Harbant Kaur vs Amar Singh and others

The following unusual circumstances give rise to an interesting question as to whether the petitioner''s right to execute the decree passed in her favour stands barred by limitation?

On September 21, 1969, the learned Senior Sub Judge, Ropar, vide his judgment of the same date, upheld the right of the petitioner to obtain possession of certain land from the respondents. However, a decree in terms of this judgment was not prepared, Later, on July 19, 1973, the petitioner filed an execution application to obtain possession of the suit land. The respondent-judgment-debtors objected to it on the ground inter alia pleading that since no copy of the decree sheet had been filed along with the application the same deserved to be dismissed. The Court upheld the objection and vide its order dated February 12, 1976, while dismissing the execution application, observed as follows:--

"These are admitted facts that no copy of the decree sheet has been filed by the D.H. As a matter of fact no decree sheet has been prepared in this case. The D.H. has filed an application for the preparation of decree sheet which is pending. Till the decree is prepared no execution can be made. The present application is like putting the cart before the horse. Till the decree sheet is prepared, no execution application is maintainable. The execution application is thus dismissed."

At a later stage when the judgment-debtors were out to transfer the suit land to some persons, the petitioner again filed a miscellaneous application in the trial Court seeking to restrain the judgment-debtors from disposing of the property. This application, however, was dismissed by the Court on 26-5-1984 with the following observations :--

"It is irony of fate that Smt. Harbant Kaur applicant has not been able to get joint possession of the land by a regular execution application. The earlier application, if any, was made seem to have been dismissed by the Court as there was no decree sheet prepared in this case. As I have pointed out earlier that decree sheet in the case was prepared on 1-4-1981 on the basis of the order dated 1-4-1978. After 1-4-1981 no execution application seems to have been moved by the D.H. Harbant Kaur. The present miscellaneous applications are liable to be dismissed, because there is no execution application. I, therefore, dismiss the same. File be consigned to the records."

As a consequence of this order, the present execution application was filed on June 11, 1984. This too has been dismissed by the executing Court on the ground that even though the decree sheet had been prepared on April 1, 1981 (wrongly mentioned as 1st April, 1979), yet since it had to bear the date on which the judgment was pronounced, (Order 20, Rule 7, C.P.C.) the application of the petitioner for the execution of the decree is clearly barred in view of the provisions of Article 136 of the Limitation Act. The petitioner impugnes this order.

Having given my thoughtful consideration to the entire matter, I find that the impugned order is wholly unsustainable and deserves to be set aside.

It is patent from the above narration of facts that though the judgment had been passed in favour of the petitioner on September 21, 1969, entitling her to the possession of the suit land, yet the decree sheet in terms of the judgment was prepared by the Court only on April 1, 1981. The present execution petition was filed by her on June 11, 1984, i.e., after about three years of the preparation of the decree. Now the question that arises is can in the given facts and circumstances of this case it be held that the claim of the petitioner for possession of the suit land is in any way barred by Article 136 of the Limitation Act which lays down that a decree of a Civil Court may be executed within 12 years from the date when the decree becomes enforceable. So all that has to be determined in the instant case is whether the decree in question was enforceable prior to April 1, 1981? Though the above quoted orders of the executing Court dated February 12, 1976 and May 26, 1984 by themselves clearly indicate that there was no enforceable decree which was sought to be executed by those dates, yet the matter has authoritatively been considered and settled about seven decades ago by their Lordships of the Privy Council in Rameshwar Singh v. Homeswar Singh, AIR 1921 PC 31, in the following words :--

"In order to make the provisions of the Limitation Act apply, the decree sought to be enforced must have been in such a form as to render it capable in the circumstances of being enforced."

It is thus patent that the limitation as per Article 136 of the Limitation Act referred to above, did not run against the petitioner till the decree sheet was prepared on April 1, 1981. From that date the present application filed on June 11, 1984, is clearly within limitation.

The matter can yet be examined from another angle, i.e., in the light of the following meaningful observations of their Lordships of the Supreme Court in Jagat Dhish Bhargava Vs. Jawahar Lal Bhargava and Others, , which too was a case where the maintainability of an appeal filed without the copy of the decree sheet, which was prepared about five years later, was disposed of :--

"The failure of the trial Court to draw up the decree as well as the failure of the relevant department in the High Court to examine the defect in the presentation of the appeal at the initial stage have contributed substantially to the present unfortunate position. In such a case there can be no doubt that the litigant deserves to be protected against the default committed or negligence shown by the Court or its officers in the discharge of their duties (at page 836) :--

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Then it was argued that the respondents should have moved the trial Court for the drawing up of a decree as soon as they found that no decree had been drawn up. It may be assumed that the respondents might have adopted this course; but where the dual system does not exist it would be idle to contend that it is apart of the duty of alitigant to remind the Court or its office about its obligation to draw up a decree after the judgment is pronounced in any suit. It may be that decrees when drawn up are shown to the lawyers of the parties; but essentially drawing up of the decree is the function of the Court and its office, and it would be unreasonable to penalise a party for the default of the office by suggesting that it was necessary that the party should have moved the Court for the drawing up of the decree. Therefore, we are not satisfied that the appellant is justified in attributing to the respondents any default for which the penalty of dismissing their appeal can be legitimately imposed on them."

It is, therefore, patent that in the instant case also the petitioner cannot be made to suffer to be deprived of the fruits of the litigation on account of the fault or the non-performance of duties by the trial Court or its officials. Therefore, I allow this petition and set aside the impugned order. The case is sent back to the executing Court with the direction that it should expedite the proceedings as the matter is apparently over-delayed. The petitioner is also held entitled to the costs of the litigation which I determine at Rs. 500/-.

Petition allowed.