1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 10222 OF 2017
(Arising out of SLP (C) No.24862 of 2012)
MOHINDER SINGH (DEAD) …. APPELLANTS
THROUGH L.Rs.
:Versus:
PARAMJIT SINGH & ORS. …. RESPONDENTS
J U D G M E N T
A.M. Khanwilkar, J.
1. The singular question that emerges for consideration in
this appeal is: whether Section 14 of the Limitation Act, 1963
(for short “the 1963 Act”), has no impact in view of the
provisions contained in Punjab Limitation (Custom) Act, 1920
(for short “the 1920 Act”) and, if so, will it be applicable in the
facts of this case?
2
2. The relevant undisputed facts of this case can be
delineated as under:
A gift deed was executed by one Ujjagar Singh in respect
of the lands, which included two parcels of lands, measuring
7 Kanals 17 Marlas bearing Khasra No.46/16, situated in the
revenue estate of Village Pandori, Tehsil Batala; and 11 Kanals
4 Marlas bearing Khasra Nos.25/4/5, No.25/4/1, 25/3/3 and
25/3/6 situated in the revenue estate of Village Ghuman,
Tehsil Batala, District Amritsar (Punjab), to one Rura Singh
son of Surendra Singh (predecessor of the respondents) vide
Gift Deed dated 6th March, 1963. The said land was ancestral
land in the hands of Ujjagar Singh wherein Mohinder Singh
(predecessor of the appellants) and others were coparceners.
Resultantly, the original appellant Mohinder Singh filed a suit
for declaration that the gift deed was void, being Suit No.367
of 1963 before the Sub Judge, First Class, Batala. During the
pendency of the said suit, a compromise was arrived at
between Rura Singh (predecessor of the respondents) and
Mohinder Singh (predecessor of the appellants). The parties
made statements before the Trial Court that as per the
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compromise, Mohinder Singh was to be given the land
comprised in Khasara No.46/16 situated at Village Pandori,
Tehsil Batala and 26/4/2/4, 26/3/3 Min East, 26/4/1,
26/3/3 Min West of Village Ghuman after the death of Ujjagar
Singh out of the entire land and Mohinder Singh also gave up
his house. A statement was made by Rura Singh before the
Court which reads thus:
“Stated that decree for declaration for ownership regarding
Khasra no. 46/16 situated at Pandori, No.26/4/2/4, 26/3/3
Min. East. 26/4/1, 26/3/3 Min West situated at Ghuman be
passed in favour of the plaintiff. Remaining suit be
dismissed. Parties shall bear their own expenses.”
3. On the basis of the said arrangement, the Court disposed
of the suit on 20th August, 1963 on the basis of compromise in
the following terms:
“In view of the above statements of the parties, the suit as
prayed for is decreed herewith solely in respect of khasra
number 46/16 of village Pandori and 26/4/2/4, 26/3/3 Min
east, 26/4/1, 26/3/3 Min west of village Ghuman against
the defendant no.2. The suit against defendant No.1 will
stand dismissed. The parties will bear their own costs.”
4. Mohinder Singh then took out execution petition No.430
of 1964 on 23rd December, 1964. The said execution petition
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was dismissed being premature, by the Executing Court vide
order dated 7th August, 1965 which reads thus:
“COPY OF ORDER: As per decision of D.H. counsel the
execution is dismissed as pre-mature and be consigned
record-room on the Satisfied.”
5. The said Ujjagar Singh died on 14th January, 1971,
whereafter Mohinder Singh took out second execution petition
on 18th February, 1971. He also took out an application for
summoning the original file with the decree sheet. This
application was filed on 23rd August, 1971 before the
Executing Court. It then transpired that the decree was
prepared and the decree sheet was drawn on 19th August,
1972. However, the execution petition instituted by Mohinder
Singh came to be dismissed for default on 2nd February, 1973.
On the same day, Mohinder Singh took out third execution
petition which was dismissed on 2nd February, 1974 on the
ground that the same was not maintainable. The relevant
portion of the order passed by the Executing Court in
Execution Application No.11/1973 reads thus:
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“3. The following issue was framed:-
1) Whether the decree is executable? O.P.D.H.
4. From the perusal of the decree sheet copy of which is
Ex. D.H.1. it is abundantly clear that the decree which is
sought to be executed is a declaratory one and it ensure to
the benefit of the decree holder after the death of the vendor.
The decree-holder can only file a separate suit if so
advised for possession of the suit property but the
execution is not maintainable. The declaratory decree
cannot be executed and the possession of the land in
question cannot be granted to the decree holder in
execution of the same. This issue is decided against the
decree-holder.
In view of my above said finding the application is
dismissed. File be consigned to the Record Room.”
(emphasis supplied)
6. Taking cue from the observations in this order and left
with no other option for getting possession of the land referred
to in the decree passed in suit No.367 of 1963, Mohinder
Singh filed a fresh suit on 11th June, 1974, in the Court of
Civil Judge, Junior Division, Batala, being C.S. No.173/1974.
He asserted that the declaratory decree was prepared on 19th
August, 1972 and because of the order passed by the
Executing Court on 2nd February, 1974, he had to file the suit
for possession on the basis of the cause of action which had
arisen on 19th August, 1972 and because of the refusal of the
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respondents (defendants) to deliver the suit lands to him. The
respondents filed written statement in which they admitted
the fact that the decree was prepared on 19th August, 1972,
but asserted that the present suit was barred by limitation as
the same was filed after lapse of 3 years from the date of death
of Ujjagar Singh. In that, Ujjagar Singh died on 14th January,
1971 whereas the suit has been filed on 11th June, 1974.
Further, the factum of preparation of decree on 19th August,
1972 would be of no avail as the decree had been passed in
the previous suit on 20th August, 1963. The date on which the
previous suit was decided would be the relevant date.
However, subsequently the respondents (defendants) filed
additional written statements so as to withdraw the admission
made earlier that the decree sheet was prepared on 19th
August, 1972.
7. The Civil Judge, Junior Division, Batala vide his
judgment dated 20th May, 2008 negatived the objection taken
by the respondents regarding the suit being barred by
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limitation. The relevant portion of the judgment of the Trial
Court reads thus:
“13. Article 2(b) of the Punjab Limitation (Customs) Act 1920
provides the period of limitation of three years for a suit for
possession of an ancestral immovable property which has
been alienated, on the ground that alienation is not binding
on the plaintiff according to custom where such declaratory
decree is obtained. The time from which period of limitation
is to begin is the date on which right to sue accrues or the
date on which declaratory decree is obtained whichever is
later. It is the case of the defendants that Ujjagar Singh died
on 14.01.1971 the entry of the death of Ujjagar Singh is also
placed on the record as Ex.D1 and the period of limitation is
to be computed from 14.01.1971, when the right to sue
accrues to the plaintiff on the death of Ujjagar Singh and the
present suit is not within the period of three years as the
suit has been filed on 11.06.1974. However the article 2(b)
of the Punjab Limitation (Customs) Act 1920, provides
that period of three years for the institution of the suit
is to be ascertained from the date on which right to sue
accrues or the date on which declaratory decree is
obtained whichever is later. It is claimed by the plaintiff
that decree sheet was prepared on 19.08.1972, the fact
which is admitted by the defendants while filing the
original written statement. However, it is argued by
counsel for the defendants that order in the execution
application No. 32 of 1971, dated 19.8.1972 on which the
decree is alleged to have been prepared by the plaintiff is in
fact with regard to the dismissal of the said execution
application due to the non appearance of the parties. I am
of the considered opinion that only on the ground that
said order dated 19.08.1972 relates with the dismissal of
the execution it cannot be said that decree sheet was
not prepared during the proceedings of the said
execution. It has already been held that the decree
sheet was prepared during the execution bearing No. 32
8
of 1971. Even if it is considered that the decree sheet
was prepared on dated 29.07.1972 and not on
19.08.1972 as discussed above even then the present
suit is within the period of limitation i.e. 3 years as per
article 2(b) of the Punjab Limitation (Customs) Act 1920.
