CIVIL

Meaning of “When the Decree becomes enforceable”

Article 136 of the Limitation Act 1963 being the governing statutory provision, prescribes a period of twelve years when the decree or order becomes enforceable. The word enforce in common acceptation means and implies compel observance of (vide Concise Oxford Dictionary) and in Black’s Law Dictionary ‘enforce’ has been attributed a meaning to give force or effect to compel obedience to’ and ‘enforcement has been defined as ‘the act or process of compelling compliance with a law, mandate or command’. In ordinary parlance ‘enforce’ means and implies ‘compel observance of’. Corpus Juris Secundum attributes the following for the word ‘enforce’:

“ENFORCE. In general, to cause to be executed or performed, to cause to take effect, or to compel obedience to, as to enforce laws or rules; to control; to execute with vigour; to put in execution; to put in force; also to exact, or to obtain authoritatively. The word is used in a multiplicity of ways and is given many shades of meaning and applicability, but it does not necessarily imply actual force or coercion. As applied to process, the term implies execution and embraces all the legal means of collecting a judgment, including proceedings supplemental to execution.

The past tense or past participle “enforced” has been said to have the same primary meaning as “compelled”.

The language used by the legislature in Article 136 it read in its proper perspective to wit: when the decree or order becomes enforceable must have been to clear up any confusion that might have arisen by reason of the user of the expression ‘the date of the decree or order which was used in the earlier Act. The intention of the legislature stands clearly exposed by the language used therein viz., to permit twelve year certain period from the date of the decree or order. It is in this context that a decision of the Calcutta High Court in the case of Biswapati Dey Vs. Kennsington Stores and Others, wherein the learned Single Judge in no uncertain terms expressed his opinion that there cannot be any ambiguity in the language used in the third column and the words used therein to wit: ‘when the decree or order becomes enforceable’ should be read in their literal sense. We do feel it expedient to lend our concurrence to such an observation of the learned Single Judge of the Calcutta High Court. The requirement of the Limitation Act in the matter of enforcement of a decree is the date of which the decree becomes enforceable or capable of being enforced- what is required is to assess the legislative intent and if the intent appears to be otherwise clear and unambiguous, question attributing a different meaning other than the literal meaning of the words used would not arise. It is in this context, we also do feel it inclined to record our concurrence to the observations of the full Bench of the Bombay High Court in Subhash Ganpatrao Buty and Another Vs. Maroti and Others, . Full Bench in the decision observed:

“… it is the duty of the Court to interpret the language actually employed and to determine the intention of the legislature from such language and since there is no ambiguity about the language actually employed, neither the recommendation of the Law Commission nor the aims and object as set out in the Statement of Objects and reasons can be brought in aid or can be allowed to influence the natural and grammatical meaning of the Explanation as enacted by the Parliament.”

Article 136 of the Act of 1963 prescribes as noticed above, a twelve years period certain and what is relevant for Article 136 is, as to when the decree became enforceable and not when the decree became executable. The decision of the Calcutta High Court in Biswapati’s case (supra) has dealt with the issue very succinctly and laid down that the word ‘enforceable’ should be read in its literal sense. In the contextual facts, the final decree upon acceptable of the report of the Commissioner was passed on 20.11.1970, while it is true that notice to furnish stamp paper was issued on 28.2.1972 and the time granted was up to 17.3.1972 but that by itself will not take it out of the purview of Article 136 as regards the enforceability of the decree. Furnishing of stamped paper was an act entirely within the domain and control of the appellant and any delay in the matter of furnishing of the same cannot possibly be said to be putting a stop to the period of limitation being run – no one can take advantage of his own wrong: As a matter of fact, in the contextual facts no stamp paper was filed until 26.3.1984 – Does that mean and imply that the period of limitation as prescribed under Article 136 stands extended for a period of twelve years from 16th March, 1984? the answer if it be stated to be in the affirmative, would lead to an utter absurdity and a mockery of the provisions of the statute. Suspension of the period of limitation by reason of one’s own failure cannot but be said to be a fallacious argument, though however suspension can be had when the decree is a conditional one in the sense that some extraneous events have to happen on the fulfilment of which alone it could be enforced – furnishing of stamped paper was entirely in the domain and power of the decree-holder and there was nothing to prevent him formatting in terms therewith and thus it cannot but be said that the decree was capable of being enforced on and from 20th November, 1970 and the twelve years period ought to be counted therefrom. It is more or less in identical situation, this Court even five-decades ago in the case of Yeswant Deorao Deshmukh Vs. Walchand Ramchand Kothari, has stated:

“..The decree was not a conditional one in the sense that some extraneous event was to happen on the fulfilment of which alone it could be executed. The payment of court fees on the amount found due was entirely in the power of the decree-holder and there was nothing to prevent him from paying it then and there; it was a decree capable of execution from the very date it was passed.

