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2005(4) Supreme 136
Supreme Court of India
(From Delhi High Court)
R.C. Lahoti, CJI, Y.K. Sabharwal & G.P. Mathur, JJ.
Dr. Chiranji Lal (D) by Lrs. —Appellant
versus
Hari Das (D) by Lrs. —Respondent
Civil Appeal No. 3745 of 2002
Decided on 13-5-2005
Counsel for the Parties :
For the Appellant : K.N. Bhat, Sr. Advocate, R.N. Verma, M.K. Verma, R.S. Rana, Advocates.
For the Respondent : Jaspal Singh, Sr. Advocate, Ms. Jayashree Wad, Ashish Wad, Neeraj Kumar and Ms. Surabhi Madan Advocates.
Held : The engrossment of the final decree in a suit for partition would relate back to the date of the decree. The beginning of the period of limitation for executing such a decree cannot be made to depend upon date of the engrossment of such a decree on the stamp paper. The date of furnishing of stamp paper is an uncertain act, within the domain, purview and control of a party. No date or period is fixed for furnishing stamp papers. No rule has been shown to us requiring the court to call upon or give any time for furnishing of stamp paper. A party by his own act of not furnishing stamp paper cannot stop the running of period of limitation. None can take advantage of his own wrong. The proposition that period of limitation would remain suspended till stamp paper is furnished and decree engrossed thereupon and only thereafter the period of twelve years will begin to run would lead to absurdity. In Yeshwant Deorao Deshmukh v. Walchand Ramchand Kothari [1950 SCR 852] it was said that the payment of court fee on the amount found due was entirely in the power of the decree holder and there was nothing to prevent him from paying it then and there; it was a decree capable of execution from the very date it was passed. Rules of limitation are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. As above noted, there is no statutory provision prescribing a time limit for furnishing of the stamp paper for engrossing the decree or time limit for engrossment of the decree on stamp paper and there is no statutory obligation on the Court passing the decree to direct the parties to furnish the stamp paper for engrossing the decree. In the present case the Court has not passed an order directing the parties to furnish the stamp papers for the purpose of engrossing the decree. Merely because there is no direction by the Court to furnish the stamp papers for engrossing of the decree or there is no time limit fixed by law, does not mean that the party can furnish stamp papers at its sweet will and claim that the period of limitation provided under Article 136 of the Act would start only thereafter as and when the decree is engrossed thereupon. The starting of period of limitation for execution of a partition decree cannot be made contingent upon the engrossment of the decree on the stamp paper. The engrossment of the decree on stamp paper would relate back to the date of the decree, namely, 7th August, 1981, in the present case. In this view the execution application filed on 21st March, 1994 was time barred having been filed beyond the period of twelve years prescribed under Article 136 of the Act. The High Court committed illegality in coming to the conclusion that it was not barred by limitation. (Paras 26 and 27)
The key point established in this legal document is that the starting point of limitation for the execution of a partition decree cannot be made contingent upon the engrossment of the decree on stamp paper. Instead, the limitation period begins from the date when the final decree is passed. The engrossment on stamp paper is considered a ministerial act that does not suspend or delay the commencement of limitation, which is governed by the statutory period prescribed under the relevant limitation law (!) (!) (!) .
Furthermore, the document clarifies that the act of furnishing stamp paper and engrossing the decree on it is within the control and discretion of the parties involved and does not influence the enforceability of the decree. The decree becomes enforceable from the date of the final decree itself, and the limitation period for execution begins from that date, regardless of when the decree is engrossed on the stamp paper (!) (!) (!) .
It is also emphasized that the law does not prescribe a statutory time frame for furnishing stamp papers or engrossing the decree, and the absence of such a requirement means that the limitation period cannot be deferred or suspended until the decree is engrossed. Any attempt to link limitation to the engrossment process would lead to unreasonable or absurd results (!) (!) .
In summary, the legal principle is that the limitation period for executing a partition decree starts from the date of the final decree and is not dependent on the engrossment of the decree on stamp paper. The engrossment is a procedural act that does not affect the enforceability or the commencement of limitation.
Judgment
Y.K. Sabharwal, J.—Article 136 of the Limitation Act, 1963 (for short ‘the Act’) prescribes a period of twelve years for the execution of any decree (other than a decree granting a mandatory injunction) or order of any civil court. It provides that the period would commence when the decree or order becomes enforceable.
2. The question that arises for determination in this matter is when would the period of limitation for execution of a decree passed in a suit for partition commence. In other words, question is when such a decree becomes enforceable - from the date when the decree is made or when the decree is engrossed on the stamp paper. Which, out of these two, would be the starting point of limitation?
3. The facts are brief and undisputed. In a suit for partition filed against the predecessor-in-interest of the appellants, final decree was passed on 7th August, 1981 in favour of the predecessor-in-interest of the respondents. The stamp papers required for engrossing the decree were furnished by respondents on 25th May, 1982 and the decree was engrossed thereafter. There was no order of the Court directing the parties to furnish stamp papers for the purposes of engrossing the decree. The execution application was filed on 21st March, 1994 in the High Court. The appellant raised objection that the execution application was barred by limitation in view of Article 136 of the Act. The execution court rejected the objection. The order was also upheld by the Division Bench in the appeal. The Division Bench by the impugned judgment held that unless and until the decree is engrossed on the stamp paper it is merely a judgment of the Court and there is no decree available for execution. Therefore, it held that the starting point of limitation in case of execution of a decree in partition suit is the date when the decree is engrossed on the requisite stamp papers as that would be the date when decree becomes enforceable.
4. A two-Judge Bench of this Court found that there was obvious conflict among the three two-Judge Bench decisions i.e. (i) Shankar Balwant Lokhande v. Chandrakant Shankar Lokhande & Anr. [(1995) 3 SCC 413] (ii) W.B. Essential Commodities Supply Corporation v. Swadesh Agro Farming & Storage Pvt. Ltd. & Anr. [(1999) 8 SCC 315] and (iii) Hameed Joharan & Ors. v. Abdul Salam & Ors. [(2001) 7 SCC 573] and was of the view that it would be appropriate that the case be placed before a three-Judge Bench to resolve the conflict in these decisions.
5. The contention urged on behalf of the appellants is that the date of engrossment of decree on stamp paper cannot be the starting point of limitation for the purposes of Article 136 of the Act.
6. Learned counsel for the appellants contends that there is no conflict in the decisions. The submission is that the case of W.B. Essential Commodities Supply Corporation was that of a money decree and, therefore, any discussion therein on the issue of enforcement of decree on stamp paper and starting point of limitation on that basis would be merely obiter dicta. Likewise, the point in issue, in fact, did arise in Lokhande’s case and only passing observations have been made therein which are purely obiter. The said observations were not necessary to decide the issue which was germane to the matter. Placing strong reliance on the decision in Hameed Joharan’s case (supra), it is contended by learned counsel that the legal propositions correctly laid down therein squarely cover the issue arising in the present matter.
7. On the other hand, the learned counsel appearing for the respondents supporting the impugned judgment strongly relies on the decisions in Lokhande and W.B. Essential Commodities Supply Corporation cases in support of the contention that a final decree of partition becomes enforceable only when it is engrossed on the stamp paper:
8. In Lokhande’s case, a preliminary decree was passed on 2nd August, 1955 in a suit for partition declaring the share of each of the parties to the
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