14. It is also argued by counsel for the defendants that
while filing the replication inconsistent pleas taken by the
plaintiff from the plaint already fled by him and the
replication filed by the plaintiff can be taken into
consideration. In support of his contention, counsel for the
defendants has relied upon 2001 (3) Civil Court Cases 565
(Rajasthan) Gurjant Singh Versus Krishan Chander and Ors.
But I am of the considered view that in fact the defendants
themselves have taken the inconsistent pleas by filing the
amended written statement from the original written
statement. In the amended written statement it is claimed
by the defendants that no decree sheet was prepared on
19.08.1972 and the decree sheet of Civil suit No. 367 of
14.06.1963 has been passed on 20.8.1963 itself. The
plaintiff has only contested the pleadings of the amended
written statement by filing the replication and accordingly it
cannot be said that the plaintiff has taken the inconsistent
pleas from the pleas already taken by him in his plaint, while
filing the replication.
15. In view of discussion above, this issue No. 1 is decided
in favour of the plaintiff. The suit of the plaintiff is also held
within the period of limitation and issue No.2 is also decided
in favour of the plaintiff and against the defendants.”
(emphasis supplied)
8. Aggrieved, the respondents (defendants) filed a first
appeal before the District Court being Civil Appeal No.373 of
2008 (12th June, 2008) which was heard by the Additional
District Judge, Gurdaspur and was finally dismissed on 2nd
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February, 2012. The District Court rejected the argument of
the respondents on the issue of suit being barred by
limitation, by observing thus:
“…But learned counsel for the appellants has contended that
decree sheet may be prepared at any time but it relates back
to the date of judgment. Though it is a settled proposition of
law that decree follows the judgment, but in the instant case
there is no fault on behalf of respondent no.1 who has able
to prove on record that when he filed the suit while
challenging the gift deed which was decided on the basis of
the compromise and statements of the parties on 20.08.1963
and thereafter he filed an application for execution of the
same in which objections were raised by Rura through
counsel and execution was dismissed being premature and
after the death of Ujjagar Singh in the year 1971 he again
moved an execution applicable in which the fresh decree
sheet was ordered to be prepared which was ultimately
prepared in the presence of the parties and during those
proceedings no copy of the decree sheet which has now been
referred by learned counsel for the appellants has placed on
file nor any such objection has been raised that decree sheet
has already been prepared and more so, the decree sheet
was ordered to be prepared in presence of both the parties.
Later on execution was dismissed on filing of objections by
appellants by learned Sub Judge 1st Class, Batala with the
observation that it enures to the benefit of the decree holder
after the death of the vendor and same was ultimately
ordered to be dismissed on 02.02.1974 and if one computed
the period of limitation from the day of preparation of decree
i.e. in the year 1972 because the day when the execution
application has been dismissed by Court of Shri A.S.
Rampal, the then Sub Judge 1st Class, Batala, by observing
then the suit of respondent no.1 is certainly within
limitation.”
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9. The respondents then preferred a second appeal before
the High Court of Punjab and Haryana at Chandigarh, being
Regular Second Appeal No.166 of 2012 (O&M), which has been
allowed by the learned Single Judge of the High Court, vide
judgment dated 25th April, 2012. The High Court accepted the
argument of the respondents in the following words:
“I have carefully considered the aforesaid contentions. It is
undisputed that the earlier suit was decided on the basis of
compromise vide judgment dated 20.08.1963. From the
judgments of the courts below, it appears that formal decree
in the said suit was not drawn immediately but was drawn
on 19.08.1972 when plaintiff moved for the same because
while seeking execution of the said decree, the plaintiff learnt
that formal decree had not been drawn. However, formal
decree drawn on 19.08.1972 on the basis of compromise
judgment dated 20.08.1963 shall relate back to the date
of judgment i.e. 20.8.1963. Merely because formal
decree was drawn on 19.08.1972, it cannot be said that
limitation period started on 19.08.1972. On the
contrary, earlier declaratory decree was passed vide
judgment dated 20.08.1963 and therefore, limitation
period in the instant case commenced on 14.01.1971 on
the death of Ujjagar Singh. Consequently, suit filed on
11.06.1974 i.e. after expiry of limitation period of three
years is patently barred by limitation. Finding of the
courts below to the contrary is patently perverse and
illegal and, therefore, unsustainable.
Substantial question of law arises for determination in this
second appeal as to whether suit is barred by limitation and
finding of the courts below holding the suit to be within the
limitation is perverse and illegal. The said substantial
question of law is answered in favour of
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defendants/appellants holding that the suit is barred by
limitation.
Resultantly the instant second appeal is allowed.
Judgments and decrees of both the courts below are set
aside. Suit filed by the respondent No.1-plaintiff stands
dismissed. The parties are, however, left to suffer their
respective costs throughout.”
(emphasis supplied)
10. In this backdrop, the present appeal, by special leave,
has been filed by the original plaintiff Mohinder Singh who
died during the pendency of the appeal before this Court and
consequently, his heirs and legal representatives have been
brought on record to espouse the cause. According to the
appellants, the suit for possession was filed by Mohinder
Singh on the basis of the declaratory decree which was within
the limitation period of three years as provided by Article 2(b)
of the Schedule to the 1920 Act. Inasmuch as, Section 2(b) of
the said Act stipulates that the limitation would commence
from the date on which the right to sue accrues or the date on
which the declaratory decree is obtained, whichever is later. In
the present case, the right to sue accrued after the death of
Ujjagar Singh on 14th January, 1971. However, the plaintiff
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was advised to pursue execution of the decree passed in the
previous Suit No.367 of 1963 and was driven to file the
present suit on 11th June, 1974 after the order was passed by
the Executing Court on 2nd February, 1974. Nevertheless, as
the decree sheet was prepared only on 19th August, 1972, the
suit filed on 11th June, 1974 was within limitation in terms of
Article 2(b) of the 1920 Act. To buttress this submission
reliance has been placed on the decision in Lala Balmukund
(Dead) Through L.Rs. Vs. Lajwanti and Ors.1, wherein it has
been held that “obtaining” the copy means drawing of a
decree. That happened in this case on 19th August, 1972 and
for which reason the suit filed on 11th June, 1974 was within
limitation. Reliance has been placed on the contemporaneous
record, including written statement and the appeal memo filed
before the First Appellate Court by the respondents
(defendants), admitting preparation of decree on 19th August,
1972. Reliance is also placed on Section 14 of the 1963 Act
for exclusion of time during which Mohinder Singh (plaintiff)
had bona fide pursued the execution proceedings. It is
1
(1975) 1 SCC 725
13
submitted that Section 14 of the 1963 Act will be attracted not
only because of Section 29(2) of the 1963 Act, but also
because of Section 5 of the 1920 Act expressly providing for
application of Sections 4 to 25 of the 1963 Act. Reliance is
placed on a three-Judge Bench decision of this Court in
Consolidated Engineering Enterprises Vs. Principal
Secretary, Irrigation Department and Ors.,
2 which has
enunciated that a liberal approach should be adopted by the
Court, unless the application of Section 14 is expressly
excluded by the special law. It is contended that although the
first execution petition moved by the plaintiff was dismissed as
premature as also the subsequent execution petition was
dismissed on 2nd February, 1974 on the ground that the
proper remedy was to file a suit for possession, the defendants
neither raised any objection nor challenged the said orders.
