NATHULAL Vs. NAND RAM

JUDGEMENT

(1.) The facts of this revision petition are that the applicants obtained on 18-21952 from the Court of the Civil Judge, Ujjain, an ex parte money decree for Rs. 371-8-6 against Nandram. Thereafter! the opponent took proceedings for setting aside the ex parte decree which were ultimately dismissed pa 16-31955. The decree-holders then applied for framing of the decree and a copy of the decree being furnished to them. The decree was framed accordingly on 1210-1955. On 21-3-1957 the petitioners filed an application for execution of that decree, That application for execution was on the face of it barred by time. But the decree holders urged in the executing Court that they were entitled to a deduction of the time taken in the proceedings which the defendant opponent had taken for setting aside the ex parte decree. This argument found favour with the civil judge second class, Ujjain who held that the decree holders were entitled to the exclusion of this time under Section 5 Limitation Act and that on the exclusion of that time the application for execution was within time. The judgment-debtor then preferred an appeal in the court of the district judge of Ujjain. The teamed District Judge held that the decree holders were under no circumstances entitled to the deduction of any time under Section 5 Limitation Act which did not apply to execution proceedings. He accordingly held the application for execution barred by time. The decree-holders have now preferred this revision petition.

(2.) Mr. Waghmare learned counsel for the petitioners, did not dispute that Section 5 Limitation Act had no applicability to the execution proceedings and that under Article 182(1) an application for execution of a decree has to be made within three years of the date of the decree, which means the date when the judgment was pronounced and not the date when the decree is formally drawn up. He however attempted to argue that Article 182(1) was applicable to that decree or order which was capable of execution at the date thereof; that as no decree was drawn up on 18-2-1952 it could not be said that an executable decree was in existence on that day; and that it was only on 12-1.0-1955 when the decree was framed that the decree-holders acquired a right to enforce the decree and consequently the decree holders could apply for execution of the decree at any time within three years of the date when the decree had been drawn up.

(3.) There is no force in the contention advanced by the learned counsel for the applicants. It is well settled that the expression "date of the decree" in the Limitation Act means the date the decree is directed to bear under p. 20 Rule 7 C. P. C. that is the date on which the judgment is pronounced and not the date when the decree is formally drawn up. Thus the period of limitation for an application under Article 182(1) Limitation Act begins to run when the judgment is pronounced. That provision no doubt assumes that the decree or order is capable of execution at the date thereof. It has no applicability in the execution of a decree which contains something in itself making it effective or executable not immediately on it date but on some future date. As observed by the Privy Council in Rameshwar Singh v. Homeshwar Singh, AIR 1921 PC 31, when Article 182 (1), Limitation Act "prescribes three years from the date of a decree or order within which it must be enforced, the language, read with the context, refers only to an order or decree made in such a form as to render it capable in the circumstances of being enforced." The principle laid down by the Privy Council does not mean that a decree is not enforceable unless it is drawn up. All that it means is that there must be something in the decree itself or any circumstances connected with it which makes it executable only on the happening of a particular contin- gency. It is erroneous to say that a decree becomes executable only when it is drawn up. In connection with the effectiveness of a certificate to act as a guardian of a minor, the Privy Council observed in Munghiram v. Gursahai Nand, ILR 17 Cal 347;