The period of limitation under Article 136 of the Limitation Act, 1963, should be calculated from the date when the decree becomes enforceable, which in the present case was the date of the amendment of the decree.

Headnote:
LIMITATION ACT, 1963 - ARTICLE 136 - AMENDMENT OF DECREE - DATE OF ENFORCEABILITY - CALCULATION OF LIMITATION PERIOD - TRANSFER OF PROPERTY ACT, 1882 - SECTION 52 - LIS PENDENS - APPLICABILITY TO EXECUTION PROCEEDINGS.
Fact of the Case:

A decree-holder filed a darkhast for execution of a decree passed in 1952. The darkhast was dismissed on the ground that it was barred by limitation under Article 136 of the Limitation Act, 1963. The decree-holder appealed to the District Judge, who set aside the order of dismissal and held that the darkhast was within time. The judgment debtor filed a Letters Patent Appeal against the decision of the District Judge.
Finding of the Court:

The High Court allowed the Letters Patent Appeal and restored the order of the District Judge. The Court held that the period of limitation under Article 136 of the Limitation Act, 1963, should be calculated from the date when the decree became enforceable, which in the present case was the date of the amendment of the decree, and not from the date of the original decree. The Court also held that the provisions of section 52 of the Transfer of Property Act, 1882, which prohibit the transfer of property that is the subject matter of pending litigation, did not apply to execution proceedings.
Issues: 1. Whether the period of limitation under Article 136 of the Limitation Act, 1963, should be calculated from the date of the original decree or from the date of the amendment of the decree. 2. Whether the provisions of section 52 of the Transfer of Property Act, 1882, apply to execution proceedings.
Ratio Decidendi: 1. The Court held that the period of limitation under Article 136 of the Limitation Act, 1963, should be calculated from the date when the decree became enforceable, which in the present case was the date of the amendment of the decree. The Court reasoned that the decree in the present case became enforceable, so far as the complete possession of the property in dispute was concerned, only after the amendment of the decree. 2. The Court held that the provisions of section 52 of the Transfer of Property Act, 1882, which prohibit the transfer of property that is the subject matter of pending litigation, did not apply to execution proceedings. The Court reasoned that the judgment debtor in the present case had transferred the property to a third party after the decree had been passed and before the darkhast was filed. The Court held that the transfer was not void under section 52 of the Transfer of Property Act, 1882, because the execution proceedings were not pending at the time of the transfer.
Final Decision: The High Court allowed the Letters Patent Appeal and restored the order of the District Judge. The Court held that the darkhast was within time and that the provisions of section 52 of the Transfer of Property Act, 1882, did not apply to execution proceedings.

JUDGMENT

VAIDY A J.- The above Letters Patent Appeal is on the basis of the leave granted by S. K. Desai J., against his judgment dated 22nd November 1971, in Second Appeal No. 1403 of 1969 and involves a point of limitation under Article 136 of the Limitation Act, 1963.

2. Second Appeal No. 1403 of 1969 was filed against the decision of the District Judge, Thana, dated July 4, 1969, setting aside an order passed by Civil Judge, Junior Division, Palghar, in Regular Darkhast No. 34 of 1967, dismissing the said dark hast on the ground that though the dark hast was in time under Article 136 of the Limitation Act, 1963, the darkhast was liable to be dismissed because the subject matter of the decree was not in possession of the judgment debtor (respondent No.7), being lis pendens, was hit by section 52 of the Transfer of Property Act and the decree was executable as the darkhast was in time.

3. In that second appeal the decision of the learned District Judge was set aside on the ground that the period of limitation provided under Article 136 of the Limitation Act, 1963, will have to be cakulated from the date of the decree which, in the case, would be from April 14, 1952, which was the date of the appeal decree in Civil Appeal No. 342 of 1949 and not from August 31, 1963, which was the date of the order made in Misc. Application No. 81/1962 for the amendment of the decree.

4. The material facts may be briefly stated as follows: The decree in execution was passed on April 20, 1952, in Civil Suit No. 219 of 1947 in which the plaintiff-decree-holder had sought possession of certain property on the basis that he had purchased the same at court sale which was duly confirmed by the Court. He obtained possession of a portion of the suit property but in respect of another portion there was obstruction and hence a suit was filed to remove that obstruction. On April 20, 1949, a decree was passed by the Civil Judge, Junior Division, in favour of the plaintiff. On April 14, 1952, Civil Appeal No. 342 of 1949, filed against the said decree, was dismissed.

5. In the meanwhile, the decree-holder had filed a darkhast, being darkhast No. 122 of 1951, on April 20, 1951 and it was decided on January 17, 1957. Without the decree-holder getting satisfaction of the decree, he transferred it in favour of respondent No.7 on March 7, 1956. Thereafter on November 14, 1962, the decree-holder filed Miscellaneous Application No. 81 of 1962 for amendment of the decree, which was decided on August 31, 1963.

6. The result of the amendment has been, with respect, correctly summarised by S. K. Desai J. Paragraph 4 of the Judgment as follows :-

"The decree, after it was amended, provided for a declaration that the plaintiff was the owner of the land in suit. The defendants were ordered to remove their hut from the property in suit and deliver vacant possession of the land to the plaintiff. It was further ordered that if the defendants failed to remove the hut and deliver vacant possession of the land to the plaintiff, the plaintiff do remove the same through Court at the defendant's costs. This was in substitution of the original provision in the decree that the defendants shall remove the hut and the plaintiff was entitled to get the hut removed at the cost of the defendants. The remaining part of the decree providing for costs remained unchanged. It is clear that the original decree was incomplete and in order to do full justice, the amendment was allowed by the learned District Judge, Thana. Therefore, on 16th June 1967, the present darkhast was filed .... "

7. Relying on the amended decree, therefore, the darkhast was filed on June 16, 1967, and the learned Judge, relying on certain decisions under the repealed section 48 of the Code of Civil Procedure, took the view that the period of 12 years should be calculated with effect from April 14, 1952 and not with effect from the date of the amendment, viz. August 31, 1963.

8. The view taken by the learned Judge is

Click Here to Read the rest of this document

Judicial Analysis