On the other hand, the plaintiff acted upon the said orders
and eventually filed a suit for possession on 11th June, 1974.
Relying on the decision of this Court in Union of India and
2
(2008) 7 SCC 169
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Ors. Vs. West Coast Paper Mills Ltd. and Anr. 3 , it is
submitted that the conclusion reached by the Trial Court and
commended to the First Appellate Court, is the correct
approach in the fact situation of the present case. Taking any
other view would be awarding bonus to the respondents
despite Rura Singh (predecessor of respondents) having agreed
for giving possession of the subject properties to Mohinder
Singh (predecessor of the appellants) vide compromise decree
dated 20th August, 1963.
11. The respondents, on the other hand, submitted that the
High Court has justly reversed the concurrent judgment of two
Courts on the issue of suit being barred by limitation after
having found that the decree drawn on 19th August, 1972 on
the basis of the compromise judgment dated 19th August,
1963 must relate back to the date of the judgment i.e. 19th
August, 1963. Thus, mere preparation or drawing of a formal
decree on 19th August, 1972 would be of no avail to the
appellants as the limitation in the present case had
3
(2004) 3 SCC 458
15
commenced consequent to the death of Ujjagar Singh on 14th
January, 1971 but the suit was filed on 11th June, 1974 after
the expiry of 3 years‟ limitation period. It is submitted that the
parties are governed by the provisions of Article 2(b) of the
Schedule to the 1920 Act and the plaintiff failed to exercise
due diligence for which reason cannot take advantage in
calculating the limitation period from 19th August, 1972. It is
contended that Section 14 of the 1963 Act was limited to
accord protection to a litigant against the bar of limitation
when he institutes civil proceeding, which by reason of some
technical defects cannot be decided on merits and is
dismissed. To buttress this submission, reliance has been
placed on paragraphs 21, 22 and 31 in particular, of the
decision in the case of Consolidated Engineering
Enterprises (supra). According to the respondents, the
subject suit was barred by limitation as it was not instituted
within the limitation period specified in Article 2(b) of the
Schedule to the 1920 Act and provisions of Section 14 will be
of no avail to the plaintiff. Furthermore, no explanation or
justification whatsoever has been offered by the plaintiff for
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the period between 2nd February, 1974 (when the third
execution petition was dismissed) and 11th June, 1974 (when
the suit for possession was filed by the plaintiff). The question
of showing any indulgence, much less by invoking Section 14
of the 1963 Act, does not arise. The respondents pray for
dismissal of this appeal and affirmation of the view taken by
the High Court whilst allowing the second appeal filed by
them.
12. We have heard Mr. Mahabir Singh, learned senior
counsel appearing for the appellants and Mr. Manoj Swarup,
learned counsel appearing for the respondents.
13. There is no dispute that the issue of suit being barred by
limitation will have to be answered with reference to the
special law as applicable i.e. the 1920 Act. The said Act was
enacted to amend and consolidate the law governing the
limitation of suits relating to alienations of ancestral
immovable property and appointments of heirs by persons
who follow custom in the area to which the Act would apply.
Section 8 of the 1920 Act postulates that when any person
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obtains a decree declaring that an alienation of ancestral
immovable property or appointment of an heir is not binding
on him according to custom, the decree shall enure for the
benefit of all persons entitled to impeach the alienation or the
appointment of an heir. For such a declaratory suit, the
limitation is provided in the schedule. Article 2 of the Schedule
also envisages that the period of limitation for a suit for
possession of ancestral immovable property which has been
alienated, on the ground that alienation is not binding on the
plaintiff according to custom, inter alia, within three years
from the date the declaratory decree is obtained. Section 8 of
the 1920 Act reads thus:
“8. Benefit of declaratory decree.- When any person
obtains a decree declaring that an alienation of ancestral
immoveable property or the appointment of an heir is not
binding on him according to custom, the decree shall enure
for the benefit of all persons entitled to impeach the
alienation or the appointment of an heir.”
Article 2 of the Schedule reads thus:
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SCHEDULE
Description of suit Period of
Limitation
Time from
which period
begins to run
1. xxx
2. A suit for possession of
ancestral immovable property
which has been alienated on
the ground that the alienation
is not binding on the plaintiff
according to custom(a)
If no declaratory
decree of the nature
referred to in Article 1
is obtained
(b) If such declaratory
decree is obtained
3. xxx xxx xxx
4. xxx xxx xxx
5. xxx xxx xxx
6. xxx xxx xxx
6 Years
3 years
As above
The date on which the
right to sue accrues or
the date on which the
declaratory decree is
obtained, whichever is
later.
14. In the present case, the declaratory decree has been
passed on 20th August, 1963 on the basis of the compromise
between the plaintiff - Mohinder Singh (predecessor of the
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appellants) and defendant - Rura Singh (predecessor of the
respondents). However, that being a conditional decree, the
right to sue for possession would not have accrued until the
death of Ujjagar Singh which happened only on 14th January,
1971. The appellants are not invoking the first part of Article
2(b), which postulates that the time from which period
commences would be the date on which the right to sue
accrues. First, because declaratory decree was passed on
20.8.1963; second, because it was a conditional decree and
was unenforceable during the life time of Ujjagar Singh; third,
because Ujjagar Singh died on 14th January, 1971 but the
fresh suit was filed on 11th June, 1974 due to the observation
made by the Executing Court in its order dated 2nd February,
1974. Resultantly, the appellants are relying on the second
part of Article 2(b), which postulates that the time from which
period would commence to file a suit for possession would be
the date on which the “declaratory decree is obtained”.
15. The substratum of the claim of the plaintiff is founded on
the factum of date on which the decree sheet in respect of the
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compromise decree was prepared and drawn on 19th August,
1972. The expression “declaratory decree is obtained” would
take within its fold the event of drawing of or preparation of
the decree. Notably, the Trial Court as well as the Appellate
Court has accepted the stand taken by the plaintiff that the
compromise decree was prepared or drawn on 19th August,
1972. Even the High Court has not reversed that finding. The
High Court, however, has held that drawing of a formal decree
on 19th August, 1972 will be of no avail as it would relate back
to the compromise decree passed on 20th August, 1963. That
would not save the limitation period for filing the suit for
possession. Whereas, the cause of action for filing such suit
had arisen on 14th January, 1971 on the death of Ujjagar
Singh but the suit was filed after the expiry of limitation period
of three years on 11th June, 1974.
