HON’BLE SRI JUSTICE B. PRAKASH RAO C.R.P.No. 2269 of 2006 Date: 12-11-2010 Between: Smt. Safderunnisa Begum and two others ….. petitioners and Sri Venkateswara Corporation Respondent HON’BLE SRI JUSTICE B. PRAKASH RAO C.R.P.No. 2269 of 2006 ORDER: The petitioners are the judgment debtors 1, 3 and 4, whereas the respondent is the decree holder in the execution proceedings, which have been laid in pursuance of the decree passed in O.S.No.1187 of 1993 on the file of the First Senior Civil Judge, City Civil Court at Hyderabad. 2. In this Revision Petition, filed under Section 115 of C.P.C., the petitioners seek to assail the order, dated 25-09-2003 dismissing the petition filed by them in E.A.No.120 of 2003 in E.P.No.48 of 2003 filed in the said suit, where the petitioners, by invoking Section 47 of C.P.C., sought for a decision on all the questions arising out of the decree passed in the above suit and to hold that the said decree is nullity, cancelled and unenforceable in the eye of law. 3. Heard Sri K.V. Satyanarayana, learned senior counsel appearing on behalf of the petitioners and Sri B. Adinarayana Rao, learned counsel appearing on behalf of the respondent. 4. Briefly the facts, which gave rise to the present proceedings, are that the execution proceedings have been laid by the respondent, in pursuance of the compromise decree, dated 06-12- 1999 in the said suit, seeking the relief to execute and register the sale deed in respect of ‘D’ schedule property and in case of failure of the petitioners, the Court to execute the sale deed in his favour. The subject matter of the property consists an extent of 13770 square yards equivalent to 11517.6 square meters, inclusive of 3150 square yards of protected area declared under the provisions of the Urban Land (Ceiling and Regulation) Act, 1976 bearing M.No.6-2-121 situated at Lakadikapool, Khairtabad, Hyderabad. 5. There are in all fifteen judgment debtors of which the objection was raised together by judgment debtor No.1 on her behalf and also on behalf of judgment debtor Nos.4 and 5, who are her daughters, and also as a GPA holder. Judgment debtors 6 to 9 filed separate counter affidavits. Judgment debtors 10 to 15 have also filed separate counter affidavits on their behalf. 6. There is no dispute to the fact that in O.S.No.1187 of 1993 on the file of the First Senior Civil Judge, City Civil Court, Hyderabad, a compromise was arrived at and accordingly, the compromise decree was passed on 06-12-1999 in terms of the memo filed in I.A.No.1270 of 1999, whereby the subject matter of the property was shown in four schedules as A, B, C and D, of which schedule ‘D’ is to be registered in favour of the respondent. The Court below, by taking into consideration the objections raised on behalf of the petitioners in detail, did not find favour with them and rejected by a comprehensive order and directed for execution of the sale deed, the draft of which was already furnished along with the said notice under Order 21 Rule 34 of C.P.C. The said order is being assailed by the petitioners in this Revision Petition. 7. In the petition filed by the petitioners purportedly under Section 47 of C.P.C., during the course of enquiry, no evidence as such either oral or documentary is produced by the parties. It is only the petitioners, who have filed an affidavit in support of their case, and on the basis of the same, the matter has been decided. Even in this Court also, no fresh evidence or material is adduced. 8. According to the petitioners, in the counter filed before the Court below, the objections are that, firstly, the decree, which is being executed, has become null and void and cancelled; secondly, the decree holder did not perform his part of contract in making the payment of balance sale consideration of Rs.2,42,24,000/- as per the terms of the very decree and therefore, it has become nullity; thirdly, the Court has no pecuniary jurisdiction; fourthly, the decree is indivisible and therefore, the execution proceedings laid in E.P.Nos.48 of 2003 and 49 of 2003 filed separately are not maintainable; fifthly, since the decree holder has already filed separate suits in O.S.Nos.2240 of 2002 and 2241 of 2002, the present execution is not maintainable as parallel proceedings cannot be allowed; sixthly, the relief as sought for by the decree holder is hit by Section 23 of the Contract Act since the claim is barred under the provisions of the Urban Land (Ceiling and Regulation) Act, 1976 and no sale deed is executed; seventhly, judgment debtor Nos.14 and 15 are minors and therefore, no execution petition is maintainable unless proper steps are taken; eighthly, the decree holder cannot differentiate the amounts paid or to be paid to the judgment debtors and if at all any amounts are paid separately, the same cannot be accounted for the amounts due under the terms of the compromise decree without the consent of all the other judgment debtors. Further the payments if at all made earlier have not been duly recorded as per the provisions of Rules 1 and 2 of Order 21 of C.P.C. 9. On the above objections, the Court below has dealt separately and answered in the negative. As far as the pecuniary jurisdiction is concerned, it was held that originally the suit was valued at Rs.70,00,000/- and the Court fees was paid at Rs.72,426/- as per Section 39 of the A.P Court Fees & Suits Valuation Act, basing on the suit agreement of sale, dated 02-10-1992, which itself specifies the total consideration at Rs.70,00,000/-, and any revision in regard to the sale consideration would not in any way affect the jurisdiction. Further, even as per the terms of the decree, the decree holder is no way concerned with the sale consideration received by late Mir Bande Ali Khan, who is the husband of judgment