TaxTMI 
TaxTMI 
TaxTMI 
2018 (3) TMI 1496
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..../4/1, 25/3/3 and 25/3/6 situated in the revenue estate of Village Ghuman, Tehsil Batala, District Amritsar (Punjab), to one Rura Singh son of Surendra Singh (predecessor of the respondents) vide Gift Deed dated 6th March, 1963. The said land was ancestral land in the hands of Ujjagar Singh wherein Mohinder Singh (predecessor of the appellants) and others were coparceners. 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 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: "Stated that decree for declaration for ....
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.... the possession of the land in question cannot be granted to the decree holder in execution of the same. This issue is decided against the decree-holder. In view of my above said finding the application is dismissed. File be consigned to the Record Room." (emphasis supplied) 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 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 Uj....
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....appearance of the parties. I am of the considered opinion that only on the ground that said order dated 19.08.1972 relates with the dismissal of the execution it cannot be said that decree sheet was not prepared during the proceedings of the said execution. It has already been held that the decree sheet was prepared during the execution bearing No. 32 of 1971. Even if it is considered that the decree sheet was prepared on dated 29.07.1972 and not on 19.08.1972 as discussed above even then the present suit is within the period of limitation i.e. 3 years as per article 2(b) of the Punjab Limitation (Customs) Act 1920. 14. It is also argued by counsel for the defendants that while filing the replication inconsistent pleas taken by the plaintiff from the plaint already fled by him and the replication filed by the plaintiff can be taken into consideration. In support of his contention, counsel for the defendants has relied upon 2001 (3) Civil Court Cases 565 (Rajasthan) Gurjant Singh Versus Krishan Chander and Ors. But I am of the considered view that in fact the defendants themselves have taken the inconsistent pleas by filing the amended written statement from the original written....
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....d Sub Judge 1st Class, Batala with the observation that it enures to the benefit of the decree holder after the death of the vendor and same was ultimately ordered to be dismissed on 02.02.1974 and if one computed the period of limitation from the day of preparation of decree i.e. in the year 1972 because the day when the execution application has been dismissed by Court of Shri A.S. Rampal, the then Sub Judge 1st Class, Batala, by observing then the suit of respondent no.1 is certainly within limitation." 9. The respondents then preferred a second appeal before the High Court of Punjab and Haryana at Chandigarh, being Regular Second Appeal No.166 of 2012 (O&M), which has been allowed by the learned Single Judge of the High Court, vide judgment dated 25th April, 2012. The High Court accepted the argument of the respondents in the following words: "I have carefully considered the aforesaid contentions. It is undisputed that the earlier suit was decided on the basis of compromise vide judgment dated 20.08.1963. From the judgments of the courts below, it appears that formal decree in the said suit was not drawn immediately but was drawn on 19.08.1972 when plaintiff moved for the sa....
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....en 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. (1975) 1 SCC 725, 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 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 Ac....
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....ontended that Section 14 of the 1963 Act was limited to accord protection to a litigant against the bar of limitation when he institutes civil proceeding, which by reason of some technical defects cannot be decided on merits and is dismissed. To buttress this submission, reliance has been placed on paragraphs 21, 22 and 31 in particular, of the decision in the case of Consolidated Engineering Enterprises (supra). According to the respondents, the subject suit was barred by limitation as it was not instituted within the limitation period specified in Article 2(b) of the Schedule to the 1920 Act and provisions of Section 14 will be of no avail to the plaintiff. Furthermore, no explanation or justification whatsoever has been offered by the plaintiff for the period between 2nd February, 1974 (when the third execution petition was dismissed) and 11th June, 1974 (when the suit for possession was filed by the plaintiff). The question of showing any indulgence, much less by invoking Section 14 of the 1963 Act, does not arise. The respondents pray for dismissal of this appeal and affirmation of the view taken by the High Court whilst allowing the second appeal filed by them. 12. We have h....