16. In this backdrop, the moot question in the present case
is the meaning of the expression “the declaratory decree is
obtained”. Does it mean the date of pronouncement of the
judgment i.e. 20th August, 1963 or the date of preparation of
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decree sheet i.e. 19th August, 1972? The expression “obtain”,
as understood in common parlance and defined in Concise
Oxford English Dictionary, would mean - “acquire, secure,
have granted to one”. This may also encompass obtaining a
copy of the decree. In central legislation, the expression is
made explicit by providing “for obtaining a copy of the decree”,
as was considered in Lala Balmukund (supra). The
expression “obtained”, therefore, would pre-suppose, in the
context of reckoning limitation period for filing a suit for
possession, of securing a certified copy of the decree (decreesheet)
on the basis of which, the suit for possession could be
instituted. In other words, the date on which the decree is
drawn would be the relevant date for commencement of
limitation period. As in the case of execution proceedings,
mere passing of the judgment by the Court is not enough but
a decree has to be drawn on the basis of such declaratory
judgment which is then put into execution. Applying the same
analogy, if a suit for possession is founded on a declaratory
decree it could proceed only after a drawn up decree on the
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basis of a declaratory judgment of the Civil Court is made
ready and obtained by the decree-holder.
17. The expression “the declaratory decree is obtained”,
therefore, assumes significance. If the legislature intended to
provide it differently, it could have couched the provision as
“the date on which the declaratory judgment is passed”. The
legislature in enacting 1920 Act, however, consciously used
the expression “the declaratory decree is obtained”, which
intrinsically includes the date on which a formal decree is
drawn or prepared and not merely the date on which a
declaratory judgment is passed by the Court. Taking any other
view would be rewriting the expression “the declaratory decree
is obtained” and doing violence to the legislative intent.
Besides, the expression “obtained” in Article 2(b) is prefixed by
expression “is”; and further it follows with expression
“whichever is later”. Even this would reinforce the position
that the date on which the declaratory decree is drawn could
ignite the period of limitation for instituting a suit for
possession and not a mere declaratory judgment rendered by
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the Court in the previous suit (for declaration simplicitor).
Taking any other view will render the last part of Article 2(b),
providing for “whichever is later” nugatory and otiose.
18. The appellants have justly relied on the exposition in the
case of Lala Balmukund (supra), (in particular paragraphs
20 and 21), which has answered similar issue regarding the
date of obtaining decree and while explicating the term
“obtaining a copy”, has held that the time will start only after
the decree is drawn. It is apposite to reproduce the dictum in
paragraph 19, which reads thus:
“19. We do not wish to encumber this judgment with a
detailed discussion of all the citations and the reasoning
advanced therein in support of one or the other view. It will
be sufficient to say that upon the language of Section 12(2)
both the constructions are possible, but the one adopted by
the majority of the courts, appears to be more consistent
with justice and good sense. The Limitation Act deprives
or restricts the right of an aggrieved person to have
recourse to legal remedy, and where its language is
ambiguous, that construction should be preferred which
preserves such remedy to the one which bars or defeats
it. A court ought to avoid an interpretation upon a
statute of limitation by implication or inference as may
have a penalising effect unless it is driven to do so by
the irresistible force of the language employed by the
Legislature.”
(emphasis supplied)
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19. It may be useful to advert to the elucidation in W.B.
Essential Commodities Supply Corpn. Vs. Swadesh Agro
Farming & Storage Pvt. Ltd. and Anr.4. Indeed, in that case
the factual narrative on which the question was examined was
somewhat different, namely, whether the period of limitation
under Article 136 of the 1963 Act will start from the date of
the decree or from the date when the decree is actually drawn
up and signed by the Judge, as articulated in paragraph 2 of
the judgment. In paragraph 12 of the judgment this Court
observed thus:
“12. There may, however, be situations in which a decree
may not be enforceable on the date it is passed. First, a
case where a decree is not executable until the
happening of a given contingency, for example, when a
decree for recovery of possession of immovable property
directs that it shall not be executed till the standing
crop is harvested, in such a case time will not begin to
run until harvesting of the crop and the decree becomes
enforceable from that date and not from the date of the
judgment/decree. But where no extraneous event is to
happen on the fulfillment of which alone the decree can
be executed it is not a conditional decree and is capable
of execution from the very date it is passed (Yeshwant
Deorao v. Walchand Ramchand5). Secondly, when there is
a legislative bar for the execution of a decree then
4
(1999) 8 SCC 315
5 AIR 1951 SC 16
25
enforceability will commence when the bar ceases. Thirdly,
in a suit for partition of immovable properties after
passing of preliminary decree when, in final decree
proceedings, an order is passed by the court declaring
the rights of the parties in the suit properties, it is not
executable till final decree is engrossed on non-judicial
stamp paper supplied by the parties within the time
specified by the Court and the same is signed by the
Judge and sealed. It is in this context that the
observations of this Court in Shankar Balwant Lokhande
v. Chandrakant Shankar Lokhande 6 have to be
understood. These observations do not apply to a money
decree and, therefore, appellant can derive no benefit from
them.”
(emphasis supplied)
20. As in the present case, even though the declaratory
judgment was pronounced by the Court in the previous suit
on 20th August, 1963, on the basis of compromise entered into
by Mohinder Singh (original plaintiff) and Rura Singh (original
defendant), that declaration could be given effect to only after
the death of Ujjagar Singh. The decree as passed was
enforceable only thereafter. Suffice it to observe that the
decree sheet having been made ready on 19th August, 1972
and the suit for possession filed three years thereafter on 11th
June, 1974, was thus within the prescribed period of
6 (1995) 3 SCC 413
26
limitation in terms of Article 2(b) of the Schedule to the 1920
Act.
21. Assuming for the sake of argument that the three years‟
period provided in Article 2(b) ought to be reckoned from the
date of death of Ujjagar Singh i.e. 14th January, 1971, the
question would be whether the provisions of Section 14 of the
1963 Act would come to the aid of the plaintiff (appellants).
The purport of Section 14 of the 1963 Act has been delineated
in the case of Union of India and Ors. Vs. West Coast Paper
Mills Ltd. (supra). The Court while considering the question
as to whether the suit was barred by limitation examined the
question whether Section 14 of the 1963 Act was applicable to
that case. In paragraph 14 of the judgment, after referring to
the decision in CST Vs. Parson Tools and Plants 7, this
Court observed thus:
“14. In the submission of Mr. Malhotra, placing reliance on
CST v. Parson Tools and Plants8, to attract the applicability
of Section 14 of the Limitation Act, the following
requirements must be specified: (SCC p.25, para 6)
7
(1975) 4 SCC 22
8
(1975) 4 SCC 22 : 1975 SCC (Tax) 185
27
„6. (1) both the prior and subsequent proceedings are
civil proceedings prosecuted by the same party;
(2) the prior proceedings had been prosecuted with
due diligence and in good faith;
(3) the failure of the prior proceedings was due to a
defect of jurisdiction or other case of a like nature;
(4) both the proceedings are proceedings in a Court.‟
In the submission of the learned Senior Counsel, filing of
civil writ petition claiming money relief cannot be said to be
a proceeding instituted in good faith and secondly, dismissal
of writ petition on the ground that it was not an appropriate
remedy for seeking money relief cannot be said to be 'defect
of jurisdiction or other cause of a like nature' within the
meaning of Section 14 of the Limitation Act. It is true that
the writ petition was not dismissed by the High Court on the
ground of defect of jurisdiction. However, Section 14 of the
Limitation Act is wide in its application, inasmuch as it
is not confined in its applicability only to cases of defect
of jurisdiction but it is applicable also to cases where the
prior proceedings have failed on account of other causes
of like nature. The expression ‘other cause of like
nature’ came up for the consideration of this Court in
Roshanlal Kuthalia v. R.B. Mohan Singh Oberai9 and it
was held that Section 14 of the Limitation Act is wide
enough to cover such cases where the defects are not
merely jurisdictional strictly so called but others more
or less neighbours to such deficiencies. Any
circumstances, legal or factual, which inhibits
entertainment or consideration by the Court of the
dispute on the merits comes within the scope of the
Section and a liberal touch must inform the
interpretation of the Limitation Act which deprives the
remedy of one who has a right.”
