SHAH CHAMPSHI KUNVERJI Vs. SONI BHAILAL DAMJI

JUDGEMENT

(1.) The facts giving rise to this appeal are quite simple. Soni Bhailal Damji of Bhuj obtained a decree for a sum of Rs. 1329-3-6 together with costs of the suit and future interest against the appellant - defendant in Regular Civil Suit No 8 of 1952 in the Court of the Civil Judge (J. D) at Bhuj. The suit was decided on 31-12-52. A decree in pursuance of the judgment was drawn up and signed by the learned Judge on 2-2-53. The plaintiff-judgment-creditor thereafter filed Darkhast No. 12 of 1956 in the same Court for recovering the amount due under the decree against the defendant-judgment-debtor. That was filed on 27 Before registering the Darkhast the office had raised a point as to how the Darkhast was in time. From the endorsement made on the Darkhast application it appears that after hearing the learned advocate for the judgment-creditor the Darkhast was ordered to be registered. Notice was directed to be issued to the judgment-debtor. The notice had come back unserved as the period for his appearing in the Court was over. On that day it appears that the decree-holder did not prosecute his Darkhast and it came to be disposed off on 21-5-56. Thereafter on 19-3-59 the judgment-creditor filed another Darkhast No. 34 of 1959 for recovering the said amount from the judgment-debtor by attachment and sale of his movable property. The judgment-debtor appeared and resisted the application inter alia contending that since the first Darkhast application filed against him was barred by limitation the subsequent one was not maintainable. The contention raised by the judgment-debtor was that the first Darkhast filed after the period of limitation of three years was over from the date of the decree as required under Art. 182 of the Indian Limitation Act and that therefore it was time-barred and consequently it cannot serve as a step in aid of execution to bring the subsequent Darkhast in time. The learned trial Judge thought that though the limitation runs from the date of the judgment and not from the date of signing the decree but since the date of decree is given as 2-2-53 the period of limitation would begin to run from that date and not from the date of the judgment. He also found that the principle of actus curiae neminum gravabit i. e. act of Court shall prejudice no man would govern the case inasmuch as the judgment-creditor was misled by that date viz. 2-2-53 on the decree and that therefore his filing of the first Darkhast on 27-1-56 was in time. That being so he further found that it was not open to the judgment-debtor to object to the subsequent application for execution on the ground that the previous application was barred by time the matter being res judicata. He therefore rejected the contentions raised by the judgment-debtor and directed the Darkhast to proceed further.

(2.) Feeling dissatisfied with that order passed on 27-11-59 by Mr. B. J. Shelat Joint Civil Judge Bhuj the defendant-judgment-debtor preferred Regular Civil Appeal No. 24 of 1960 in the Court of the District Judge Kutch at Bhuj. The only point before that Court was as to from what date the period contemplated under Art. 182 of the Indian Limitation Act would commence and in his view since the decree was drawn up and signed on 2-2-53 the period of limitation would begin to run from that date and not from the date of the decree as it should be viz. the date of judgment which was 31-12-52. It may be stated here that on the material before us it appears that the decree was drawn and signed on 2-2-53 and not on 31-1-53. In the result therefore he dismissed the appeal and confirmed the order passed by the learned trial Judge. Aggrieved by that decision passed on 9th January 1961 by Mr. V. M. Solanki District Judge Kutch at Bhuj the judgment-debtor has come in appeal before this Court.

(3.) The contention made out by Mr. K. N. Mankad the learned advocate for the appellant was that both the Courts have ignored the material fact about the decree showing the date of 31-12-52 as the date of decree on the basis of the judgment delivered on that date and have only taken into account the date of drawing of the decree and signing of the same by the learned Judge and that has led them to commit an error on a point of law in this proceeding. His contention further was that under Art. 182 of the Indian Limitation Act the period for execution of a decree passed by the Civil Court is three years and that i. e. begins to run from the date of the decree. The date of decree as provided under O. 20 R. 7 of the Civil Procedure Code is the date on which the judgment in the suit was pronounced. Apart from the decree having to bear that date as the date of decree as contemplated under O. 20 R. 7 of the Civil Procedure Code the decree bears that date showing that date to be the date of the decree though at the same time the decree bears the date on which it was drawn up and signed by the learned Judge. It is essential first to ascertain as a fact as to whether the decree bore that date of the judgment as contemplated under O. 20 R. 7 of the Civil Procedure Code for the reason that a point was made out by Mr. Shah the learned advocate for the respondent that it bore only the date when the decree was drawn up and signed by the Judge viz. 2-2-53. Unfortunately though the record was called for while the record has come the original decree has not come-presumably it being in the file of the original suit in which that decree came to be passed. But Mr. Mankad the learned advocate for the appellant had produced before us a certified copy of the decree on the last occasion when the matter was heard and it appears that it bears the date of 31-12-52 as the date of the decree on the basis of the judgment delivered on that date. After the bill of costs is drawn up the date 2-2-53 also appears below which there appears a signature of the learned Judge. The decree that was produced along with the Darkhast application by the judgment-creditor in the trial Court appears to have been taken away by the learned advocate of the decree holder himself and that has not been produced before us. If there was any challenge in that direction namely in respect of the decree not bearing the date as 31 they would not have failed to produce the same. Apart from that position it appears from the application in Darkhast No. 34 of 1959 that he has mentioned the date of the decree in column 3 of his application as 31-12-52. On the material before this Court therefore it appears abundantly clear that the decree which was sought to be executed by the decree-holder-respondent bore two dates. One was 31-12-52 it being the date on which the judgment was pronounced and in pursuance of which the decree was directed to be drawn up and the other of 2-2-53 as the date on which the decree was drawn up and the signature put there below by the learned Judge. In none of the judgments given by the Courts below any statement negativing such a fact appears. Both the judgments have proceeded on the basis that it bore the date on which the decree was drawn up and signed by the learned Judge and that was the date from which the period of limitation would commence under Art. 182 of the Indian Limitation Act.