RADHABAI Vs. PANDURANG KRISHNA TARASE

JUDGEMENT

(1.) Appellant is the decree-holder who obtained a decree in OS. No.348 of 1951 on the file of the Civil Judge, JD., Bijapur. The decree was made on 31-12-1952. It directs that the plaintiff shall pay to the defendants a sum of Rs.1,200 and obtain possession of the suit schedule property from them. There is also a direction that the defendants are liable to pay costs of the suits to the plaintiff. We are not concerned in this case with the portion of the decree that relates to costs. We are only concerned with the relief relating to possession. The decree-holder filed Darkhast No.131 of 1961 on 13-4-1961 claiming that he has deposited a sum of Rs.1,200 and that delivery of possession may be ordered. This application was resisted by the judgment-debtors-respondents, on the ground that the petition is barred by limitation. The lower Courts upheld the contention of the judgment-debtors and dismissed the Darkhast application. They take the view that the execution petition should have been filed within 3 years from the date of the decree i.e., from 31-12-1952, applying Art.182 of the Limitation Act. Against these decisions, the decree-holder-appellant, has preferred this second appeal.

(2.) It is contended by Sri H.B.Datar, the learned Counsel appearing for the appellant, that, as the decree has not prescribed any time limit within which the decree-holder is required to deposit the sum of Rs.1,200 before obtaining possession, it is open to him to deposit the amount at any time within 12 years from the date of the decree; in this case it has been done, and therefore, the decisions of the Courts below are not in accordance with law. In support of his contention, he relies on the decision in Jugal Singh v. Lochan Singh, AIR 1945 All. 10. This decision has not been followed by the lower Courts. On the other hand, they have followed the decision in Nana Mansaram v. Shridhar, 32 Bom.L.R. 427 = AIR 1930 Bom. 503, in support of their conclusion. Art.182 of the Indian Limitation Act, 1908, is as follows: "182 . For the execution of a decree or order of any Civil Court not provided.........Three years;.........the date of the decree or order, or.........." It is not submitted in this case that there was any impediment in the way of the decrt e-holder depositing the amount and seeking relief for delivery of possession. Therefore, it was possible for the decree-holder to apply for execution immediately after the decree was passed. It appears to me that the terms of Art. 182 of the Limitation Act extracted above, leave no doubt that the execution application ought to have been filed within three years from the date of the decree. Even in the event of Art.131 replying to the facts of this case, it will not help the decree-holder, at under Art. 181 the applicant should make the application within three years when the right to apply accrues. In this case, there is no doubt that the right to apply accrues to the decree-holder on the date the decree was passed Hence the Darkhast applicaion is barred. As Art.182 applies to the case there is no occasion to investigate if there is any other provision of the Limitation Act that is applicable. In the decision reported in Jugal Singh v. Lochan Singh(1), as a fact, the amount was deposited within the time. Therefore, the discussion relating to the time within which the application must be made by a decree-holder who is required to deposit a certain sum of money before he obtains possession does not arise directly for consideration. Sri H.B.Datar does not rely on the observations made by the Court as a definite statement of law, but only as indicative of a point of view that can be taken in a case like this. In the above cited decision in Jugal Singh's case(1), the learned Judges after stating that two view, arc possible in a case of this kind, observed that they are not satisfied that when the Court has not fixed any period within which the amount is to be deposited, the deposit must be made within three years from the dale of the decree. While further discussing as to what exactly is the period of limitation, they state that "The mere fact that the Court has not fixed any time for payment will not, to my mind, make Art.182 applicable. There is no reason why it should be deemed that the Court intended that the deposit must be made forthwith immediately after the Court pronounced the judrment". I am unable to subscribe to this view. When the decree states that on payment of Rs.1,200, the decree-holder can obtain possession, it means that the Court intended to give the decree-holder a right to apply for execution forthwith. Any thing that is not contained in the decree cannot be read into it and further it appears to me that fixing of period of 12 years as the period of limitation within which the application could be made by the decree-holder placed in the circumstances as in this case, does not stand to reason. The reason given by the learned Judge in the above decision for fixing the period of twelve years is contrary to what the Bombay and Nagpur High Courts have done. In Doda v. Ganpatrao, AIR 1931 Nag. 54, in a case similar to the one in the second appeal, it is observed that "The decree is one that is capable of being executed immediately, as the condition of payment is one entirely dependent upon the will of the decree-holder or his ability to pay. In such a case the decree cannot be said to be a conditional one or one that is incapable of being executed until a condition is fulfilled. The decree-holder cannot obtain extension of limitation by deferring payment. Limitation runs from the date of the decree, whether any time for payment is fixed or not. The same view has been taken in the decision in Nana Mansaram v. Shridhar(2) . No doubt that was a case where it was conceded that the application for execution had to be made within three years as provided under Art.182 of the Limitation Act. But a concession appears to have been made because the proposition of law is not open to doubt In case where it is open to a party to demand the doing of the particular right, the cause of action will arise on the date the stipulation is made. It would not be correct to say that cause of action would arise when the party seeks the compliance with the application. As an instance, I may refer to Art.59 of the Limitation Act which provides three years for money lent under an agreement that it shall be payable on demand. It is three years when the loan is made. It cannot be contended that the cause of action would arise when the demand is made. The reason is that it is open to the creditor to make a demand at any time after the loan is advanced. In the same way, under the present decree, it was open to the decree-holder to deposit the amount and ask for delivery of possession immediately after the decree was passed. The provisions of Art.182(1) apply to the facts of this case. The view taken by the lower Courts is the correct view and is not open to question. Therefore, the appeal fails and is dismissed.

(3.) In the circumstances of the case, each party will bear his or her own costs.