(emphasis supplied)
22. The expanse of Section 14 of the Act, therefore, is not
limited to mere jurisdictional issue but also other cause of a
9
(1975) 4 SCC 628
28
like nature. Taking cue from this decision, the appellant would
contend that the plaintiff immediately after compromise
judgment was pronounced on 20th August, 1963 took recourse
to Execution Petition No.433/1964 on 23rd December, 1964
but the same was dismissed by the Executing Court on 7th
August, 1965, as being premature. The plaintiff verily believed
that the execution of the decree passed in the previous suit
would result in getting possession of the property albeit after
the death of Ujjagar Singh. Consequently, after the death of
Ujjagar Singh on 14th January, 1971, the plaintiff moved
second execution petition on 18th February, 1971 and in those
proceedings moved an application for summoning the file with
a decree sheet. It transpired that the decree was drawn and
the decree sheet was made ready on 19th August, 1972, but
the said execution petition stood dismissed for default on 2nd
February, 1973. For that reason, the appellant on the same
day moved the third execution petition i.e. on 2nd February,
1973 which, however, was dismissed on 2nd February, 1974
on the ground that the remedy for the plaintiff to get
possession of the suit property was to file a suit for possession
29
on the basis of the declaratory decree. It is only thereafter the
plaintiff resorted to the subject suit, being Civil Suit
No.173/1974 filed on 11th June, 1974.
23. Notably, the respondents did not question the decisions
of the Executing Court – be it on the ground that it was
premature or on the ground that the remedy for the plaintiff
was to file a suit for possession. Indubitably, the proceedings
such as execution petition resorted to by the plaintiff would be
a civil proceeding. Further, the Trial Court as well as the
Appellate Court have found that the plaintiff was pursuing
that remedy in good faith. That finding has not been
disturbed by the High Court. The reasons which weighed with
the Executing Court for dismissing the execution petitions
were just causes covered by the expression “defect of
jurisdiction” and in any case, “other cause of a like nature”,
ascribed by the Executing Court for its inability to grant relief
of possession of suit property to the plaintiff. The fact
situation of the present case would certainly satisfy the tests
specified in Section 14 of the 1963 Act, for showing indulgence
30
to the plaintiff to exclude the period during which the plaintiff
pursued execution proceedings for reckoning the period of
limitation for filing the suit for possession on 11th June, 1974.
The argument of the respondents that the plaintiff did not offer
any explanation for the period from 2nd February, 1974 till 11th
June, 1974 does not impress us at all. That period is only of
four months and once the period from 14th January, 1971 till
2nd February, 1974 was to be excluded as being time spent by
the plaintiff in pursuing other civil proceedings in good faith,
there would be no delay in filing of the suit. What is posited
by Section 14 of the 1963 Act is the exclusion of time of
proceeding bona fide in Court without jurisdiction or other
cause of a like nature, for which the concerned Court is
unable to entertain the lis. The fact that no explanation
whatsoever has been offered for the period from 2nd February,
1974 to 11th June, 1974, therefore, would not whittle down
the rights of the plaintiff to institute and pursue suit for
possession of the subject land on the basis of declaratory
decree.
31
24. That takes us to the last question as to whether Section
14 of the 1963 Act has any application to the case on hand.
This issue need not detain us. Section 5 of the 1920 Act is
explicit and it unambiguously postulates that the suit referred
to in the First Schedule to the said Act would be governed by
the provisions contained in Sections 4 to 25 (inclusive) of the
Limitation Act. Section 5 of the 1920 Act reads thus:
“5. Dismissal of suits of the descriptions specified in the
Act if instituted after the period of limitation therein
prescribed has expired.- Subject to the provision contained
in sections 4 to 25 (inclusive), of the Indian Limitation Act,
1908, and notwithstanding anything to the contrary
contained in the first schedule of the said Act, every suit, of
any description specified in the schedule annexed to this
Act, instituted after the period of limitation prescribed
therefor in the schedule shall be dismissed, although
limitation has not been set up as a defence.”
25. It may be apposite to also advert to Section 29(2) of the
1963 Act, the same reads thus:
“29. Savings.- (1) xxx
(2) Where any special or local law prescribes for any suit,
appeal or application a period of limitation different from the
period prescribed by the Schedule, the provisions of section
3 shall apply as if such period were the period prescribed by
the Schedule and for the purpose of determining any period
of limitation prescribed for any suit, appeal or application by
32
any special or local law, the provisions contained in sections
4 to 24 (inclusive) shall apply only in so far as, and to the
extent to which, they are not expressly excluded by such
special or local law.
(3) xxx
(4) xxx.”
26. We find force in the submission of the appellants that
Section 14 of the 1963 Act would be attracted in the fact
situation of the present case, in light of Section 5 of the 1920
Act and also Section 29(2) of the 1963 Act coupled with the
fact that there is no express provision in the 1920 Act, to
exclude the application of Section 14 of the 1963 Act.
27. Both sides have relied on the exposition in the case of
Consolidated Engineering Enterprises (supra). In that case,
the Court noted that Section 14 of the 1963 Act envisages that
it is a provision to afford protection to a litigant against bar of
limitation when he institutes a proceeding which by reason of
some technical defects cannot be decided on merits and is
dismissed. While considering the provisions of Section 16 and
its application, this Court observed that a proper approach will
have to be adopted and the provisions will have to be
33
interpreted so as to advance cause of action rather than abort
the proceedings, inasmuch as the section is intended to
provide relief against bar of limitation in cases of mistaken
remedy or selection of a wrong forum.
28. It is not necessary to dilate on this judgment any further,
having already observed that both the Trial Court and the
Appellate Court were right in decreeing the suit in favour of
the original plaintiff (predecessor of the appellants) by rejecting
the objection regarding the suit being barred by limitation. The
High Court committed manifest error in overturning the
decisions of the Trial Court and the First Appellate Court,
merely on the ground that the formal decree drawn on 19th
August, 1972 on the basis of compromise judgment dated 20th
August, 1963 must relate back to the date of the judgment i.e.
20th August, 1963 and would not arrest the limitation period
until the preparation of the decree on 19th August, 1972.
29. In view of the above, we allow this appeal and set aside
the impugned judgment and order and decree passed by the
High Court and instead, restore the judgment and decree
34
passed by the Trial Court as affirmed by the First Appellate
Court.
30. Accordingly, this appeal is allowed with no order as to
costs.
..……………………………...CJI.
(Dipak Misra)
…..…………………………..….J.
(A.M. Khanwilkar)
New Delhi;
March 28, 2018.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 10222 OF 2017
(Arising out of SLP (C) No.24862 of 2012)
MOHINDER SINGH (DEAD) …. APPELLANTS
THROUGH L.Rs.
:Versus:
PARAMJIT SINGH & ORS. …. RESPONDENTS
J U D G M E N T
A.M. Khanwilkar, J.
