AI Drafter 
TaxTMI 
TaxTMI 
2001 (8) TMI 1384
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....nds derived from the Latin "ex sequi," meaning, to follow out, follow to the end, or perform, and equivalent to the French executor", so that, when used in their proper sense, all three convey the meaning of carrying out some act or course of conduct to its completion (vide vol. 33- Corpus Juris Scundum). Lord Denning in Re Overseas Aviation Engineering (G.B) Ltd. : (L.R. 1963 : Ch. 24) has attributed a meaning to the word 'execution' as the process for enforcing or giving effect to the judgment of the court and stated : "The word "execution" is not defined in the Act. It is, of course, a word familiar to lawyers. "Execution" means, quite simply, the process for enforcing or giving effect to the judgment of the court : and it is "completed" when the judgment creditor gets the money or other thing awarded to him by the judgment. That this is the meaning is seen by reference to that valuable old book Rastill Termes de la Ley, where it is stated : "Execution is, "where Judgment is given in any Action, that the plaintiff shall "recover the land, debt, or damages, as the case is; and when any "Writ is awarded to put him in Possession, or to do any other "thing whereby the ....
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....Limitation Act of 1908 provided a period of three years for the execution of decree. Be it clarified that since the reference to the 1908 Act would be merely academic, we refrain ourselves from recording the details pertaining to Article 182 save what is noted hereinbefore. It is in this context, however, the Report of the Law Commission on the Act of 1963 assumes some importance, as regards the question of limitation and true purport of Article 136. Before elaborating any further, it would be convenient to note the Report of the Law Commission which reads as below: "170. Article 182 has been a very fruitful source of litigation and is a weapon in the hands of both the dishonest decree-holder and the dishonest judgment debtor. It has given rise to innumerable decisions. The commentary in Rustomji's Limitation Act (5th Edn.) on this article itself covers nearly 200 pages. In our opinion the maximum period of limitation for the execution of a decree or order of any civil court should be 12 years from the date when the decree or order became enforceable (which is usually the date of decree) or where the decree or subsequent order directs any payment of money or the delivery of ....
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....ed and the legal representatives of the original plaintiff were impleaded on 8.3.1984 and after incorporation of the names of the legal heirs in the suit register, an execution application was presented before the District Court on 21.5.1984. To have the factual score complete on this count, be it noted that in the mear while a Civil Revision Petition was filed before the High Court (C.R.P. No.2374 of 1984) against the order of impleadment but the same however, was dismissed on 8.10.1984 The records depict that on 11th December 1984, the execution petition was dismissed with a finding that since the same was filed beyond twelve years, the execution petition was barred by limitation. Subsequently, a Revision Petition was filed against said order (C.R.P. No. 2000 of 1985) and on 10.3.1989, the High Court however did set aside the order of the executing court and directed that the question of limitation should be considered afresh. The records further depict that on 13th July, 1989, the District Court held that the Execution Petition is not barred by limitation. As against the order of the District Court dated 13th July, 1989, a Revision Petition was filed before the High Court by ....
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.... cast: of Biswapati Dev v. Kennsington Stores and Ors., AIR (1972) Calcutta P2) 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 on 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 of 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 v. Maroti Krishnaji Dorlikar, AIR (1975) Bom. 244. The Full Bench in the decision observed : "......it is the duty of the Court to interpret the lan....
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.... 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 acceptance 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 26th March, 1984? The answer if it be stated to be in the affirmative, would lead to an utter absurdity and a mockery of th....
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....r which persons may suppose themselves to be in peaceful possession of their property and capable of transmitting the estates of which they are in possession, without any apprehension of the title being impugned by litigation in respect of transactions which occurred at a distant period, when evidence in support of their own title may be most difficult to obtain." Recently this Court in W. B. Essential Commodities Supply Corporation v. Swadesh Agro Farming and Storage Pvt Ltd and Anr., [1999] 8 SCC 3 I 5 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 Yeshwant 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 went on 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 ....