debtor No.1 and father of judgment debtor Nos.2 and 3, and the revision in regard to the sale consideration pertains to schedules A, B and C properties, but as far as schedule-D properties, which is the subject matter in the present execution, is concerned, it remained the same. Therefore, having regard to its entirety, the Court would not lose any jurisdiction and especially when the suit was filed in the year 1993, the Court of Senior Civil Judge has jurisdiction to entertain the suit. 10. In regard to the objection under Section 23 of the Contract Act, as regards the enforcement of the decree being filed under the provisions of the Urban Land (Ceiling and Regulation) Act, 1976, it was held that since the term of the decree itself specifically mentions that the execution is only subject to the obtaining of the urban land ceiling proceedings and the pendency of the proceedings was not suppressed, the said objection is not maintainable and sustainable. 11. So far as the objection as to the service of notices on judgment debtor Nos.4 and 5, which was served on the GPA, but not directly on them, is concerned, it was held that they are no other than the daughters of judgment debtor No.1 and in view of the subsistence of due general power of attorney, the said objection does not hold any water. 12. Coming to the objection as to the deposit of the amounts covered under the compromise decree is concerned, the Court below has specifically observed that the execution laid by the decree holder only pertains to schedule-D properties for Rs.4,50,000/-. Further even as per the objection, the total amount to be payable under the compromise decree is Rs.2,42,24,000/- and the very memorandum of compromise in pursuance of the decree is passed duly acknowledged by judgment debtor Nos.1 to 5 about the receipt of entire consideration as per the clauses contained therein and therefore, no amount is payable. 13. In regard to the bar of limitation in allowing the execution, it was held that the same is untenable especially where the parties themselves entered into the compromise, the terms of such compromise govern the field, but not otherwise and therefore, even by taking into account the said terms, the execution is not barred by limitation. It was also held that the terms of compromise were agreed and taking advantage of the non performance of their obligations and the chequered events which lead to the settlement, the petitioners cannot go back and contend otherwise. 14. In regard to the objection that the decree is not lawful, it was held that the parties to the compromise in compromise decree have categorically admitted that they have no right or interest in schedule-D property and the urban land ceiling authorities could not have taken up the question of title and there is a clear admission on the part of defendants 1 to 5 about the execution of the hire purchase agreement by their father and there is estoppel working against them. 15. With the above findings, the Court below rejected all the objections. The petitioners, though have approached this Court by way of this Revision, however, all these objections have not been canvassed and are restricted to the points which are being discussed. 16. An objection was taken by the learned counsel appearing for the respondent that the impugned order is a comprehensive common order in both proceedings, which are quite independent in E.P.No.48 of 2003 and E.A.No.120 of 2003, where in the latter application the petitioners raised several objections, in pursuance of which only the present Revision is sought to be pursued, and since the Revision is filed only against one order and there being no Revision filed as against the main order in E.P.No.48 of 2003, the present proceedings are barred under the principles of res judicata. 17. Technically speaking, there cannot be any doubt in regard to the objection raised on behalf of the respondent. Necessarily, the petitioners ought to have opted for two revisional remedies rather than restricting to one to avoid technicalities. Be that as it may, since the revision is not preferred against the order in E.P.No.48 of 2003, it operates as res judicata. 18. Learned counsel, Sri B. Adinarayana Rao, appearing on behalf of the respondent, raised a preliminary objection to the effect that the Revision, as has been filed, is barred by limitation. 19. In reply, the learned senior counsel, Sri K.V. Satyanarayana, appearing on behalf of the petitioners, submits that having regard to the provision under Section 12(2) of the Limitation Act, 1963 (hereinafter referred to as ‘Act’), while computing the period of limitation for filing an Appeal or an application for leave to appeal, or revision or review of the judgment, the time taken for issuance of the copy of the decree or order shall be excluded and, therefore, the Revision cannot be said to be barred by limitation. In support of the same, it is submitted that the impugned order was passed on 25-09-2003 and the copy application was filed on 27-02- 2006. It is only thereafter the decree was prepared by calling for the stamps and ultimately, the copy was issued on 10-03-2006 and therefore, the Revision, which is filed on 18-04-2006, is perfectly well within the period of limitation, since it has been filed within 90 days as provided for under the provisions of the Act. In support of his contentions, the learned counsel sought to place reliance on the provision under Section 12(2) of the Act, and also on the decisions reported in LAL BALMUKUND DEAD v. LAJWANTI [1], INDIA HOUSE v. KISHAN N. LALWANI [2], and UDAYAN CHINUBHAI v. R.C. LALI [3]. 