1. The singular question that emerges for consideration in
this appeal is: whether Section 14 of the Limitation Act, 1963
(for short “the 1963 Act”), has no impact in view of the
provisions contained in Punjab Limitation (Custom) Act, 1920
(for short “the 1920 Act”) and, if so, will it be applicable in the
facts of this case?
2
2. The relevant undisputed facts of this case can be
delineated as under:
A gift deed was executed by one Ujjagar Singh in respect
of the lands, which included two parcels of lands, measuring
7 Kanals 17 Marlas bearing Khasra No.46/16, situated in the
revenue estate of Village Pandori, Tehsil Batala; and 11 Kanals
4 Marlas bearing Khasra Nos.25/4/5, No.25/4/1, 25/3/3 and
25/3/6 situated in the revenue estate of Village Ghuman,
Tehsil Batala, District Amritsar (Punjab), to one Rura Singh
son of Surendra Singh (predecessor of the respondents) vide
Gift Deed dated 6th March, 1963. The said land was ancestral
land in the hands of Ujjagar Singh wherein Mohinder Singh
(predecessor of the appellants) and others were coparceners.
Resultantly, the original appellant Mohinder Singh filed a suit
for declaration that the gift deed was void, being Suit No.367
of 1963 before the Sub Judge, First Class, Batala. During the
pendency of the said suit, a compromise was arrived at
between Rura Singh (predecessor of the respondents) and
Mohinder Singh (predecessor of the appellants). The parties
made statements before the Trial Court that as per the
3
compromise, Mohinder Singh was to be given the land
comprised in Khasara No.46/16 situated at Village Pandori,
Tehsil Batala and 26/4/2/4, 26/3/3 Min East, 26/4/1,
26/3/3 Min West of Village Ghuman after the death of Ujjagar
Singh out of the entire land and Mohinder Singh also gave up
his house. A statement was made by Rura Singh before the
Court which reads thus:
“Stated that decree for declaration for ownership regarding
Khasra no. 46/16 situated at Pandori, No.26/4/2/4, 26/3/3
Min. East. 26/4/1, 26/3/3 Min West situated at Ghuman be
passed in favour of the plaintiff. Remaining suit be
dismissed. Parties shall bear their own expenses.”
3. On the basis of the said arrangement, the Court disposed
of the suit on 20th August, 1963 on the basis of compromise in
the following terms:
“In view of the above statements of the parties, the suit as
prayed for is decreed herewith solely in respect of khasra
number 46/16 of village Pandori and 26/4/2/4, 26/3/3 Min
east, 26/4/1, 26/3/3 Min west of village Ghuman against
the defendant no.2. The suit against defendant No.1 will
stand dismissed. The parties will bear their own costs.”
4. Mohinder Singh then took out execution petition No.430
of 1964 on 23rd December, 1964. The said execution petition
4
was dismissed being premature, by the Executing Court vide
order dated 7th August, 1965 which reads thus:
“COPY OF ORDER: As per decision of D.H. counsel the
execution is dismissed as pre-mature and be consigned
record-room on the Satisfied.”
5. The said Ujjagar Singh died on 14th January, 1971,
whereafter Mohinder Singh took out second execution petition
on 18th February, 1971. He also took out an application for
summoning the original file with the decree sheet. This
application was filed on 23rd August, 1971 before the
Executing Court. It then transpired that the decree was
prepared and the decree sheet was drawn on 19th August,
1972. However, the execution petition instituted by Mohinder
Singh came to be dismissed for default on 2nd February, 1973.
On the same day, Mohinder Singh took out third execution
petition which was dismissed on 2nd February, 1974 on the
ground that the same was not maintainable. The relevant
portion of the order passed by the Executing Court in
Execution Application No.11/1973 reads thus:
5
“3. The following issue was framed:-
1) Whether the decree is executable? O.P.D.H.
4. From the perusal of the decree sheet copy of which is
Ex. D.H.1. it is abundantly clear that the decree which is
sought to be executed is a declaratory one and it ensure to
the benefit of the decree holder after the death of the vendor.
The decree-holder can only file a separate suit if so
advised for possession of the suit property but the
execution is not maintainable. The declaratory decree
cannot be executed and the possession of the land in
question cannot be granted to the decree holder in
execution of the same. This issue is decided against the
decree-holder.
In view of my above said finding the application is
dismissed. File be consigned to the Record Room.”
(emphasis supplied)
6. Taking cue from the observations in this order and left
with no other option for getting possession of the land referred
to in the decree passed in suit No.367 of 1963, Mohinder
Singh filed a fresh suit on 11th June, 1974, in the Court of
Civil Judge, Junior Division, Batala, being C.S. No.173/1974.
He asserted that the declaratory decree was prepared on 19th
August, 1972 and because of the order passed by the
Executing Court on 2nd February, 1974, he had to file the suit
for possession on the basis of the cause of action which had
arisen on 19th August, 1972 and because of the refusal of the
6
respondents (defendants) to deliver the suit lands to him. The
respondents filed written statement in which they admitted
the fact that the decree was prepared on 19th August, 1972,
but asserted that the present suit was barred by limitation as
the same was filed after lapse of 3 years from the date of death
of Ujjagar Singh. In that, Ujjagar Singh died on 14th January,
1971 whereas the suit has been filed on 11th June, 1974.
Further, the factum of preparation of decree on 19th August,
1972 would be of no avail as the decree had been passed in
the previous suit on 20th August, 1963. The date on which the
previous suit was decided would be the relevant date.
However, subsequently the respondents (defendants) filed
additional written statements so as to withdraw the admission
made earlier that the decree sheet was prepared on 19th
August, 1972.
7. The Civil Judge, Junior Division, Batala vide his
judgment dated 20th May, 2008 negatived the objection taken
by the respondents regarding the suit being barred by
7
limitation. The relevant portion of the judgment of the Trial
Court reads thus:
“13. Article 2(b) of the Punjab Limitation (Customs) Act 1920
provides the period of limitation of three years for a suit for
possession of an ancestral immovable property which has
been alienated, on the ground that alienation is not binding
on the plaintiff according to custom where such declaratory
decree is obtained. The time from which period of limitation
is to begin is the date on which right to sue accrues or the
date on which declaratory decree is obtained whichever is
later. It is the case of the defendants that Ujjagar Singh died
on 14.01.1971 the entry of the death of Ujjagar Singh is also
placed on the record as Ex.D1 and the period of limitation is
to be computed from 14.01.1971, when the right to sue
accrues to the plaintiff on the death of Ujjagar Singh and the
present suit is not within the period of three years as the
suit has been filed on 11.06.1974. However the article 2(b)
of the Punjab Limitation (Customs) Act 1920, provides
that period of three years for the institution of the suit
is to be ascertained from the date on which right to sue
accrues or the date on which declaratory decree is
obtained whichever is later. It is claimed by the plaintiff
that decree sheet was prepared on 19.08.1972, the fact
which is admitted by the defendants while filing the
original written statement. However, it is argued by
counsel for the defendants that order in the execution
application No. 32 of 1971, dated 19.8.1972 on which the
decree is alleged to have been prepared by the plaintiff is in
fact with regard to the dismissal of the said execution
application due to the non appearance of the parties. I am
of the considered opinion that only on the ground that
said order dated 19.08.1972 relates with the dismissal of
the execution it cannot be said that decree sheet was
not prepared during the proceedings of the said
execution. It has already been held that the decree
sheet was prepared during the execution bearing No. 32
8
of 1971. Even if it is considered that the decree sheet
was prepared on dated 29.07.1972 and not on
19.08.1972 as discussed above even then the present
suit is within the period of limitation i.e. 3 years as per
article 2(b) of the Punjab Limitation (Customs) Act 1920.
