Sk. Jalil and Another vs Gopal Charan Mohanty and Others

S. Acharya, J.—The Petitioners have preferred this appeal against the confirming decision of the District Judge, Mayurbhanj-Keonjhar passed in Title Appeal No. 3-M of 1969.

The Petitioners� suit is for setting aside the decree passed in Title Suit No. 36/61 of the Court of the Additional Munsif, Baripada and also for a declaration that the deed of agreement dated 18-4-1959 and the decree enforcing the said agreement are not binding on the Petitioners and for confirmation or in the alternative for recovery of possession of the suit lands.

It is not necessary for me to narrate� in detail the plaint case as the questions agitated in this second appeal do not require the consideration of all those facts alleged by the Petitioners in their plaint.

Both the Defendants contested the suit and challenged the various facts alleged by the Petitioners, and specifically asserted that the suit was barred by limitation and also barred by the principles of res judicata.

The trial Court inter alia decided that the suit was barred by limitation and also held that it was also barred by the principles of res judicata.

The appellate Court amongst other things confirmed the finding of the trial Court regarding limitation and res judicata.

Mr. Patnaik, the learned Counsel for the Appellants, urges that the finding of the Courts below that the suit is barred by limitation is not correct in view of the fact that the decree passed in Title Suit No. 36 of 1961, which is sought to be set aside in this case, is not in accordance with the judgment passed in that case, and so in the facts of this case the time for filing the suit would run only from the sealing and signing of the decree on 29-9-1962 and not from 20-9-1962 when the judgment was passed. On hearing the counsel appearing for both the parties I do not find any weight and substance in the above-mentioned contention of Mr. Patnaik.

At the outset it must be said that in the suit the said decree is not challenged on the ground that it is not in accordance with the judgment. As that was not the basis of the suit and that question of fact has not been agitated at any previous stage, that matter cannot be allowed to be raised in this second appeal and the aforesaid contention cannot be decided in the perspective of the said undecided question of fact.

Counsel appearing for both the parties agree that the present suit is governed by Article 59 of the Limitation Act. That article prescribes a period of 3 years from the time when the facts entitling the Petitioner to have the decree set aside became known to him. Plaintiff No. 1 was a party in Title Suit No. 36 of 1961. Accordingly he was well aware of the aforesaid suit and the date of the passing of the judgment in that suit. Plaintiff No. 2 is a transferee of the suit lands from Petitioner No. 1 and the said transfer was made on 4-10-1962 after the passing of the judgment in Title Suit No. 36 of 1961 on 20-9-1962. Plaintiff No. 2 being a transferee from Petitioner No. 1 cannot plead and has not pleaded ignorance about the decision in the said suit.

Order 20, Rule 7, CPC lays down that the decree shall bear the date on which the judgment was pronounced. As the date of the decree under this Rule is the date of the judgment, the date of the decree as legally understood is not the date on which it was signed and sealed in the office. My above view gets support from the decisions reported in Arjun Ch. Patnaik v. Purnananda Patnaik and Anr. 36 (1968) C.L.T. 472; Sri Ramachandra Mardaraj Deo v. Bhalu. Patnaik and Ors. AIR 1950 Ori 125 (F.B.). The principle on which the above view is taken is, as stated by their Lordships of the Full Bench, that once a judgment is pronounced the drawing up of the decree is only a matter of course within the power of the Court. Therefore the legislature made express provision directing that the decree shall bear the date of the judgment. As the law on the point has been well settled as stated above, the Petitioners� suit, admittedly instituted beyond a period of 3 years after the date of the decree, i.e. after the passing of the judgment on 20-9-1962 in the aforesaid suit (Title Suit No. 36 of 1961), was clearly barred by limitation. Accordingly, the finding of the Courts below to this effect is well founded and is hereby confirmed.

In view of the aforesaid finding, it is needless for me to delve into the other questions raised by the parties and decided in the Courts below.

As the Petitioners� suit is barred by limitation this appeal by the Petitioners is not maintainable, and it is accordingly dismissed, but in the circumstances without costs of this appeal.