20. Coming to the aspect of preliminary objection raised on behalf of the respondent, it is to be seen that no doubt the order was passed on 25-09-2003, however, the copy of which was admittedly not applied for immediately by the petitioners nor at least within the period of 90 days, as prescribed under the provisions of the Act, for filing a Revision under Section 115 of C.P.C. There is absolutely no explanation whatsoever from the petitioners as to why the copy application was not filed immediately or at least within the period of 90 days. However, no doubt, subsequent to the filing of the copy application on 27-02-2006, the decree was drafted and signed after calling for stamps by 10-03-2006. Apparently, it is only after the copy application was filed on 27-02-2006, which is far beyond the prescribed period of 90 days from the date of passing the order, the decree came to be drafted, however, this itself would not give any credence or come to the rescue of the petitioners as to why there is such a long unexplained delay in applying for the copy of the decree itself. It could also be said that though the copy of the decree was applied within prescribed period of 90 days from the date of the order on 25-09-2003, possibly it could have been said that the decree was finally drafted and signed after the due procedure of calling for stamps etc. and that period, if at all is taken by any Court, necessarily could come to the rescue of the petitioners or any other parties in the similar circumstances. However, merely because the Court has called for stamps and drafted the decree later, which is far beyond the period of 90 days, even though the application is not being filed by the petitioners for the copy thereof, it cannot, in any circumstances, be said to be attributable to the delay on the part of the Court so that the parties can take avail of the same. 21. Section 12 of the Act reads as follows: “12. Exclusion of time in legal proceedings.— (1) In computing the period of limitation for any suit, appeal or application, the day from which such period is to be reckoned, shall be excluded. (2) In computing the period of limitation for an appeal or an application for leave to appeal or for revision or for review of a judgment, the day on which the judgment complained of was pronounced and the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be revised or reviewed shall be excluded. (3) Where a decree or order is appealed from or sought to be revised or reviewed, or where an application is made for leave to appeal from a decree or order, the time requisite for obtaining a copy of the judgment on which the decree or order is founded shall also be excluded. (4) In computing the period of limitation for an application to set aside an award, the time requisite for obtaining a copy of the award shall be excluded. Explanation.— In computing under this section the time requisite for obtaining a copy of a decree or an order, any time taken by the Court to prepare the decree or order before an application for a copy thereof is made shall not be excluded.” 22. Part-III of the Act pertains to the provisions contemplated for ‘computation of period of limitation’. All the provisions in the said Part determine various situations under which the Act allows exclusion of time. It is needless to mention that it is the well established principle that unless and until the statute confers any such exclusion or extension or entitlement for enabling the parties to avail any legal remedies, the period, which is prescribed under the provisions of the Act, cannot be said to be allowing extension. Therefore, necessarily, one has to fall back only to see if there is any such entitlement on the part of the petitioners in the present case. Admittedly, the petitioners have not applied for the copy of the decree, within the prescribed period of 90 days under Article 116 of the Act for preferring a Revision under Section 115 of C.P.C. nor any application for issuance of the copy of the decree, which they want to assail, has been applied and the same was pending either for preparation of the certified copy or even for drafting of the decree as such. Normally, in such cases the decrees would not be drafted as long as the party complies with the requirement of necessary stamps etc., as provided for, and it is only thereafter the decree would be engrossed on the stamp paper. Therefore, it cannot be said that the preparation of the decree or the certified copy of the order or finalization thereof is an act on the part of the Court to come to the aid. 23. Under the aforesaid provisions, sub-clause (1) provides for a specific exclusion of the period in computing the limitation for any suit, appeal or application. Sub-clause (2) provides for the exclusion of the day on which the judgment or order was passed, which the parties want to assail, and the time, which is required for obtaining the copy of the order or decree. Therefore, sub-clause (2) is more specific in its assertion and also makes it amply clear that the time, which is attributable to the Court in preparation of the copy of the decree, will come to the aid of the parties. Sub-clause (3) is also another reiteration for exclusion of the time, which is requisite for obtaining copy of the judgment on which the decree or order is founded. Sub-clause (4) pertains to the proceedings of the award and therefore, it also provides for exclusion of time, which is requite for obtaining the copy of the award. With this backdrop contemplating the exclusion period taken for preparation of the copy, which is sought to be appealed or revised or assailed against in any appropriate remedial proceedings, the legislature has specifically added an Explanation which is ample bearing on the present situation. The said Explanation to the provision under Section 12 of the Act specifically clarifies to the effect that any time, which is taken for such preparation before