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.... the basis of the compromise between the plaintiff - Mohinder Singh (predecessor of the appellants) and defendant - Rura Singh (predecessor of the respondents). However, that being a conditional decree, the right to sue for possession would not have accrued until the death of Ujjagar Singh which happened only on 14th January, 1971. The appellants are not invoking the first part of Article 2(b), which postulates that the time from which period commences would be the date on which the right to sue accrues. First, because declaratory decree was passed on 20.8.1963; second, because it was a conditional decree and was unenforceable during the life time of Ujjagar Singh; third, because Ujjagar Singh died on 14th January, 1971 but the fresh suit was filed on 11th June, 1974 due to the observation made by the Executing Court in its order dated 2nd February, 1974. Resultantly, the appellants are relying on the second part of Article 2(b), which postulates that the time from which period would commence to file a suit for possession would be the date on which the "declaratory decree is obtained". 15. The substratum of the claim of the plaintiff is founded on the factum of date on which the d....
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....pression "the declaratory decree is obtained", therefore, assumes significance. If the legislature intended to provide it differently, it could have couched the provision as "the date on which the declaratory judgment is passed". The legislature in enacting 1920 Act, however, consciously used the expression "the declaratory decree is obtained", which intrinsically includes the date on which a formal decree is drawn or prepared and not merely the date on which a declaratory judgment is passed by the Court. Taking any other view would be rewriting the expression "the declaratory decree is obtained" and doing violence to the legislative intent. Besides, the expression "obtained" in Article 2(b) is prefixed by expression "is"; and further it follows with expression "whichever is later". Even this would reinforce the position that the date on which the declaratory decree is drawn could ignite the period of limitation for instituting a suit for possession and not a mere declaratory judgment rendered by the Court in the previous suit (for declaration simplicitor). Taking any other view will render the last part of Article 2(b), providing for "whichever is later" nugatory and otiose. 18....
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....appen on the fulfillment of which alone the decree can be executed it is not a conditional decree and is capable of execution from the very date it is passed (Yeshwant Deorao v. Walchand Ramchand AIR 1951 SC 16). Secondly, when there is a legislative bar for the execution of a decree then enforceability will commence when the bar ceases. 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 rights 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 and sealed. It is in this context that the observations of this Court in Shankar Balwant Lokhande v. Chandrakant Shankar Lokhande (1995) 3 SCC 413 have to be understood. These observations do not apply to a money decree and, therefore, appellant can derive no benefit from them." (emphasis supplied) 20. As in the present case, even though the declaratory judgment was pronounced by the Court in the previous suit on 20th August, 1963, on the basis of compro....
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....defect of jurisdiction. However, Section 14 of the Limitation Act is wide in its application, inasmuch as it is not confined in its applicability only to cases of defect of jurisdiction but it is applicable also to cases where the prior proceedings have failed on account of other causes of like nature. The expression 'other cause of like nature' came up for the consideration of this Court in Roshanlal Kuthalia v. R.B. Mohan Singh Oberai (1975) 4 SCC 628 and it was held that Section 14 of the Limitation Act is wide enough to cover such cases where the defects are not merely jurisdictional strictly so called but others more or less neighbours to such deficiencies. Any circumstances, legal or factual, which inhibits entertainment or consideration by the Court of the dispute on the merits comes within the scope of the Section and a liberal touch must inform the interpretation of the Limitation Act which deprives the remedy of one who has a right." (emphasis supplied) 22. The expanse of Section 14 of the Act, therefore, is not limited to mere jurisdictional issue but also other cause of a like nature. Taking cue from this decision, the appellant would contend that the plaintiff immed....
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....sion on 11th June, 1974. The argument of the respondents that the plaintiff did not offer any explanation for the period from 2nd February, 1974 till 11th June, 1974 does not impress us at all. That period is only of four months and once the period from 14th January, 1971 till 2nd February, 1974 was to be excluded as being time spent by the plaintiff in pursuing other civil proceedings in good faith, there would be no delay in filing of the suit. What is posited by Section 14 of the 1963 Act is the exclusion of time of proceeding bona fide in Court without jurisdiction or other cause of a like nature, for which the concerned Court is unable to entertain the lis. The fact that no explanation whatsoever has been offered for the period from 2nd February, 1974 to 11th June, 1974, therefore, would not whittle down the rights of the plaintiff to institute and pursue suit for possession of the subject land on the basis of declaratory decree. 24. That takes us to the last question as to whether Section 14 of the 1963 Act has any application to the case on hand. This issue need not detain us. Section 5 of the 1920 Act is explicit and it unambiguously postulates that the suit referred to ....