 Supreme Court in West Bengal Essential Commodities Supply Corporation Vs. Swadesh Agro Farming and Storage Pvt. Ltd. and Another, had the occasion to consider the question of limitation under Article 136 of the Limitation Act of 1963 and upon consideration of the decision in the case of Yeswant Deorao (supra) held that under the scheme of the Limitation Act, execution applications like plaints have to be presented in court within the time prescribed by the Limitation Act. A decree-holder, this court wen ton to record does not have the benefit of exclusion of the time taken for obtaining even the certified copy of the decree like the appellant who prefers an appeal, much less can he claim to deduct time taken by the court in drawing up and signing the decree. In fine, this Court observed that if the time is reckoned not from the date of the decree but from the date when it is prepared, it would amount to doing violence to the provision of the Limitation Act as well as of Order 20 and Order 21 Rule 11 C.P.C. which is clearly impermissible.

The observation thus in W.B. Essential Commodities Supply Corpn. (supra) lends concurrence to the view expressed above pertaining to the question of enforceability of the decree as laid down in Article 136 of the Limitation Act.

Incidentally, in paragraph 12 of the judgment in W.B. Essential Commodities Supply Corpn (supra), this Court listed out three several situations in which a decree may not be enforceable on the date and in last of the situation this Court observed:

“Thirdly, in a suit for partition of immovable properties after passing of preliminary decree when, in final decree proceedings, an order is passed by the court declaring the right of the parties in the suit properties, it is not executable till final decree is engrossed on non-judicial stamp paper supplied by the parties within the time specified by the court and the same is signed by the Judge an sealed. it is in this context that the observation of this Court in Shankar Balwant Lokhande (dead) by L.Rs. Vs. Chandrakant Shankar Lokhande and Another, have to be understood. These observations do not apply to a money decree and, there, the appellant can derive no benefit from them.”

 The third situation, as referred above, has been taken note of by reason of the decision of this Court in the case of Shankar Balwant Lokhande (dead) by L.Rs. Vs. Chandrakant Shankar Lokhande and Another, wherein Ramaswamy, J. speaking for the Bench came to a conclusion that:

“…After final decree is passed and a direction is issued to pay stamped papers for engrossing final decree thereon and the same is duly engrossed on stamped paper(s), it becomes executable or becomes an instrument duly stamped. Thus, condition precedent is to draw up a final decree and then to engross it on stamped paper(s) of required value. These two acts together constitute final decree crystallizing the rights of the parties in terms of the preliminary decree. Till then, there is no executable decree as envisaged in Order 20, rule 18 (2), attracting residuary Article 182 of the old Limitation Act.”

In this context, a further reference can be had from Mulla’s Civil Procedure Code. As regards Section 48 the following is said in Mulla’s C.P. Code:

“This Section has been repealed by Section 28 of the Limitation Act, 36 of 1963. In its place a new provision, Article 136, has been introduced which prescribes “for the execution of any decree (other than a decree granting a mandatory injunction) or order of any civil court” a period of twelve years “where 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 recurrent periods, when default in making the payment or delivery in respect of which execution 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.”

The period of twelve years prescribed by Section 48 is retained under Article 136 and is now the only period of limitation. It is therefore no longer necessary to keep the execution alive by successive applications within three years for complying with the original Article 182.”

 Significantly, the contextual facts itself in Lokhande’s case (supra) has prompted this Court to pass the order as it has (noticed above) and as would appear from the recording in the order to wit: “Therefore, executing court cannot receive the preliminary decree unless final decree is passed as envisaged under Order 20 Rule 18 (2).”

In that view of the matter, reliance on the decision of Lokhande’s case (supra) by Mr. Mani appearing for the appellants herein cannot thus but be said to be totally misplaced more so by reason of the fact that the issue pertaining to furnishing of stamp paper and subsequent engrossment of the final decree thereon did not fall for consideration neither the observations contained in the judgment could be said to be germane to the issue involved therein. The factual score as noticed in paragraph 10 of the Report Shankar Balwant Lokhande (dead) by L.Rs. Vs. Chandrakant Shankar Lokhande and Another, makes the situation clear enough to indicate that the Court was not called upon to adjudicate the issue as raised presently. The observations thus cannot, with due deference to the learned Judge, but be termed to be an obiter dictum.