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....cision (supra) was decided against the judgment of the High Court recording a finding that limitation for executing a final decree in a suit for partition starts on the date on which the final decree is passed and not from any subsequent date on which the parties supply the non-judicial stamp for engrossing the final decree and when the court engrosses the final decree on The stamp paper and signs it - this view of the High Court was negatived and this Court came to a contra conclusion as noticed hereinbefore. The W. B. Essential Commodities Supply Corpn.'s decision (supra) has been rather cautious in recording certain situations in which a decree may not be enforceable on the date it is passed (emphasis supplied). It is thus not a pronouncement of law as such but an exception recorded in certain situations, the words 'may not be' as emphasised are rather significant. The word 'May' in common acceptation mean and imply-'a possibility' depicting thereby availability of some fluidity and thus not conclusive. This aspect of the matter is required to be clarified by reason of the observations as laid down in the third situation (noticed above)-Needless to....
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....ty 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 applicants 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, mote so by reason of the fact that the issue pertaining to furnishing of stamp pape....
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....tional 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 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 defandant'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 Lymington 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 v. Hazara Singh, [1975] 1 SCC 794 has been pleased to record that on facts, no two cases could be ....
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....e not authoritative. With all respect to 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 payments 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 a pitching site of a payment squatter. Professor P.J. Fitzgerald, editor of the Salmond on Jurisprudence, 12th Edn. Explains the concept of sub silentio at ....
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....on of opinion incidently. 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. Incidentlly, the Calcutta High Court in one of its very old decision in the case of Kishori Mohan Pal v. Pravash Chandra Mondal and Ors., AIR (1924) Calcutta 351 while interpreting Article 182 under the Limitation Act of 1908 has seen 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 a 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 our attention to the fact that, although the decree is dated the 25th March 1914, it is expressed to be "passed in terms of Commissioner's report dated the 27th June 1914 which and the map filed along with it do form parts of the d....
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....ituation 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. The 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 C.P. Code lends creoence to the observations as above since the term is meant to be 'conclusive determination of the rights of the parties.' On the next c....
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....hat enforcement includes the whole process of getting an award as well as execution since execution otherwise means due performance of all formalities necessary to give validity to a document. We are however unable to record our concurrence therewith. Prescription of a twelve year certain period cannot possibly be obliterated by an enactment wholly unconnected therewith. Legislative mandate as sanctioned under Article 136 cannot be kept in abeyance unless the self same legislation makes a provision therefor. It may also be noticed that by the passing of a final decree, the rights stand crystalised and it is only thereafter its enforceability can be had though not otherwise. As noticed above the submission of Mr. Manu apparently seemed to be very attractive specially in view of the decision in Lokhande's case (supra). In Lokhande's case as noted above, this Court was not called upon to decide the true perspective of Article 136 of the Act of 1963 rather decided the issue in the peculiar fact situation of the matter on the basis of the Limitation Act of 1908 and in particular, Article 182. This Court was rather specific on that score and it is on that score only that the A....
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....an Independence Adoptation of Central Acts and Ordinance Order 1948 and the Adoptation of Laws Order 1950 allowed this fiscal statute to remain on the statute book. The legislature while engrafting 1963 Act, it is presumed and there being a golden canon of interpretation of statutes, that it had in its mind the existing Indian Stamp Act before engrafting the provisions under Article 136. A latter statute obviously will have the effect of nullifying an earlier statute in the event of there being any conflict provided however and in the event there is otherwise legislative competency in regard thereto. As regards the legislative competency, there cannot be any doubt which can stand focussed neither there is any difficulty in correlating the two statutes being operative in two different and specified spheres. Enforceability of the decree cannot be the subject matter of Section 35 neither the limitation can be said to be under suspension. The heading of the Section viz., "Instrument not duly stamped inadmissible in evidence etc", (emphasis supplied) itself denotes its sphere of applicability : it has no relation with the commencement of period of limitation. As noticed above 'execu....