1994 ALLMR ONLINE 199
BOMBAY HIGH COURT

P.S. PATANKAR, J.

Vijay Dattatraya Navale Vs. Shivanappa Hanumantappa Nagure and another

Civil Revision Application No. 120 of 1988

18th February, 1994


Respondent Counsel: P. M. Mengano, (for No. 1), .

Limitation Act (1963),S. 12(2) Limitation Act (1963),S. 12(1) Limitation Act (1963),Art. 136

Cases Cited:
AIR 1961 MP 223 : 1961 MPLJ 685, Followed [Para 4]
AIR 1952 Kutch 11, Followed [Para 4]


JUDGMENT

ORDER :-A short but interesting point arises in this matter. The father of Respondent No. 1 Shivanappa filed Regular Civil Suit No. 70 of 1970. The learned Civil Judge, J. D. Akkalot by his judgment and order dated 3-11-1971 decreed the said suit directing that the Respondent No. 1 was entitled to recover Rs. 4660/- from Respondent No. 2 along with interest at 6% per annum on principal amount of Rs. 4,000/- from the date of suit till realisation. He also ordered the costs in favour of Respondent No. 1. Respondent No. 1 filed execution proceedings i.e. Regular Derkhast No. 39/83. It came to be filed on 17-11-1983. The Respondent No. 1 claimed total amount of Rs. 8388-51 which included the principal amount, interest at 6% per annum on Rs. 4,000/- and the costs. In the said execution proceedings, order came to be passed on 22-1-1985 directing attachment of the 1/3rd share of the property C.S. No. 1314 of the Petitioner under Order 21, Rule 54 of Civil Procedure Code. Thereafter order came to be passed on 25-9-1986 directing warrant and sale proclamation of the said house property after notice to Respondent No. 2. Point of limitation came to be raised on behalf of the petitioner contending that the execution petition was filed beyond limitation. The Respondent No. 1 contended that Decree was drawn on 15-11-1971 and certified copy was applied on the same day. The certified copy was ready on 25-11-1971. The said period requires to be excluded and hence execution petition filed on 17-11-1983 was within 12 years and not barred by limitation. The learned Civil Judge by his order dated 8-2-1988 accepted the said contention and held that execution petition was within limitation.

2. The learned Advocate appearing for the Petitioner contended that provisions of Section 12(2) of Limitation Act, 1963 are not applicable to the execution proceedings and therefore the time required for obtaining the certified copy of decree cannot be excluded. He pointed out that as the judgment was delivered in Regular Civil Suit No. 70 of 1970 on 3-11-1971, the same is to be taken as the date of the decree in view of the Order 20, Rule 7 of Civil Procedure Code and it is necessary to calculate the time from the said date. He alternatively submitted that even if it is assumed that decree was prepared and signed by the learned Civil Judge, J. D., Akkalkot on 15-11-1971, the time starts running from 16-11-1971 and ends on 15-11-1983. Even then execution proceedings filed on 17-11-1983 are beyond 12 years and therefore barred by limitation. He submitted that the learned Judge has committed an error in excluding the period which was required for obtaining the certified copy of the decree i.e. up to 25-11-1971 and holding that the execution proceedings filed on 17-11-1983 were not barred by limitation. The learned Advocate for the Respondent first submitted that Respondent No. 1 is entitled to get the period which was required for obtaining the certified copy as the same was necessary for filing Darkhast. He next submitted that Petitioner herein is the son of the judgment debtor-Respondent No. 2 and cannot therefore file this revision.

3. The first question is whether this revision at the instance of the Petitioner is maintainable or not as he is not Judgment

debtor or whether Respondent No. 2 should have filed the same. Section 3 of Limitation Act 1963 mandates that any suit instituted, appeal preferred or application made after the prescribed period shall be dismissed even though limitation has not been set up as a defence. It is for the Court to consider whether the suit, appeal or application is within limitation or not, and in case it is not then the same must be dismissed. Therefore, merely because this revision has been filed at the instance of this petitioner, who is not judgment-debtor, cannot mean that the same is not maintainable and should be dismissed on this ground. Further the Petitioner was impleaded in Darkhast proceedings after notices were issued under Order 21 and 22 and Petitioner raised the objection as to limitation, by filing application dated 8-2-1988. Therefore I hold this revision is maintainable.

4. The next question is whether the same is within limitation or not. This question depends upon whether the Respondent No. 1 decree-holder is entitled to exclude the time requisite for obtaining the certified copy of the decree. If it is held that he is entitled to claim exclusion of the said period, then this execution petition can be said to be in limitation. But if it is not, then, the same would be beyond limitation and the same is required to be dismissed.

