Important Points
1. The period of limitation under Article 136 of the Limitation Act runs from the date of the decree and not from the date when the decree is actually drawn up and signed by the Judge.
2. Sections 5 and 12(2) of the Limitation Act are inapplicable to an execution petition.
3. In order to invoke the maxim actus curiae neminem gravabit there must be a nexus between the act of the Court complained of and the hardship or prejudice suffered by the party.

Headnote:(i) Limitation Act, 1963-Article 136 r/w Order XXI Rule 11(2) and Order XX Rules 6A(2)(b) and 7-Execution of decree - Limitation -Starting point - Limitation runs from date of decree and not from date when decree is actually drawn up and signed-Decree would be deemed to come into existence immediately on pronouncement of judgment-Delay in preparing decree cannot be taken advantage of to get excluded time taken for drawing up decree-Last part of judgment can be executed-Sections 5 and 12 of Limitation Act not applicable to execution petition.
       Held : A decree or order is said to be enforceable when it is executable. For a decree to be executable, it must be in existence. A decree would be deemed to come into existence immediately on the pronouncement of the judgment. But it is a fact of which judicial notice may be taken of that drawing up and signing of the decree takes some time after the pronouncement of the judgment; the Code of Civil Procedure itself enjoins that the decree shall be drawn up expeditiously and in any case within 15 days from the date of the judgment. If the decree were to bear the date when it is actually drawn up and signed then that date will be incompatible with the date of the judgment. This incongruity is taken care of by Order XX Rule 7 CPC which, inter alia, provides that the decree shall bear the date and the day on which the judgment was pronounced. (Para 6)
       To enable a person who would like to execute the decree before it is actually drawn up, Rule 6A in Order XX is inserted in the Code by the Amendment Act, 1976. Rule 6A enjoins that the last paragraph of the judgment shall state in precise terms the relief which has been granted by such judgment. It has fixed the outer time limit of 15 days from the date of the pronouncement of the judgment within which the decree must be drawn up. In the event of the decree not so drawn up, clause (a) of sub-rule (2) of Rule 6A enables a party to make an appeal under Rule 1 of Order XLI CPC without filing a copy of the decree appealed against and for that purpose the last paragraph of the judgment shall be treated as a decree. For the purpose of execution also, provision is made in clause (b) of the said sub-rule which says that so long as the decree is not drawn up, the last paragraph of the judgment shall be deemed to be a decree. Clause (b) has thus enabled the party interested in executing the decree before it is drawn up to apply for a copy of the last paragraph only, without being required to apply for a copy of the whole of the judgment. It further lays down that the last paragraph of the judgment shall cease to have the effect of the decree for purposes of execution or for any other purposes when the decree has been drawn up. It follows that the decree became enforceable the moment the judgment is delivered and merely because there will be delay in drawing up of the decree, it cannot be said that the decree is not enforceable till it is prepared. This is so because an enforceable decree in one form or the other is available to a decree holder from the date of the judgment till the expiry of the period of limitation under Article 136 of the Limitation Act. (Paras 7, 8 & 9)
       There may, however, be situations in which a decree may not be enforceable on the date it is passed. First, a case where a decree is not executable until the happening of a given contingency, for example, when a decree for recovery of possession of immoveable property directs that it shall not be executed till the standing crop is harvested, in such a case time will not begin to run until harvesting of the crop and the decree becomes enforceable from that date and not from the date of the judgment/decree. But where no extraneous event is to happen 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. 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 immoveable 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. (Para 11)
       Under the scheme of the Limitation Act, execution applications, like plaints have to be presented in the Court within the time prescribed by the Limitation Act. A decree holder does not have the benefit of exclusion of the time taken for obtaining 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. Section 5 of the Limitation Act has no application; Section 12(2) of the Limitation Act is also inapplicable to an execution petition. 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 provisions of the Limitation Act as well as of Order XX and Order XXI Rule 11 C.P.C. which is clearly impermissible. (Para 18)
       Therefore the period of limitation under Article 136 of the Limitation Act runs from the date of the decree and not from the date when the decree is actually drawn up and signed by the Judge. (Para 19)
       In the instant case, the decree is a money decree. The decree became enforceable immediately on the pronouncement of the judgment as thereupon a deemed decree came into existence. It cannot, therefore, be said that the delay in drawing up of the decree renders it unenforceable from the date of the judgment. (Para 12)
       (ii) Limitation Act, 1963-Sections 5 and 12-Applicability to execution petition-Sections 5 and 12(2) are inapplicable to an execution petition. (Para 18)
       (iii) Code of Civil Procedure, 1908 - Order XX, Rule 6A r/w Order XXI, Rule 11(2)-Execution of decree - Purpose, scope and ambit of Rule 6A. (Paras 6, 8 & 9)
       (iv) Actus curiae neminem gravabit-An act of Court shall not prejudice no man-Condition precedent to invoke above maxim-There must be nexus between act of Court complained of and hardship or prejudice suffered by party.
       In the instant case money suit was decreed on 8.3.1982. Decree was drawn up and signed on 9.7.1983. Execution petition was filed on 5.6.1995. The High Court held that the execution petition was barred by limitation under Article 136 of the Limitation Act. The decree holder contended that due to the Court taking more than a year and three months to draw up and sign the decree, the period of limitation of 12 years, available to the appellant, is cut short so the starting point of limitation has to be computed from the date of signing of the decree to avert hardship and prejudice to him.
       Held : The argument is obviously based on the maxim “actus curiae neminem gravabit” (an act of the Court shall prejudice no man). It would apply to relieve a party of the hardship or prejudice caused due to the act of the Court. But to invoke this maxim it is not enough to show that there is delay in drawing up of the decree, it must also be shown that the appellant has suffered some hardship or prejudice due to the delay of the Court. In other words, there must be a nexus between the act of the Court complained of and the hardship or prejudice suffered by the party. There is no nexus between drawing up of the decree after more than a year from the date of the judgment and its execution petition getting barred by limitation. It may be noticed here that the scheme of the Code, having taken note of the delay in preparation and signing of the decree, provides enough safeguards to the parties to execute the decree from the date of the judgment/decree till the expiry of the period of limitation. (Paras 13 & 16)
       The decree-holder could have enforced the money decree immediately on the pronouncement of the judgment by making an oral application under sub-rule (1) of Rule 11 of Order XXI, C.P.C. For filing an application under sub-rule (2) of Rule 11 C.P.C., a copy of the decree need not be enclosed. What all sub-rule (3) of the said Rule says is that the Court may require the applicant under sub-rule (2) to produce a certified copy of the decree. On being required to do so, it could have produced the last portion of the judgment which has the effect of the decree under Rule 6A of Order XX C.P.C. It is not a case where the appellant lost the period of limitation because of any act of the Court but it is a case where the appellant failed to apply for execution of the decree for reasons best known to it and now seeks to take advantage of the fact that the Court took time for drawing up and signing the decree. In our view, the delay in drawing up and signing the decree did not cause any prejudice to him. There is no nexus between the late drawing up of decree by the Court and the filing of the execution petition by the appellant after the expiry of the limitation. (Para 17)