14. It is also argued by counsel for the defendants that
while filing the replication inconsistent pleas taken by the
plaintiff from the plaint already fled by him and the
replication filed by the plaintiff can be taken into
consideration. In support of his contention, counsel for the
defendants has relied upon 2001 (3) Civil Court Cases 565
(Rajasthan) Gurjant Singh Versus Krishan Chander and Ors.
But I am of the considered view that in fact the defendants
themselves have taken the inconsistent pleas by filing the
amended written statement from the original written
statement. In the amended written statement it is claimed
by the defendants that no decree sheet was prepared on
19.08.1972 and the decree sheet of Civil suit No. 367 of
14.06.1963 has been passed on 20.8.1963 itself. The
plaintiff has only contested the pleadings of the amended
written statement by filing the replication and accordingly it
cannot be said that the plaintiff has taken the inconsistent
pleas from the pleas already taken by him in his plaint, while
filing the replication.
15. In view of discussion above, this issue No. 1 is decided
in favour of the plaintiff. The suit of the plaintiff is also held
within the period of limitation and issue No.2 is also decided
in favour of the plaintiff and against the defendants.”
(emphasis supplied)
8. Aggrieved, the respondents (defendants) filed a first
appeal before the District Court being Civil Appeal No.373 of
2008 (12th June, 2008) which was heard by the Additional
District Judge, Gurdaspur and was finally dismissed on 2nd
9
February, 2012. The District Court rejected the argument of
the respondents on the issue of suit being barred by
limitation, by observing thus:
“…But learned counsel for the appellants has contended that
decree sheet may be prepared at any time but it relates back
to the date of judgment. Though it is a settled proposition of
law that decree follows the judgment, but in the instant case
there is no fault on behalf of respondent no.1 who has able
to prove on record that when he filed the suit while
challenging the gift deed which was decided on the basis of
the compromise and statements of the parties on 20.08.1963
and thereafter he filed an application for execution of the
same in which objections were raised by Rura through
counsel and execution was dismissed being premature and
after the death of Ujjagar Singh in the year 1971 he again
moved an execution applicable in which the fresh decree
sheet was ordered to be prepared which was ultimately
prepared in the presence of the parties and during those
proceedings no copy of the decree sheet which has now been
referred by learned counsel for the appellants has placed on
file nor any such objection has been raised that decree sheet
has already been prepared and more so, the decree sheet
was ordered to be prepared in presence of both the parties.
Later on execution was dismissed on filing of objections by
appellants by learned Sub Judge 1st Class, Batala with the
observation that it enures to the benefit of the decree holder
after the death of the vendor and same was ultimately
ordered to be dismissed on 02.02.1974 and if one computed
the period of limitation from the day of preparation of decree
i.e. in the year 1972 because the day when the execution
application has been dismissed by Court of Shri A.S.
Rampal, the then Sub Judge 1st Class, Batala, by observing
then the suit of respondent no.1 is certainly within
limitation.”
10
9. The respondents then preferred a second appeal before
the High Court of Punjab and Haryana at Chandigarh, being
Regular Second Appeal No.166 of 2012 (O&M), which has been
allowed by the learned Single Judge of the High Court, vide
judgment dated 25th April, 2012. The High Court accepted the
argument of the respondents in the following words:
“I have carefully considered the aforesaid contentions. It is
undisputed that the earlier suit was decided on the basis of
compromise vide judgment dated 20.08.1963. From the
judgments of the courts below, it appears that formal decree
in the said suit was not drawn immediately but was drawn
on 19.08.1972 when plaintiff moved for the same because
while seeking execution of the said decree, the plaintiff learnt
that formal decree had not been drawn. However, formal
decree drawn on 19.08.1972 on the basis of compromise
judgment dated 20.08.1963 shall relate back to the date
of judgment i.e. 20.8.1963. Merely because formal
decree was drawn on 19.08.1972, it cannot be said that
limitation period started on 19.08.1972. On the
contrary, earlier declaratory decree was passed vide
judgment dated 20.08.1963 and therefore, limitation
period in the instant case commenced on 14.01.1971 on
the death of Ujjagar Singh. Consequently, suit filed on
11.06.1974 i.e. after expiry of limitation period of three
years is patently barred by limitation. Finding of the
courts below to the contrary is patently perverse and
illegal and, therefore, unsustainable.
Substantial question of law arises for determination in this
second appeal as to whether suit is barred by limitation and
finding of the courts below holding the suit to be within the
limitation is perverse and illegal. The said substantial
question of law is answered in favour of
11
defendants/appellants holding that the suit is barred by
limitation.
Resultantly the instant second appeal is allowed.
Judgments and decrees of both the courts below are set
aside. Suit filed by the respondent No.1-plaintiff stands
dismissed. The parties are, however, left to suffer their
respective costs throughout.”
(emphasis supplied)
10. In this backdrop, the present appeal, by special leave,
has been filed by the original plaintiff Mohinder Singh who
died during the pendency of the appeal before this Court and
consequently, his heirs and legal representatives have been
brought on record to espouse the cause. According to the
appellants, the suit for possession was filed by Mohinder
Singh on the basis of the declaratory decree which was within
the limitation period of three years as provided by Article 2(b)
of the Schedule to the 1920 Act. Inasmuch as, Section 2(b) of
the said Act stipulates that the limitation would commence
from the date on which the right to sue accrues or the date on
which the declaratory decree is obtained, whichever is later. In
the present case, the right to sue accrued after the death of
Ujjagar Singh on 14th January, 1971. However, the plaintiff
12
was advised to pursue execution of the decree passed in the
previous Suit No.367 of 1963 and was driven to file the
present suit on 11th June, 1974 after the order was passed by
the Executing Court on 2nd February, 1974. Nevertheless, as
the decree sheet was prepared only on 19th August, 1972, the
suit filed on 11th June, 1974 was within limitation in terms of
Article 2(b) of the 1920 Act. To buttress this submission
reliance has been placed on the decision in Lala Balmukund
(Dead) Through L.Rs. Vs. Lajwanti and Ors.1, wherein it has
been held that “obtaining” the copy means drawing of a
decree. That happened in this case on 19th August, 1972 and
for which reason the suit filed on 11th June, 1974 was within
limitation. Reliance has been placed on the contemporaneous
record, including written statement and the appeal memo filed
before the First Appellate Court by the respondents
(defendants), admitting preparation of decree on 19th August,
1972. Reliance is also placed on Section 14 of the 1963 Act
for exclusion of time during which Mohinder Singh (plaintiff)
had bona fide pursued the execution proceedings. It is
1
(1975) 1 SCC 725
13
submitted that Section 14 of the 1963 Act will be attracted not
only because of Section 29(2) of the 1963 Act, but also
because of Section 5 of the 1920 Act expressly providing for
application of Sections 4 to 25 of the 1963 Act. Reliance is
placed on a three-Judge Bench decision of this Court in
Consolidated Engineering Enterprises Vs. Principal
Secretary, Irrigation Department and Ors.,
2 which has
enunciated that a liberal approach should be adopted by the
Court, unless the application of Section 14 is expressly
excluded by the special law. It is contended that although the
first execution petition moved by the plaintiff was dismissed as
premature as also the subsequent execution petition was
dismissed on 2nd February, 1974 on the ground that the
proper remedy was to file a suit for possession, the defendants
neither raised any objection nor challenged the said orders.