Section 12(2) is as follows :-

12(2) In computing the period of limitation for an appeal or an application for leave to appeal or for revision or for review of a judgment, the day on which the judgment complained of was pronounced and the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be revised or reviewed shall be excluded. The plain reading of the said Section shows that only for computing the period of limitation for (1) an appeal, (2) an application for leave to appeal (3) for revision or (4) for review of the judgment, the day on which the judgment complained of was pronounced and the time requisite for obtaining a copy of the decree shall be excluded. This does not include the execution proceedings. The question whether Section 12(2) is attracted to the execution proceedings or not came to be considered by other High Courts and it seems that unanimous opinion is that Section 12(2) is not attracted to the execution proceedings. The learned Advocate for the Petitioner relied upon some judgments in his support. In AIR 1953 Kutch 11, Lalji Kanji v. Bhavan Bhanji it was held that Section 12(2) does not apply to the application for execution proceedings and hence the time requisite for obtaining certified copy of the decree cannot be excluded under Section 12(2). The case was considered under Section 12(2) of Limitation Act, 1908. However, the present provision under Section 12(2) of Limitation Act 1963 is same. The said question was also considered in AIR 1961 Madh Pra 223, Lalchand Ramchand Jain v. Kanhaiyalal Rambharose. In the said case it was held that application for execution does not fall within any of the categories of legal proceedings mentioned in Section 12(2) of Limitation Act. It would not in terms apply to an application for execution and therefore the question whether the decree-holder is entitled as of right to ask for the exclusion of the period of interval between the date of pronouncing the judgment and the date of drawing up the decree cannot arise for consideration. It was further held that the provisions of Limitation Act ought to be interpreted in their natural strict grammatical sense. Their scope cannot be enhanced out of any equitable considerations nor can their scope be restricted, so as to have an unduly penal effect. In my opinion the plain language of Section 12(2) suggests that the said provision is not attracted to the execution. proceedings. It is not mentioned as one of the categories covered by the said Section 12(2). There is no scope for equity and language cannot be stretched to include execution proceedings within the ambit of the said provision. If the legislature wanted to include the same then it would have provided so. In fact Section 12(1) reads as follows :-

12(1). In computing the period of limitation for any suit, appeal or application, the day from which such period is to be reckoned, shall be excluded.

The word 'application' is defined under Section 2(b) as 'application' includes a

petition therefore execution petition can fall as far as S. 12(1) is concerned and benefit of the provisions can be given. However, this is not so when we have to consider S. 12(2). Further in view of Order 20, Rule 7 the date of decree is the date of judgment and not signing of the decree by the learned Judge.

5. It is clear that the legislature expects that decree-holder should take prompt steps and it is not necessary to exclude the time requisite for certified copy of decree as long period is provided for execution. Further Order 21, Rule 11(1) even provides for oral execution application in case of a decree for the payment of money. So also successive applications for execution are not barred or for execution of part of the decree. Article 136 of Schedule to the Limitation Act, 1963, provides for 12 years time for execution of such decree. Time beings to run when the decree becomes enforceable or where the decree directs any payment of money or the delivery of any property to be made of a certain date or at recurring periods when default is made. In the present case decree for principal amount and interest became enforceable on the date of signing the judgment 3-11-1971. At the most it can be said that decree as regards costs became enforceable when it was drawn and signed 15-11-1991.

6. Therefore the time requisite for obtaining copy of the decree cannot be excluded in this proceeding. Hence the learned Advocate for the Petitioner is right in contending that Respondent No. 1 cannot get exclusion of period from 4-11-1971 to 25-11-1971 and the learned Judge has committed an error in excluding the same.

7. In the present case the decree came to be passed regarding the amount of Rs. 4660/- and interest was passed on 3-11-1971 and on the very date it became enforceable. At the most it can be said that in view of Art. 136 the decree relating to costs became enforceable on 15-l l-1971 i.e. the date on which it was made ready and came to be signed by the learned Judge. Therefore, if the period is calculated from 4-11-1971, then the execution petition filed on 17-11-1983 was beyond limitation. Even assuming that limitation started two run from 16-11-1971 (as 15-11-1971 is excluded as the date on which the decree was signed in view of Section 12(1) of Limitation Act), the execution proceedings are filed beyond 12 years and therefore they are barred by law of limitation. The learned Advocate for the Respondent No. 1 was not able to point out any other provision or feature of which he can get benefit. He was not able to show that 15-11-1983 and 16-11-1983 were holidays for the Court. Hence the execution petition was filed beyond limitation and requires to be dismissed.

8. Rule is made absolute. In the facts and circumstances of the case, there shall be no order as to costs.

Rule Made Absolute