SUNDERLAL AND SONS Vs. YAGENDRA NATH SINGH

JUDGEMENT

(1.) This is an application for execution. The decree was passed on 18th September, 1962. The decree-holder applied for certified copy on the 15th September, 1962. He obtained the said certified copy on the 15th March, 1964. The application for execution was made on the 10th June, 1975. The question, is, whether the said decree can be executed now. In this application two contentions were urged it was submitted, firstly, that the claim for execution had become barred by lapse of time. It was, secondly, submitted that the execution being by an unregistered firm, such execution was not permissible. So far as the first question of limitation is concerned the relevant Article is Article 136 of the Limitation Act, 1963. The said Article provides as follows:

(2.) Contention on behalf of the decree-holder is that the time taken for obtaining certified copy of the decree should be excluded. It was contended that in view of the provisions of Rule 10 of Chapter 17 of the Rules of the Original Side of this Court a decree could not be put into execution without obtaining a certified copy of the decree. Therefore, it was submitted that the decree did not become enforceable until after the certified copy had been obtained. In the premises, it was urged that the time taken for obtaining the certified copy was the time to make the decree enforceable and until that time the decree not being enforceable time would not run. The expression 'right to enforce the decree' came up for consideration by a Division Bench of this court in the case of Lala Baijnath Prosad v. Narsingdas Guzrati, in the context of the provisions of Article 183 of the Limitation Act, 1908. The Division Bench observed that Article 183 spoke of 'a present right to enforce the decree'. It did not speak of a right under the decree but of the right to enforce it. In other words, it did not speak of the rights to the benefit provided for under the decree but of the right to put the decree into service for the purpose of extracting those benefits. The Division Bench came to the conclusion that in a case where the nature of the decree was such that it was immediately executable the starting point of limitation would be the date of passing of the decree and not when the certified copy of the decree as is required by Chapter 17, Rule 10 of the High Court was obtained. Though the language used in the present Article is different, I am of the opinion, that the ratio of the said decision would be applicable in the instant case. The legislative intent on this aspect is manifest by the fact that the legislature has chosen not to exclude the period of time taken for obtaining the certified copy for the purpose of execution under Section 12 of the Limitation Act, in the face of such specific exclusion for certain other specified purposes in the different categories of exclusion, to exclude the time for obtaining certified copy for execution proceeding would be, in my opinion, going contrary to the expressed legislative intention. Section 12 of the Limitation Act does not permit exclusion of this period. On the contrary, it suggests that this period should not be excluded. The language of Article 136 of the Limitation Act also does not warrant exclusion of this period. This question, further, is concluded by the judgment of the learned single Judge of this Court in the case of Biswapati Dey v. Kensington Stores. Counsel for the decree-holder, however, drew my attention to the observations of the Supreme Court in the case of Sm. Saila Bala Dassi v. Nirmala Sundari Dassi. There the Supreme Court observed referring to Chapter 16, Rule 27 of the Original Side Rules that the effect of the provision was that until the decree was drawn up as mentioned thereunder no certified copy would be issued to the party and without a certified copy no execution proceeding could be taken. Relying on the aforesaid observation counsel submitted that as no execution proceeding can be taken the decree would not become executable until after certified copy was obtained. In my opinion, this contention is not valid. The aforesaid observation of the Supreme Court was made entirely in a different context, namely, the procedure for execution. It will become executable the moment the decree is passed and as such I am unable to accept the aforesaid observations of the Supreme Court in support of the conten-(ion urged on behalf of the decree-holder. Reliance similarly was placed on a Bench decision of this Court in the case of Satyendra Nath Bose v. Bibhuti Bhusan Ehar, where the Division Bench observed that certified copy was necessary for proper execution of the decree. That decision, in my opinion, cannot be availe'd of by the decree-holder in aid of his contention that until certified copy was obtained, the decree did not become executable in terms of Article 136 of the Limitation Act. In the aforesaid view of the matter, the first contention in opposition to this application, therefore, must be accepted.

(3.) The second point in opposition to this application for execution was that the firm which was seeking execution being not a registered firm execution could not be directed. That the application is by a firm is apparent from the petition. From the application and the decree and the cause papers it does not appear that the firm is a registered one. A point therefore was taken that the firm wag not registered. In answer to this contention a document purported to be a certified copy of registration of the firm was produced. The said document does not indicate that this firm of Sunderlal and Sons was itself registered as such. It is true that in respect of the firm Santi Swarup Gupta the address of Sunderlal and Sons at 7/1A, Clive Row, Calcutta, is indicated as the address but that does not indicate that this applicant firm is registered under the Partnership Act. In the aforesaid view of the matter I must proceed on the basis that the firm is unregistered. If that is so, the question is whether such an unregistered firm is entitled to maintain this application for execution. On this context counsel on behalf of the respondent drew my attention to the provisions of Section 69 of the Partnership Act. The said provisions provide as follows:--