DOOMAKKE Vs. POLLAPPE

JUDGEMENT

(1.) The Execution Petition filed on 5-3-1983 is resisted by some of the judgment debtors on the ground, inter alia, that it is barred by limitation. The decree is dated 3-11-1972 and hence it does not appear to be barred by limitation. But the ground of limitation is built up on the premise that the decree ought to have borne the date 10-8-1970 (According to the judgment debtors the final judgment was pronounced on the said date) and if time is counted from the said date, period of 12 years stood barred before filing of the execution petition. The Execution Court did not accept the said argument as it held that the date of final decree is the same as shown therein. This revision is in challenge of the order as per which the execution court overruled the objection preferred by those judgment debtors.

(2.) Learned counsel complained that the lower court omitted to advert to two other contentions raised in the written objections. First is that the decree holders are not entitled to a charge on some of the items of the decree schedule properties as those items were purchased by the second petitioner in an auction held by the court, and the other contention is that the court which passed the decree bad never transferred the same to the court where it is now being executed. The decree provides that the money portion in the decree would be a charge on the properties scheduled in the decree. The auction without prejudice to such charge would not affect the executability of the decree in accordance with its terms. The decree was passed by the District Court, Tellicherry, but as per order dated 20-9-1982, the decree was transferred to the Sub Court, Kasaragod where it is now being executed. Thus, those two contentions did not merit consideration and that perhaps would have been the reason why those contentions were not urged in the court below.

(3.) When considering the main objection that the Execution Petition is barred by limitation, the following facts of the case may also be of assistance. In a suit for partition, preliminary decree was passed as early as 21-2-1966. The plaintiff in the suit filed an application for passing final decree. On 10-8-1970, the said application was disposed of by a final judgment. The final decree was drawn up on engrossed stamp papers produced, but the final decree so drawn up was signed by the Judge only on 3-11-1972. The final decree thus bears the said date and not the date of the final judgment. O.20 R.7 of the Code of Civil Procedure (for short the Code) provides that the decree shall bear date the day on which the judgment was pronounced. What is required is not that the decree shall bear the date of the judgment, but shall bear date "the day on which the judgment was pronounced". S.2(9) of the Code defines "Judgment" as the statement given by the Judge of the grounds of a decree. The date of the judgment need not necessarily be the day on which it is pronounced. Pronouncement of the judgment must be in open court (Vide R.1(1) of O.20). When it is pronounced, it shall be dated and signed by the Judge in open court. The date so put is the date of pronouncement. If one date appears on the top of the judgment, it need not be taken as guarantee that the same is the day on which it is pronounced. The date of pronouncement roust, therefore, depend upon the date which the judge has put at the time of pronouncement in open court. In this case, the decree bears the date 3-11-1972 and if regularity of judicial acts can be presumed, there is the presumption that the said date is the date of pronouncement of the judgment since O.20 R.7 of the Code requires that the decree shall bear date, the day on which the judgment is pronounced. That apart, the decree holder should not be prejudiced on account of any mistake which the court has committed in putting a date on the decree different from the date of pronouncement of the judgment. It is the decree which is executed and not the judgment, and hence the decree holder cannot be denied the right of computing the period of limitation from the date shown in the decree. This view has support from a learned Single Judge of the Patna High Court in Kali Prasad v. Bibi Azad (AIR 1938 Patna 149).