Mohinder Singh (D) Thr Lrs Lrs. vs Paramjit Singh .

2. The relevant undisputed facts of this case can be delineated as under:

Resultantly, the original appellant Mohinder Singh filed a suit for declaration that the gift deed was void, being Suit No.367 of 1963 before the Sub Judge, First Class, Batala. During the pendency of the said suit, a compromise was arrived at between Rura Singh (predecessor of the respondents) and Mohinder Singh (predecessor of the appellants). The parties made statements before the Trial Court that as per the 3 compromise, Mohinder Singh was to be given the land comprised in Khasara No.46/16 situated at Village Pandori, Tehsil Batala and 26/4/2/4, 26/3/3 Min East, 26/4/1, 26/3/3 Min West of Village Ghuman after the death of Ujjagar Singh out of the entire land and Mohinder Singh also gave up his house. A statement was made by Rura Singh before the Court which reads thus:

3. On the basis of the said arrangement, the Court disposed of the suit on 20th August, 1963 on the basis of compromise in the following terms:

4. Mohinder Singh then took out execution petition No.430 of 1964 on 23rd December, 1964. The said execution petition 4 was dismissed being premature, by the Executing Court vide order dated 7th August, 1965 which reads thus:

5. The said Ujjagar Singh died on 14th January, 1971, whereafter Mohinder Singh took out second execution petition on 18th February, 1971. He also took out an application for summoning the original file with the decree sheet. This application was filed on 23rd August, 1971 before the Executing Court. It then transpired that the decree was prepared and the decree sheet was drawn on 19 th August, 1972. However, the execution petition instituted by Mohinder Singh came to be dismissed for default on 2nd February, 1973. On the same day, Mohinder Singh took out third execution petition which was dismissed on 2nd February, 1974 on the ground that the same was not maintainable. The relevant portion of the order passed by the Executing Court in Execution Application No.11/1973 reads thus: 5

6. Taking cue from the observations in this order and left with no other option for getting possession of the land referred to in the decree passed in suit No.367 of 1963, Mohinder Singh filed a fresh suit on 11th June, 1974, in the Court of Civil Judge, Junior Division, Batala, being C.S. No.173/1974. He asserted that the declaratory decree was prepared on 19th August, 1972 and because of the order passed by the Executing Court on 2nd February, 1974, he had to file the suit for possession on the basis of the cause of action which had arisen on 19th August, 1972 and because of the refusal of the 6 respondents (defendants) to deliver the suit lands to him. The respondents filed written statement in which they admitted the fact that the decree was prepared on 19th August, 1972, but asserted that the present suit was barred by limitation as the same was filed after lapse of 3 years from the date of death of Ujjagar Singh. In that, Ujjagar Singh died on 14th January, 1971 whereas the suit has been filed on 11th June, 1974. Further, the factum of preparation of decree on 19th August, 1972 would be of no avail as the decree had been passed in the previous suit on 20th August, 1963. The date on which the previous suit was decided would be the relevant date. However, subsequently the respondents (defendants) filed additional written statements so as to withdraw the admission made earlier that the decree sheet was prepared on 19th August, 1972.

8. Aggrieved, the respondents (defendants) filed a first appeal before the District Court being Civil Appeal No.373 of 2008 (12th June, 2008) which was heard by the Additional District Judge, Gurdaspur and was finally dismissed on 2nd 9 February, 2012. The District Court rejected the argument of the respondents on the issue of suit being barred by limitation, by observing thus:

