IMPORTANT POINT
An order rejecting application for condonation of delay in filing appeal and consequent dismissal of appeal would not amount to decree within meaning of Section 2(2) of C.P.C.

Headnote:(i) Indian Limitation Act, 1963-Article 136-Code of Civil Procedure, 1908-Order XXI r/w Section 2(2) -Execution of decree-Time limit for- Trial Court passed decree on 14-12-1970-First Appeal was dismissed on 1-8-1973-Second appeal filed after expiry of time limit and petition to condone delay and consequently appeal dismissed as time barred on 3.3.1976-Execution petition filed on 24.3.1988-Execution petition time barred-Decree became enforceable on 1.8.1973-Dismissal of an appeal as time barred is not a decree-Execution petition rightly dismissed as time barred.
       Period of execution of a decree starts running from the date when it "becomes enforceable". When is a decree becoming enforceable? Normally a decree or order becomes enforceable from its date. But cases are not unknown when the decree becomes enforceable on some future date or on the happening of certain specified events. The expression "enforceable" has been used to cover such decrees or orders also which become enforceable subsequently. Filing of an appeal would not affect the enforceability of the decree, unless the appellate court stays its operation. But if the appeal results in a decree that would supersede the decree passed by the lower court and it is the appellate court decree which becomes enforceable. When the appellate order does not amount to a decree there would be no supersession and hence the lower court decree continues to be enforceable. (Paras 7, 8 & 9)
       In order that decision of a court should become a decree there must be an adjudication in a suit and such adjudication must have determined the rights of the parties with regard to all or any of the matters in controversy in the suit and such determination must be of a conclusive nature. If those parameters are to be applied then rejection of application for condonation of delay will not amount to a decree. Consequently, dismissal of an appeal as time barred is also not a decree. In such a situation the mere fact that the second appeal was dismissed as a corollary to the dismissal of application for condonation of delay has not effect on the decree passed by the first appellate court. (Paras 10 & 11)
       So the end result is this : The decree became enforceable on 1.8.1973 when the appellate court passed the decree which superseded the decree of the trial Court. As no decree was passed by the High Court in the second appeal the decree of the first appellate court remained unaffected and the enforceability once commenced remained undisturbed for a period of 12 years therefrom. The execution process initiated by the appellant long after the expiry of 12 years from 1.8.1973 is thus irretrievably barred. (Para 15)
       (ii) Code of Civil Procedure-Section 2(2)-Decree-Meaning of-Rejection of application for condonation of delay-Will not amount to a decree-Dismissal of an appeal as time barred-Is not a decree. (Para 10)

JUDGMENT

Thomas, J.-Leave granted.

2. A decree-holder after securing a decree went into slumber and remained as such for a pretty long period like a Rip Van Winkle. When he awoke he realised that his decree became rust corroded and lost its enforceability due to efflux of a number of years. In his search to find out at least a straw to cling on he came across an order of the High Court by which a Second Appeal preferred by his opposite party was dismissed as time barred. The Execution Court resuscitated the decree with the help of the said order, but the District Court in a revision held otherwise. This appeal by Special Leave is against the order of the District Court as the High Court shut its door for the decree-holder when he knocked at it. The High Court pointed out to him that the revisional powers of the High Court under Section 115 of the Code of Civil Procedure (for short the Code ) had already been exercised by the District Court on which such powers were delegated in the State of Madhya Pradesh.

3. The decree which the appellant succeeded in obtaining was one for possession of the suit property. The trial Court passed the decree on 14.12.1970. The respondent filed the First Appeal against it but it was dismissed on 1.8.1973. The execution petition was filed only on 24.3.1988 which obviously was beyond time fixed by the Limitation act. Then appellant thought of availing himself of the benefit of an order passed by the High Court on 31.3.1976 when the High Court rejected a Second Appeal filed by the respondent against the decree and judgment of the first appellate court. That order of rejection was passed only on the ground that the delay in filing the Second Appeal was not properly explained. As the appellant now made an endeavour to utilize the said order we may extract the material portion of it hereunder :

"In the light of the foregoing discussion, it is apparent that the cause does not appear to be a genuine and even if it is true, it has arisen due to the negligence or inaction of the appellant and his counsel. A cause which has arisen due to the negligence or inaction of the appellant and/or his counsel, cannot be said to be a sufficient cause. In the result, I find that no sufficient cause for condonation of delay in the filing of this appeal has been made out. The application has, therefore, to be rejected and is accordingly rejected. Consequent to the rejection of this application, the appeal also stands dismissed as barred by time. I make no order as to costs."

4. Though the ending statement in the said order is that the appeal also stands dismissed, a reading of the order as a whole makes it clear that the second appeal was not entertained or merits at all. The High Court considered the only question whether the second appeal filed by the judgment debtor could be treated as valid appeal to be heard on merits. As the High Court found that the appeal was presented after the expiry of the period of limitation and since there was no valid explanation for the delay, the application for condonation of delay was liable to be dismissed and consequently the second appeal was rejected.

5. Learned counsel for the appellant contended before us that dismissal of the second appeal would make the position different as the time would run from the date of such dismissal. He adopted a second contention that interpretation of law of limitation should be such as to prevent the scuttling of the remedy.

6. Article 136 of the Schedule to the Limitation Act 1963 provides 12 years for execution of any decree or order of any civil court (other than a decree granting a mandatory injunction). The third column in the Article which indicates the time from which period begins to run, states that "when the decree or order becomes enforceable......"

7. The forerunner of the said Article in the Limitation Act, 1908, (for short the old Limitation Act ) was Article 182. It worded like this : "For the execution of a decree or order of any civil cou

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2000 Supreme(SC) 2011

IMPORTANT POINTAn order rejecting application for condonation of delay in filing appeal and consequent dismissal of appeal would not amount to decree within meaning of Section 2(2) of C.P.C.

Cases Referred (2)

IMPORTANT POINT
An order rejecting application for condonation of delay in filing appeal and consequent dismissal of appeal would not amount to decree within meaning of Section 2(2) of C.P.C.