 It is in this context that we rather feel it inclined to record the observation of Russel L.J. in Rakhit v. Carty L.R. (1990) 2 Q.B. 315 wherein at page 326/327 of the report it has been observed:

“Miss Foggin has now submitted to this court that the decision in Kent’s case was indeed per incuriam in that she submits that the judgment of Ormrod L.J. with which Dunn L.J. and Sir Sebag Shaw agreed, made no reference to section 67(3), that if the Court of Appeal had been referred to that subsection and had regard to its terms, the decision would plainly have been different and that consequently this court should not follow Kent’s case. I have already expressed my own views as to the proper construction of section 44(1) and the impact of section 67(3).

In Rickards v. Rickards [1990] Fam. 194 Lord Donaldson of Lymington M.R. said:

“The importance of the rule of stare decisis in relation to the Court of Appeal’s own decisions can hardly be overstated. We now sometimes sit in eight divisions and in the absence of such a rule, the law would quickly become wholly uncertain. However the rule is not without exceptions, albeit very limited. These exceptions were considered in Young v. Bristol Aeroplane Co. Ltd. [1944] K.B. 718: Morelle Ltd. v. Wakeling [1955] 2 Q.B. 379 and more recently, in Williams v. Fawcett [1986] Q.B. 604, relevant extracts from the two earlier decisions being set out at pp. 615-616 of the report. These decisions show that this court is justified in refusing to follow one of its own previous decisions not only where that decision is given in ignorance or forgetfulness of some inconsistent statutory provision or some authority binding upon it, but also, in rare and exceptional cases, if it is satisfied that the decision involved a manifest slip or error. In previous cases the judges of this court have always refrained from defining this exceptional category and I have no intention of departing from that approach save to echo the words of Lord Greene M.R. in Young’s case, p. 729, and Sir Raymond Evershed M.R. in Morelle’s case p. 406, and to say that they will be of the rarest occurrence.

In my judgment, the effect of allowing this appeal will produce no injustice to the plaintiff for the Rent Act 1977 provided him and his advisers with ample opportunity to protect his interests by the simple process of inspecting the public register of rents before letting the flat to the defendant. A fresh application for registration or a fair rent could then have been made enabling that fair rent to be recoverable from the commencement of the defendant’s tenancy.

For my part, I am satisfied that this court erred in Kent v. Millmead Properties Ltd. 44 P & C.R. 353 and that following the observations of Lord Donaldson of M.R. in Rickards’ case, this court is justified in declining to follow Kent’s case.

As a matter of fact, a three Judge Bench of this Court in the case of Municipal Committee, Amritsar Vs. Hazara Singh, has been pleased to record that on facts, no two cases could be similar and the decision of the court which were essentially on question of facts could not be relied upon as precedent, for decision of the other cases. Presently the fact situation in the decision of Lokhande (supra) and the matter under consideration are completely different, as such the decision in Lokhande cannot by any stretch be termed to be a binding precedent. In Amar Nath Om Prakash and Others Vs. State of Punjab and Others, , a three Judges Bench of this Court in no uncertain terms stated:

“We consider it proper to say, as we have already said in other cases, that judgments of courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for Judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes: their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. v. Horton : 1951 AC 737, Lord MacDermott observed:

The matter cannot, of course, be settled merely by treating the ipsissima verba of Wills. J., as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by the most distinguished Judge.

In Home Office v. Dorset Yacht Co. Ltd. (1970) 2 All ER 294 Lord Reid said:

Lord Atkin’s speech (Donoghue v. Stevension 1932 All ER Rep 1…is not to be treated as if it was a statutory definition. It will require qualification in new circumstances.

Megarry, J. in (1971) 1 WLR 1062 observed:

One must not, of course, construe even a reserved judgment of even Russel, L.J. as if it were an Act of Parliament.

And, in Herrington v. British Railways Board (1972) 2 WLR 537, Lord Morris said:

There is always peril in treating the words of a speech or a judgment as though they were words in a legislative enactment and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case.”