10. In this backdrop, the present appeal, by special leave, has been filed by the original plaintiff Mohinder Singh who died during the pendency of the appeal before this Court and consequently, his heirs and legal representatives have been brought on record to espouse the cause. According to the appellants, the suit for possession was filed by Mohinder Singh on the basis of the declaratory decree which was within the limitation period of three years as provided by Article 2(b) of the Schedule to the 1920 Act. Inasmuch as, Section 2(b) of the said Act stipulates that the limitation would commence from the date on which the right to sue accrues or the date on which the declaratory decree is obtained, whichever is later. In the present case, the right to sue accrued after the death of Ujjagar Singh on 14th January, 1971. However, the plaintiff 12 was advised to pursue execution of the decree passed in the previous Suit No.367 of 1963 and was driven to file the present suit on 11th June, 1974 after the order was passed by the Executing Court on 2nd February, 1974. Nevertheless, as the decree sheet was prepared only on 19th August, 1972, the suit filed on 11th June, 1974 was within limitation in terms of Article 2(b) of the 1920 Act. To buttress this submission reliance has been placed on the decision in Lala Balmukund (Dead) Through L.Rs. Vs. Lajwanti and Ors.1, wherein it has been held that “obtaining” the copy means drawing of a decree. That happened in this case on 19th August, 1972 and for which reason the suit filed on 11th June, 1974 was within limitation. Reliance has been placed on the contemporaneous record, including written statement and the appeal memo filed before the First Appellate Court by the respondents (defendants), admitting preparation of decree on 19th August, 1972. Reliance is also placed on Section 14 of the 1963 Act for exclusion of time during which Mohinder Singh (plaintiff) had bona fide pursued the execution proceedings. It is 1 (1975) 1 SCC 725 13 submitted that Section 14 of the 1963 Act will be attracted not only because of Section 29(2) of the 1963 Act, but also because of Section 5 of the 1920 Act expressly providing for application of Sections 4 to 25 of the 1963 Act. Reliance is placed on a three-Judge Bench decision of this Court in Consolidated Engineering Enterprises Vs. Principal Secretary, Irrigation Department and Ors., 2 which has enunciated that a liberal approach should be adopted by the Court, unless the application of Section 14 is expressly excluded by the special law. It is contended that although the first execution petition moved by the plaintiff was dismissed as premature as also the subsequent execution petition was dismissed on 2nd February, 1974 on the ground that the proper remedy was to file a suit for possession, the defendants neither raised any objection nor challenged the said orders. On the other hand, the plaintiff acted upon the said orders and eventually filed a suit for possession on 11th June, 1974. Relying on the decision of this Court in Union of India and 2 (2008) 7 SCC 169 14 Ors. Vs. West Coast Paper Mills Ltd. and Anr. 3 , it is submitted that the conclusion reached by the Trial Court and commended to the First Appellate Court, is the correct approach in the fact situation of the present case. Taking any other view would be awarding bonus to the respondents despite Rura Singh (predecessor of respondents) having agreed for giving possession of the subject properties to Mohinder Singh (predecessor of the appellants) vide compromise decree dated 20th August, 1963.

22. The expanse of Section 14 of the Act, therefore, is not limited to mere jurisdictional issue but also other cause of a 9 (1975) 4 SCC 628 28 like nature. Taking cue from this decision, the appellant would contend that the plaintiff immediately after compromise judgment was pronounced on 20th August, 1963 took recourse to Execution Petition No.433/1964 on 23rd December, 1964 but the same was dismissed by the Executing Court on 7th August, 1965, as being premature. The plaintiff verily believed that the execution of the decree passed in the previous suit would result in getting possession of the property albeit after the death of Ujjagar Singh. Consequently, after the death of Ujjagar Singh on 14th January, 1971, the plaintiff moved second execution petition on 18th February, 1971 and in those proceedings moved an application for summoning the file with a decree sheet. It transpired that the decree was drawn and the decree sheet was made ready on 19th August, 1972, but the said execution petition stood dismissed for default on 2 nd February, 1973. For that reason, the appellant on the same day moved the third execution petition i.e. on 2nd February, 1973 which, however, was dismissed on 2nd February, 1974 on the ground that the remedy for the plaintiff to get possession of the suit property was to file a suit for possession 29 on the basis of the declaratory decree. It is only thereafter the plaintiff resorted to the subject suit, being Civil Suit No.173/1974 filed on 11th June, 1974.

In view of my above said finding the application is dismissed. File be consigned to the Record Room.” (emphasis supplied)

Resultantly the instant second appeal is allowed. Judgments and decrees of both the courts below are set aside. Suit filed by the respondent No.1-plaintiff stands dismissed. The parties are, however, left to suffer their respective costs throughout.” (emphasis supplied)

(3) xxx (4) xxx.”

29. In view of the above, we allow this appeal and set aside the impugned judgment and order and decree passed by the High Court and instead, restore the judgment and decree 34 passed by the Trial Court as affirmed by the First Appellate Court.

30. Accordingly, this appeal is allowed with no order as to costs.

..……………………………...CJI.

March 28, 2018.