Judgment

Syed Shah Mohammed Quadri, J. -Leave is granted.

2. The short but a question of some significance which arises for consideration in this appeal, is whether the period of limitation, under Article 136 of the Limitation Act, 1963, will start from the date of the decree or from the date when the decree is actually drawn up and signed by the Judge.

3. The facts giving rise to the question may be noticed here.

On June 11, 1980, the appellant filed Suit No. 504 of 1980 in the High Court of Judicature at Calcutta against the respondents for recovery of a sum of Rs. 82,933.80p with interest. On March 8, 1982, the High Court decreed the suit ex-parte for the said amount with interest thereon at the rate of 6% per annum. However, the decree was actually drawn up and signed by the learned Judge on August 9, 1983. The appellant filed application, G.A. No. 374 of 1995, for execution of the decree before the High Court on June 5, 1995. The learned Executing Judge ordered execution of the decree. But, on appeal by the respondents, the Division Bench of the High Court set aside the order of the learned Executing Judge holding that the execution petition was barred by limitation under Article 136 of the Limitation Act and thus allowed the appeal on September 30, 1997. That judgment and order is challenged, by special leave, in this appeal.

4. Mr. Tapas Ray, learned senior counsel appearing for the appellant, has argued that for purposes of Article 136 of the Limitation Act, the starting point of limitation is not the date of the decree but the date when the decree becomes enforceable; it was only when the decree was actually drawn up and signed, after a lapse of one year and three months of delivering the judgment, that it became enforceable, and from that date the appellant was entitled to the benefit of full period of limitation; so its application for execution could not be held to be barred by limitation. According to Mr. Ray, for an application under Order XXI Rule 11(2) of the Code of Civil Procedure, a copy of the decree must be available and the period of limitation must be reckoned from the date when the Court was in a position of making a copy of the decree available as it was on that date the decree became executable. The learned counsel urged that Rule 11(2) of Order XXI must be read with Rules 6 and 7 of Order XX CPC and so read, for purposes of execution, the decree would come into existence only when it was actually drawn up and signed and not on the date when the judgment was pronounced.

5. Mr. P. Bhaskar Gupta, learned senior counsel for the respondents, has submitted that under Rule 6A(2)(b) of Order XX CPC., for purposes of execution of the decree the last portion of the judgment itself will be treated as a decree, irrespective of the date when the decree is actually drawn up and signed and that under Rule 7 of Order XX CPC the decree has to bear the date of the judgment; from the date of the judgment holder had the opportunity of executing the decree so he cannot have any grievance for late drawing up of the decree and stamping the date of the judgment on it. Learned senior counsel invited our attention to sub-rule (3) of Rule 11 of Order XXI CPC nd contended that the Executing Court might require the applicant seeking execution of the decree under sub-rule (2) to produce a certified copy of the decree, but the execution petition need not be accompanied by a certified copy of the decree. Sections 12(2) and 5 of the Limitation Act, submitted the learned counsel, did not apply to execution petitions and if the contention of the appellant were to be accepted then it would amount to rewriting those provisions so as to provide for excluding the time for perparation and signing of the decree; therefore, that contention is liable to be rejected.

6. On the above contentions, we shall commence the determination of the question by first reading Article 136 of the Limitation Act which is as follows :

“136. For the execution of

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1999 Supreme(SC) 1020

Cases Referred (5)