AMANULLAH BHUIYAN Vs. ABDUL HAFIZ

JUDGEMENT

(1.) The question raised in this appeal by special leave is whether the period of limitation under Article 182 of the Limitation Act for filing an application for execution of a decree runs from the date when the final decree was passed or from the date when the said decree was engrossed on stamped paper and signed by the judge, the intervening period being 12 years 5 months 22 days.

(2.) Facts of the case are as follows: Respondents got a preliminary decree on September 15, 1945 in Partition Suit No. 30 of 1938 of the Court of Music, Nathalie and the final decree was passed on November 30, 1954, but the decree was drawn and signed on May 22, 1965 when the requisite stamped paper was put in. Thereafter, on May 9, 1967 Title Execution Case No. 36 of 1967 was filed to which an objection was raised by the defendants-appellants under section 47, Civil Procedure Code taking a number of grounds the principal ground being that the execution case was barred by limitation as not having been filed within the period of three years from the date of the final decree which is November 30, 1954. The learned Music rejected this ground and dismissed the objection petition under section 47, Civil Procedure Code holding that limitation would start in this case from May 22, 1965 when the decree was drawn and signed. The learned Subordinate Judge in appeal, relying on the decision in Koshers Mohan Pal vs. Proves Chandra Manual AIR 1924 Cal. 351, reversed the Munsifs order and held that though the decree was drawn and signed of May 22, 1965 it would bear the date of the passing of the final decree i.e. November 30, 1954 and that limitation would run from that date. The plaintiffs appealed, and the High Court Division, by the impugned order dated July 31, 1979, set aside the order of the lower appellate court and restored that of the trial court and directed that the execution proceeding should proceed. Special leave has been granted to see whether this order of the High Court Division is well founded in law in the circumstances as set out above.

(3.) Mr. Abdul Wadud Mian, the learned Advocate, has appeared for the defendants-appellants. Mr. M.G, Bhuiyan, learned Advocate, has appeared for the plaintiff-respondents while Mr. M. H. Khondker, learned counsel has appeared has arnicas curiae in order to assist the court in arriving at a correct decision on this question about which conflicting views have been expressed for over a long period. The question is what is the date of a decree for the purpose of putting it into execution or, for that matter, for preferring an appeal there-from. Period of limitation prescribed in Article 182 for filing an application for execution is three years from the date of decree. Order XX, rule 7 of the Code of Civil Procedure provides that "the decree shall bear the date the day on which the judgment was pronounced", i.e. date of the judgment will be the date of the decree. This tends to show that if the decree is not prepared and signed on the day on which the judgment is announced but is drawn and signed at a later date still it shall bear the date of the judgment. In the instant case final decree was passed on 30-11-54 but the decree was drawn and signed on 22-5-65. The decree could not be drawn and signed earlier as the required stamp-paper was not put in. A decree in a partition suit is an instrument of partition which is chargeable with stamp duty under article 45 of the Stamp Act, 1898, and unless it is duly stamped the decree is not admissible in evidence as provided in section 35 of the Stamp Act.