the very application for the copy thereof is made, shall not be excluded. Thus it contemplates that irrespective of the time taken for preparation of the copy thereof, necessarily the copy application has to be made immediately if at all the parties seek to avail the exclusion of the time taken for preparation of the copy. Unless and until the application is made for the copy, the time either way prescribed, be it either for exclusion or for computing the period of limitation, as provided under the provisions of the Act, cannot come to the aid. Therefore, necessarily it follows and the Explanation stretches the mandate on the part of the aggrieved party to file the application immediately or at least within the prescribed time so that the time, if any, taken in preparation of the copy, can be taken advantage of and seek exclusion, but not otherwise. The present situation squarely falls well within the situation explained in the aforesaid Explanation and thus it cannot be said that the petitioners could have availed the period from 25-09-2003 till 10-03-2006, so that they could have filed the Revision thereafter. The Explanation is a complete answer and also set at rest on the question whether such time should be excluded where no application for copy has been made. 24. In LALA BAL MUKAND v. LAJWANTI (1 supra), the provision under Section 12(2) of the Act was considered, in which the learned counsel seeks to rely on the following dictum: “( 21 ) IN our opinion the expression "time requisite" as used in Section 12 (2) in the phrase in question, means all the time counted from the date of the pronouncement of the judgment (the same being under O. 20, R. 7, Civil P. C. , the date of the decree) which would be properly required for getting a copy of the decree, including the time which must ex-necessitas elapse in the circumstances of the particular case, before a decree is drawn up and signed. If any period of the delay in preparing the decree was attributable to the default or negligence of the appellant, the latter shall not be entitled to the exclusion of such period under Section 12 (2) of the Limitation Act, 1908.” However, it is to be noticed that the facts, under which the aforesaid case arose, are that the judgment in question was passed on 30-10-1956. Whereas the copy application was filed on 14-11-1956 and the copy was delivered to the party on 16-11-1956 and to the counsel on 01-02-1957. The party stated that he received the intimation on 03-02-1957. In this background, it has been held as under: “(22) APPLYING the law as enunciated above to the facts of the case in hand, it will be seen that the drawing up or coming into existence of the original decree, of which the copy was sought, was conditional upon the payment of Court-fee by the plaintiffs within thirty days of the pronouncement of the judgment (30-10-1956). The plaintiffs did not comply with that direction within the time originally specified in the judgment. They deposited the Court-fee only on 18-1- 1957 within the extended time which was granted without notice to the defendant-appellant. Even after that, the decree was not signed till 30-1-1957. Under the judgment or any rules of the Court, the appellant was not required to take any step towards the preparation of the decree. No period of the delay in drawing up the decree was attributable to the fault of the appellant. The delay was mainly due to the delayed deposit of the court-fee by the plaintiffs and partly due to the laxity of the office of the Court. Although the appellant prematurely filed an application for getting a copy of the non-existent decree on 26-11-1956, he could legitimately defer that action till the condition precedent, on which the drawing up of the decree was dependent, was performed by the plaintiffs. It would not have been extravagant for the appellant to wait till the Court-fee was deposited by the plaintiffs, for, in the event of non-deposit of the Court-fee, there was a reasonable possibility of their suit being dismissed, or at any rate, of the decree against which the defendant felt aggrieved and eventually appealed, not being passed. Under the circumstances, the appellant was entitled to the exclusion of the entire time between the date of the pronouncement of the judgment and the date of signing of the decree, as the 'time requisite for obtaining a copy of the decree'. After such exclusion - avoiding double counting - his appeal filed in the Court of the Additional Civil Judge on 12-2-1957, was fully within time.” The main important aspect in the above case is that soon after the judgment was passed on 30-10-1956, admittedly the copy application was filed on 14-11-1956, which is well within the time and therefore, in the circumstances, even on a reading of the Explanation to the aforesaid provision, though the same has not come up for consideration, it can safely be said that the time taken by the Court in the said case in ultimately making ready of the copy thereof can certainly come to the rescue of the party. Whereas in the present case it is not so. Here is a case where the order was passed on 25-09- 2003, whereas the copy application itself was filed on 27-02-2006. 25. In M/s. INDIA HOUSE v. KISHAN N. LALWANI (2 supra), considering the provisions of Sections 5 and 12 of the Act, the Supreme Court reiterated the principles and more so by taking into consideration the power of extension as provided for under Section 25 of the Tamil Nadu Buildings (Lease and Rent) Control Act, 1960, held that: “Tamil Nadu Buildings (Lease and Rent) Control Act, 1960 – Section 25 – Revision against appellate order – Limitation of one month from the date on which the impugned order is communicated to the applicant – High Court given power to extend time not exceeding