IMPORTANT POINT
In this case no extraneous event is to happen on the fulfilment of which the decree for specific performance can be executed, therefore, it is not a conditional decree and is capable of execution immediately after the date specified in the decree i.e. 23.9.1966 for the D.H. to deposit the consideration money. Execution on 19.4.1980 is clearly barred by 12 years time under Art. 136 of Limitation Act, 1963.

Headnote:Limitation Act, 1963-Art. 136-Limitation of 12 years for execution of a decree when the decree or order becomes enforceable-Decree of specific performance containing directions-JD to demarcate and measure property-DH to deposit balance consideration-For both directions same date viz. 23.9.66 was fixed-JD did not demarcate or measure on 23.9.66 but DH deposited money in Court on that date-Demarcation/measurement done in 1973-DN applied for execution on 19.4.1980-Is the execution petition filed by the DH/Appellant barred by limitation under Art. 136 Limitation Act?-High Court answering the question in affirmative-Whether correct? (Yes, decree is not conditional, it was executable from 23.9.66, execution in 1980 is more than 12 year after 23.9.66 hence time barred-1999(8) SCC 315 (rel. on) AIR 1974 All. 275 (FB) disting.-(C.P.C. 1908-Order 21 Rules 11 and 34(1), Order 20 Rule 7)-Appeal dismissed.
       Held : Such a decree cannot be said to be a conditional one, in the sense that the plaintiff could not enforce his rights under the decree till defendant carried out the direction under the decree for measurement and demarcation of the land. The position is well settled that ordinarily a decree becomes enforceable immediately after the judgment is pronounced. (Paras 11 & 12)
       (After following 1999(8) SCC 315 and distinguishing AIR 1974 All 275 (FB)
       Held : The fixation of periods of limitation are bound to be to some extent arbitrary and may at times result in hardship. But in construing such provisions equitable considerations are out of place and the strict grammatical, meaning of the words is the only safe guide. (See AIR 1932 PC 165). The decree was enforceable immediately after the date specified in the decree i.e. 23.9.1966 for the decree-holder to deposit the consideration money. If the direction given in the decree to the judgment-debtor to measure and demarcate the land by that date (23.9.1966) was not complied with the decree-holder was free to execute the decree. The steps to be taken by the decree-holder in this regard are provided in Order 21 Rule 34(1) CPC. In the case in hand a specified date was mentioned in the decree for the judgment-debtor to carry out the aforementioned direction i.e. 23.9.1966 and if he failed to carry out the direction it was open to the decree-holder to seek help of the executing court for measurement and demarcation of the land, and thereafter, to get the sale deed executed by the judgment-debtor if possible or by the Court if necessary. The decree-holder for reasons best known to him did not choose to execute the decree till April 1980. In the facts and circumstances of the case and on a fair reading of the decree in the context of the provisions of Article 136 of the Limitation Act the conclusion is in escapable that the execution petition was filed after expiry of the period of limitation prescribed under the Act. The Appellate Court was right in dismissing the execution petition as time barred and the High Court committed no illegality in confirming the said order. In the result this appeal being devoid of merit is dismissed. There will however be no order as to costs. (Paras 16, 17 & 18)

JUDGMENT

D.P. Mohapatra, J.-Is the execution petition filed by the appellant barred by limitation is the question that arises for determination in this appeal. The High Court having answered the question in the affirmative the decree-holder has filed this appeal assailing the order of the High Court.

2. The factual backdrop of the case relevant for appreciating the points raised may be shortly stated thus:

The predecessor in interest of the decree-holder filed the suit against the judgment-debtor, O.S.No.35/1965, for specific performance of the contract of sale dated 7.2.1964. The suit property was described as 13 grounds and 491 sq.ft. on measurement and demarcation. The suit was decreed on 23rd July, 1966. The said decree reads as follows:-

"(1) The defendant do measure and demarcate the boundaries for 13 grounds and 491 sq. ft. in the property described hereunder on or before 23.9.1966

(2) That the plaintiff do deposit into court on or before 23.9.1966 the balance of the sale price for 13 grounds and 491 sq. ft. on measurement and demarcation.

(3) That on such measurement and demarcation and fixation of the price and on deposit the defendant do execute the sale deed in respect of the suit house-sites in favour of the plaintiff at her costs as agreed and in default the court do execute the sale deed on application of the plaintiff and the cost of the execution of such sale deed be recovered from the defendant.

(4) That the defendant to pay to the plaintiff the sum of Rs. 1,423/- being costs of this suit and to bear his own costs of Rs. 507.50.

3. The decree-holder deposited the balance of the sale price by 23.9.1966 but the measurement and demarcation was not done by the judgment-debtor on or before 23.9.1966, the time fixed for the purpose. After a lapse of more than six years the measurement and demarcation of the land was done by the judgment-debtor in the year 1973. Thereafter the decree-holder filed the execution petition on 19.4.1980 being E.P. No. 346/1981 for executing the decree for specific performance of the contract praying therein to direct the judgment-debtor to execute the sale deed as per the draft sale deed produced in the Court by the decree-holder and in default to cause the execution of the sale deed by the court.

4. The judgment-debtor in the objection filed against the execution petition raised the question of limitation. It was the case of the judgment-debtor that the decree became enforceable on and from 23.9.1966 by which date the decree-holder had deposited the balance consideration. If the judgment-debtor had failed to measure and demarcate the land the decree-holder should have moved the executing court for the purpose.

5. It was the contention of the decree-holder that since the condition regarding measurement and demarcation of the land was complied by the judgment-debtor only in 1973 the period of 12 years is to be computed from that date and on such computation the execution petition filed on 19.4.1980 was within time.

6. The Executing Court accepted the case of the decree-holder and held that the decree under execution was a conditional decree which became enforceable when the judgment-debtor measured and demarcated the land in 1973 and therefore the execution petition was not barred by limitation vide the order dated 16.2.1982.

7. On appeal by the judgment-debtor the Additional District Judge, Tiruchirapalli, by the order passed on 6.8.1985 allowed the appeal and set aside the order passed by the Executing Court holding, inter alia, that it was not possible to conclude that just because the judgment-debtor had not measured and demarcated the property the decree-holder had not acquired any right to execute the decree. The appellate court was of the view that if the contention of the decree-holder is accepted it would mean that in case the judgment-debtor intentionally did not fulfil the condition imposed on him in the decree

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2001 Supreme(SC) 1503

Cases Referred (3)