the Limitation Act, 1963 with respect to execution so far as it concerns the matters in issue in the 13 present case. Article 136 and Sections 14(2) and 15(1) are set out as follows:- 136. For the execution of any decree (other than a decree granting a mandatory injunction) or order of any civil court. Twelve years When 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 recurring periods, when default in making the payment or delivery in respect of which execution is sought, 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. Section 14(2): In computing the period of limitation for any application the time during which applicant has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a Court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. Section 15. (1) – In computing the period of Limitation of any suit or application for the execution of a decree the institution or execution 14 of which has been stayed by injunction or order, the day on which it was issued or made, and the day on which it was withdrawn shall be excluded. 17. Since the sheet anchor of the petitioner‟s case is based upon the decision of Privy Council in the case of Nagendra Nath Dey (supra) which was decided under Article 182 of the Indian Limitation Act, 1908, it would be useful to refer to the relevant part of the said Article. 182. For the execution of a decree or order of any civil Court not provided for by Art. 183 or by Sec. 48 of the Code of Civil Procedure, 1908. Three years, or, where a certified copy of the decree or order has been registered, six years. (1) The date of the decree, or order, or (2) (where there has been an appeal) the date of the final decree or order of the appellate Court, or the withdrawal of the appeal, or (3) (where there has been a review of judgment) the date of the decision passed on the review or …………………” 18. It will be seen from the phraseology of Article 182 of the Act of 1908 as compared with Article 136 of the present Limitation Act, 1963 that apart from extending the period of limitation in the execution of a decree from three years in general to 12 years, while under the earlier Act it was provided that limitation would run 15 from the date of the decree or order or “where there has been an appeal from the same” from the date of final decree or order of the appellate Court or the withdrawal of the appeal and where there has been review of the judgment , the date of the decision passed in review, whereas under the present Act the words simply used are that the time begins to run when the decree or order becomes enforceable. Although the words used appear to be quite different but in essence it does not appear that any change has been made in the law as to the starting point from which the limitation is to be counted. This is also evident from the various decisions cited even by learned counsel for the petitioner and solitary decision of the Supreme Court in Ratan Singh‟s case (supra) which sought to take a different view of the matter, has been held as not good law in Shyam Sundar Sharma‟s case (supra). The issue therefore boils down as to the extent of the application of the observations of the Privy Council in Nagendra Nath Dey‟s case (supra) with regard to the parties not being compelled to pursue the so often thorny path of execution so long as there is any question sub judice between any of the parties which if the final result is against them, may lead to no advantage. 19. An early decision of the Supreme Court of a five Judges Bench in the case of Bhawanipore Banking Corporation Ltd. Vs. Gouri Shankar Sharma: AIR 1950 Supreme Court 6, may be usefully referred to. In that case after the judgment-debtor‟s application 16 under Section 36 of the Bengal Money-lenders Act for re-opening the preliminary mortgage decree was dismissed for default, a final decree