 Further in Municipal Corporation of Delhi Vs. Gurnam Kaur, , this Court in paragraph 11 of the report observed,

“11. Pronouncements of law, which are not part of the ratio decidendi are classed as obiter dicta and are not authoritative. With all respect to the learned Judge who passed the order in Jamna Das case (Writ Petition Nos. 981-82 of 1984) and to the learned Judge who agreed with him, we cannot concede that this Court is bound to follow it. It was delivered without argument, without reference to the relevant provisions of the Act conferring express power on the Municipal Corporation to direct removal of encroachments from any public place like pavements or public streets, and without any citation of authority. Accordingly, we do not propose to uphold the decision of the High Court because, it seems to us that it is wrong in principle and cannot be justified by the terms of the relevant provisions. A decision should be treated as given per incuriam when it is given in ignorance of the terms of a statute or of a rule having the force of a statute. So far as the order shows, no argument was addressed to the court on the question whether or not any direction could properly be made compelling the Municipal Corporation to construct a stall at the pitching site of a pavement squatter. Professor P.J. Fitzgerald, editor of the Salmond on Jurisprudence, 12th Edn. Explains the concept of sub silentio at p. 153 in these words:

A decision passes sub silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the court or present to its mind. The court may consciously decide in favour of one party because of point A, which it considers and pronounces upon. It may be shown, however, that logically the court should not have decided in favour of the particular party unless it also decided point B in his favour but point B was not argued or considered by the court. In such circumstances, although the case had a specific outcome, the decision is not an authority on point B. Point B said to pass sub silentio.”

 In one of its latest judgment however this Court in Dr. Vijay Laxmi Sadho Vs. Jagdish, , though apparently sounded a contra note but the safeguards introduced therein does not however create any problem for a decision in the matter under consideration. Anand, C.J. while deprecating the characterisation of earlier judgment as ‘per incuriam’ on ground of dissent observed:

“that a Bench of coordinate jurisdiction ought not to record its disagreement with another Bench on a question of law and it would be rather appropriate to refer the matter to a larger Bench for resolution of the issue”.

Anand, C.J. however has been extremely careful and cautious enough to record “it is appropriate that the matter be referred to a larger Bench for resolution of the issue rather than to leave two conflicting judgments to operate creating confusion” (emphasis supplied).

 In the contextual facts, the question of there being a conflicting judgment as indicated hereinbefore or creation of any confusion does not and cannot arise by reason of the fact that the observations in Lokhande (supra) was on the peculiar set of facts under the Limitation Act of 1908 – no Commissioner’s report was available, neither any final decree passed, as such the issue before the court was completely different having regard to the factual state of the matter.

The decision has thus no manner of application in the contextual facts neither the decision of this Court in W.B. Essential Commodities supply Corpn. (supra) be of any assistance since there was no exposition of law but a mere expression of a possibility only, as such at best be termed to be an expression of opinion incidentally. The latter decision thus also does not render any assistance to the submission of Mr. Mani rather lends credence to the observations of this Court as noticed hereinbefore.

Incidentally, the Calcutta High Court in one of its very old decision in the case of Kishori Mohan Pal Vs. Provash Chandra Mondal and Others, while interpreting Article 182 under the Limitation Act of 1908 has been rather categorical in recording that the date of the decree under the Article is the day on which the judgment is pronounced and limitation begins to run from that day although no formal decree can be drawn up in the partition suit until paper bearing a proper stamp under Article 45 of the Stamp Act is supplied to the Court. Richardson, J. with his usual felicity of expression stated as below:

“In this Court the learned Vakil for the respondents has said all that could be said for his clients. He has in particular called out attention to the fact that, although the decree is dated the 25th March 1914, it is expressed to be “passed in terms of the Commissioner’s report, dated the 27th June 1914 which and the map filed along with it do form parts of the decree.” The 25th March 1914 is, nevertheless, the correct date of the decree because that is the day on which the judgment was pronounced (Order 20, rule 7, Civ. Pro Code). The report of the Commissioner appointed to make the partition had already been received, the report was adopted by the judgment subject to certain variations and in connection with those variations, certain directions of a ministerial character were given to the Commissioner which the Commissioner had merely to obey. The order sheet shows that the Commissioner submitted a report on the 27th June 1914. That report has not been placed before us. But I have no doubt that it did no more than state that the Commissioner had done what he was directed to do by the judgment of the 25th March 1914. That judgment was the final judgment in the suit and it was so regarded by the Subordinate Judge who delivered it. The decree is in accordance therewith. The directions in the judgment were sufficient to indicate how the decree should be framed and there was no need of any further judgment.

The delay in signing the decree was due not to any fault of the Court or to any cause beyond the control of the parties but solely to the delay of the parties in supplying the requisite stamped paper. Any party desiring to have the decree executed might have furnished the stamped paper at any time leaving the expense of providing it to be adjusted by the Court in connection with the costs of the execution.

