PANDEY AKLU SINGH Vs. RAM PRIT TEWARY

JUDGEMENT

(1.) These three miscellaneous appeals arise out of the execution of a decree for mesne profits. After the preliminary decree for mesne profits was passed, an application was made by the decree-holders for ascertainment of the amount of mesne profits, and on 31-5-1947, the court disposed of that application. The order shows that the court gave a direction for the determination of the mesne profits taking the yield at the rate of 10 maunds of paddy per bigha by kuchha weight and that the sale rate was to be the gazette rate. The plaintiffs decree-holders were also directed to file court-fees on the ascertained amount. On 4-7-1947, they were ordered to file court-fees on the ascertained sum for preparation of the decree. Nothing seems to have been done thereafter and for the first time, on 25-4-1950, an application was filed on behalf of the decree-holders for calculation of the mesne profits at the gazette rate and ultimately the gazette sale rate having been ascertained, calculation of the amount of mesne profits was made on 8-8-1950. On necessary court-fees having been filed by the decree-holders, a decree was drawn up and signed on 7-5-1951. Thereafter, the decree-holders made an application for execution of the decree on 24-7-1951, in execution case No. 28 of 1951. Some of the judgment-debtors raised objection to the execution of the decree under Section 47 of the Civil Procedure Code, which gave rise to Miscellaneous Case No. 35 of 1951. The objection was, however, dismissed by the court below and those judgment-debtors filed Miscellaneous Appeal No. 66 of 1952 in this Court. Further proceeding in the execution case was stayed by this Court. Thereafter another execution petition was filed by the decree-holders on 6-5-1954, in Execution Case No. 24 of 1954. Two sets of objections were filed under Section 47, Civil Procedure Code, by the Judgment-debtors which gave rise to Miscellaneous cases Nos. 27 and 31 of 1954. Both these cases were heard together and the court below held that the execution was barred by time and allowed the objection. The decree-holders, therefore, preferred the other two appeals, namely. Miscellaneous Appeals 161 and 162 of 1955. All the three appeals, with the consent of the parties, have been heard together and this judgment will govern all of them.

(2.) The only point that arises for consideration in these appeals is whether the two execution petitions filed in Execution cases Nos. 28 of 1951: and 24 of 1954 were barred by time. The Article of the Limitation Act applicable to the execution petition is Article 182, according to which, so far as these appeals are concerned, the period for the execution of the decree is three years from the date of the decree, There is no dispute as regards the applicability of this Article, but the only question that has been raised is as to what, in the particular circumstances of the present case, the date of the decree will be. The contention on behalf of the judgment-debtors is that the date of the decree is 31-5-1947, when the order directing the ascertainment of mesne profits was passed and if the period of three years is counted from that date, both the execution petitions are barred by time. On the other hand, it has been contended on behalf of the decree-holders that by order dated 31-5-1947, a direction was given for calculating the price of the paddy at the gazette rate which was actually calculated and accepted by the court on 8-8-1950 and that should be the date of the decree for the purpose of computing the period of limitation. Accordingly, it is submitted that the application for the first execution having admittedly been made within three years from that date was well within time.

(3.) "Decree" has been defined in Section 2(2) of the Civil Procedure Code to mean the formal expression of an adjudication which so far as regards the court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It is further provided in the explanation to that section that a decree is preliminary when further proceedings have to be taken before, the suit can be completely disposed of and it is final when such adjudication completely disposes of the suit. Order 20, Rule 7 Civil Procedure Code, provides that the decree shall bear date the day on which the judgment was pronounced.