CHIRANJILAL Vs. HARI DAS SOOD SINCE DECD

JUDGEMENT

(1.) This appeal involves a short question of law and therefore, with the consent of the learned Counsel for the parties we have taken it up for final hearing at this stage itself. The question for consideration is: "What is the starting point for purposes of calculating the period of limitation for execution of a final decree in a suit for partition of properties by metes and bounds?".

(2.) Briefly the facts which are necessary to appreciate the controversy in the present case are that the final decree for partition by metes and bounds was passed on 7/08/1981. The stamp papers which are required to be filed for purposes of drawing up the final decree in a suit for partition of properties were filed by the decree-holder on 25/05/1982. The execution application was filed on 21/03/1994. The objection was taken by the judgment-debtor that the decree was inexecutable in view of Article 136 of the Limitation Act. The said Article provides a period of 12 years for execution of a decree. The learned Single Judge rejected the preliminary objection based on limitation and directed issuance of warrants of possession. The present appeal is against the said order of the learned Single Judge.

(3.) The learned Counsel for the appellant submitted that in view of provisions of Rule 7 of Order XX of the Code of Civil Procedure the decree has to bear the date on which the judgment is pronounced. In the present case the judgment was pronounced on 7/08/1981 whereby a final decree in the suit for partition was passed and therefore, the said date is to be taken as the material date for execution of decree. As per Article 136 of the Limitation Act, the decree was executable within a period of 12 years. Since the execution was filed beyond the period of 12 years, it had to be dismissed on the ground of limitation. In support of his argument the learned Counsel for the appellant besides relying on Article 136 of the Limitation Act, drew our attention to Rule 6A of Order XX, Civil Procedure Code to convass that the period of limitation has to commence from the date of passing of the final judgment. This according to the Counsel is clear from Clause 2 of Rule 6A with particular reference to the language of Sub-clause (b). Clause (2) lays down that every endeavour should be made to ensure that a decree is drawn up as expeditiously as possible and in any case within 15 days from the date on which the judgment is pronounced. According to Sub-clause (b) last paragraph of the judgment shall be deemed to be the decree for purposes of execution of the decree so long as the decree is not drawn up. It is clear from the language of Sub-clause (b) that so long as the decree is not drawn up, the last paragraph of the judgment can be used for purposes of execution of the decree. Clause (2) of Rule 6A permits a party to apply to the Court in a case where the decree is not drawn up within 15 days, to certify that the decree has not been drawn up so that the last para of the judgment maybe treated as decree for purposes of appeal or execution.