The circumstances disclose no ground for saying that limitation did not run from the date of the decree as provided by article 182 of the Limitation Act, and if authority be needed, reference may be made to Golam Gaffar Mandal v. Golijan Bibi 1898 (25) Cal. 109 and Bhajan Behari Shah v. Girish Chandra Shaha 17 C.W.N. 959.

I may add that much time and labour would be saved if the court would resist such attempts as the present to go behind the plain words of a positive enactment.”

 Though several other old and very old decisions were cited but in view of the pronouncement lately by this Court and as discussed herein before, we are not inclined to deal with the same in extenso, save however recording that contra view recorded earlier by different High Courts cannot be termed to be good law any longer.

The decision in Lokhande’s case (supra) cannot but be said to be on the special facts situation and is thus in any event clearly distinguishable.

Be it noted that the legislature cannot be sub-servant to any personal whim or caprice. In any event, furnishing of engrossed stamp paper for the drawing up of the decree cannot but be ascribed to be a ministerial act, which cannot possibly put under suspension a legislative mandate. Since no conditions are attached to the decree and the same has been passed declaring the shares of the parties finally, the Court is not required to deal with the matter any further – what has to be done – has been done. This test thus should be – Has the court left out something for being adjudicated at a later point of time or is the decree contingent upon the happening of an event – i.e. to say the Court by its own order postpones the enforceability of the order – In the event of there being no postponement by a specific order of Court, there being a suspension of the decree being unenforceable would not arise. As a matter of fact, the very definition of decree in Section 2(2) of the C.P. Code lends credence to the observations as above since the term is meant to be ‘conclusive determination of the rights of the parties’.


Cases Referred

Dr. Vijay Laxmi Sadho Vs. Jagdish, (2001) 1 JT 382 : (2001) 1 SCALE 63 : (2001) 2 SCC 247 : (2001) 1 SCR 95
Shankar Balwant Lokhande (dead) by L.Rs. Vs. Chandrakant Shankar Lokhande and Another, AIR 1995 SC 1211 : (1995) 3 JT 186 : (1992) 2 LLJ 18 : (1995) 2 SCALE 318 : (1995) 3 SCC 413 : (1995) 2 SCR 776 : (1992) 1 SLJ 7 : (1995) 1 UJ 707
Yeswant Deorao Deshmukh Vs. Walchand Ramchand Kothari, AIR 1951 SC 16 : (1950) 1 SCR 852 : (1950) SCR 852 Supp
Kishori Mohan Pal Vs. Provash Chandra Mondal and Others, AIR 1924 Cal 351 : 72 Ind. Cas. 646
Municipal Committee, Amritsar Vs. Hazara Singh, AIR 1975 SC 1087 : (1975) 1 SCC 794 : (1975) 3 SCR 914 : (1975) 7 UJ 366
Biswapati Dey Vs. Kennsington Stores and Others, AIR 1972 Cal 172 : (1975) 1 ILR (Cal) 266
Amar Nath Om Prakash and Others Vs. State of Punjab and Others, AIR 1985 SC 218 : (1984) 2 SCALE 769 : (1985) 1 SCC 345 : (1985) 2 SCR 72 : (1986) 62 STC 130
Municipal Corporation of Delhi Vs. Gurnam Kaur, AIR 1989 SC 38 : (1988) 4 JT 11 : (1988) 2 SCALE 1155 : (1989) 1 SCC 101 : (1988) 2 SCR 929 Supp : (1988) 2 UJ 713
West Bengal Essential Commodities Supply Corporation Vs. Swadesh Agro Farming and Storage Pvt. Ltd. and Another, AIR 1999 SC 3421 : (1999) 6 JT 599 : (1999) 123 PLR 618 : (1999) 5 SCALE 504 : (1999) 8 SCC 315 : (1999) 2 SCR 399 Supp : (2000) 1 UJ 107 : (1999) AIRSCW 3401 : (1999) 7 Supreme 629
Subhash Ganpatrao Buty and Another Vs. Maroti and Others, AIR 1975 Bom 244 : (1975) 77 BOMLR 517 : (1975) MhLj 244
Bholanath Karmakar and Others Vs. Madanmohan Karmakar and Others, AIR 1988 Cal 1 : (1988) 1 CALLT 1 : 92 CWN 428
Smt. Kotipalli Mahalakshmamma Vs. Kotipalli Ganeswara Rao and Others, AIR 1960 AP 54