On the other hand, the plaintiff acted upon the said orders
and eventually filed a suit for possession on 11th June, 1974.
Relying on the decision of this Court in Union of India and
2
(2008) 7 SCC 169
14
Ors. Vs. West Coast Paper Mills Ltd. and Anr. 3 , it is
submitted that the conclusion reached by the Trial Court and
commended to the First Appellate Court, is the correct
approach in the fact situation of the present case. Taking any
other view would be awarding bonus to the respondents
despite Rura Singh (predecessor of respondents) having agreed
for giving possession of the subject properties to Mohinder
Singh (predecessor of the appellants) vide compromise decree
dated 20th August, 1963.
11. The respondents, on the other hand, submitted that the
High Court has justly reversed the concurrent judgment of two
Courts on the issue of suit being barred by limitation after
having found that the decree drawn on 19th August, 1972 on
the basis of the compromise judgment dated 19th August,
1963 must relate back to the date of the judgment i.e. 19th
August, 1963. Thus, mere preparation or drawing of a formal
decree on 19th August, 1972 would be of no avail to the
appellants as the limitation in the present case had
3
(2004) 3 SCC 458
15
commenced consequent to the death of Ujjagar Singh on 14th
January, 1971 but the suit was filed on 11th June, 1974 after
the expiry of 3 years‟ limitation period. It is submitted that the
parties are governed by the provisions of Article 2(b) of the
Schedule to the 1920 Act and the plaintiff failed to exercise
due diligence for which reason cannot take advantage in
calculating the limitation period from 19th August, 1972. It is
contended that Section 14 of the 1963 Act was limited to
accord protection to a litigant against the bar of limitation
when he institutes civil proceeding, which by reason of some
technical defects cannot be decided on merits and is
dismissed. To buttress this submission, reliance has been
placed on paragraphs 21, 22 and 31 in particular, of the
decision in the case of Consolidated Engineering
Enterprises (supra). According to the respondents, the
subject suit was barred by limitation as it was not instituted
within the limitation period specified in Article 2(b) of the
Schedule to the 1920 Act and provisions of Section 14 will be
of no avail to the plaintiff. Furthermore, no explanation or
justification whatsoever has been offered by the plaintiff for
16
the period between 2nd February, 1974 (when the third
execution petition was dismissed) and 11th June, 1974 (when
the suit for possession was filed by the plaintiff). The question
of showing any indulgence, much less by invoking Section 14
of the 1963 Act, does not arise. The respondents pray for
dismissal of this appeal and affirmation of the view taken by
the High Court whilst allowing the second appeal filed by
them.
12. We have heard Mr. Mahabir Singh, learned senior
counsel appearing for the appellants and Mr. Manoj Swarup,
learned counsel appearing for the respondents.
13. There is no dispute that the issue of suit being barred by
limitation will have to be answered with reference to the
special law as applicable i.e. the 1920 Act. The said Act was
enacted to amend and consolidate the law governing the
limitation of suits relating to alienations of ancestral
immovable property and appointments of heirs by persons
who follow custom in the area to which the Act would apply.
Section 8 of the 1920 Act postulates that when any person
17
obtains a decree declaring that an alienation of ancestral
immovable property or appointment of an heir is not binding
on him according to custom, the decree shall enure for the
benefit of all persons entitled to impeach the alienation or the
appointment of an heir. For such a declaratory suit, the
limitation is provided in the schedule. Article 2 of the Schedule
also envisages that the period of limitation for a suit for
possession of ancestral immovable property which has been
alienated, on the ground that alienation is not binding on the
plaintiff according to custom, inter alia, within three years
from the date the declaratory decree is obtained. Section 8 of
the 1920 Act reads thus:
“8. Benefit of declaratory decree.- When any person
obtains a decree declaring that an alienation of ancestral
immoveable property or the appointment of an heir is not
binding on him according to custom, the decree shall enure
for the benefit of all persons entitled to impeach the
alienation or the appointment of an heir.”
Article 2 of the Schedule reads thus:
18
SCHEDULE
Description of suit Period of
Limitation
Time from
which period
begins to run
1. xxx
2. A suit for possession of
ancestral immovable property
which has been alienated on
the ground that the alienation
is not binding on the plaintiff
according to custom(a)
If no declaratory
decree of the nature
referred to in Article 1
is obtained
(b) If such declaratory
decree is obtained
3. xxx xxx xxx
4. xxx xxx xxx
5. xxx xxx xxx
6. xxx xxx xxx
6 Years
3 years
As above
The date on which the
right to sue accrues or
the date on which the
declaratory decree is
obtained, whichever is
later.
14. In the present case, the declaratory decree has been
passed on 20th August, 1963 on the basis of the compromise
between the plaintiff - Mohinder Singh (predecessor of the
19
appellants) and defendant - Rura Singh (predecessor of the
respondents). However, that being a conditional decree, the
right to sue for possession would not have accrued until the
death of Ujjagar Singh which happened only on 14th January,
1971. The appellants are not invoking the first part of Article
2(b), which postulates that the time from which period
commences would be the date on which the right to sue
accrues. First, because declaratory decree was passed on
20.8.1963; second, because it was a conditional decree and
was unenforceable during the life time of Ujjagar Singh; third,
because Ujjagar Singh died on 14th January, 1971 but the
fresh suit was filed on 11th June, 1974 due to the observation
made by the Executing Court in its order dated 2nd February,
1974. Resultantly, the appellants are relying on the second
part of Article 2(b), which postulates that the time from which
period would commence to file a suit for possession would be
the date on which the “declaratory decree is obtained”.
15. The substratum of the claim of the plaintiff is founded on
the factum of date on which the decree sheet in respect of the
20
compromise decree was prepared and drawn on 19th August,
1972. The expression “declaratory decree is obtained” would
take within its fold the event of drawing of or preparation of
the decree. Notably, the Trial Court as well as the Appellate
Court has accepted the stand taken by the plaintiff that the
compromise decree was prepared or drawn on 19th August,
1972. Even the High Court has not reversed that finding. The
High Court, however, has held that drawing of a formal decree
on 19th August, 1972 will be of no avail as it would relate back
to the compromise decree passed on 20th August, 1963. That
would not save the limitation period for filing the suit for
possession. Whereas, the cause of action for filing such suit
had arisen on 14th January, 1971 on the death of Ujjagar
Singh but the suit was filed after the expiry of limitation period
of three years on 11th June, 1974.
16. In this backdrop, the moot question in the present case
is the meaning of the expression “the declaratory decree is
obtained”. Does it mean the date of pronouncement of the
judgment i.e. 20th August, 1963 or the date of preparation of
21
decree sheet i.e. 19th August, 1972? The expression “obtain”,
as understood in common parlance and defined in Concise
Oxford English Dictionary, would mean - “acquire, secure,
have granted to one”. This may also encompass obtaining a
copy of the decree. In central legislation, the expression is
made explicit by providing “for obtaining a copy of the decree”,
as was considered in Lala Balmukund (supra). The
expression “obtained”, therefore, would pre-suppose, in the
context of reckoning limitation period for filing a suit for
possession, of securing a certified copy of the decree (decreesheet)
on the basis of which, the suit for possession could be
instituted. In other words, the date on which the decree is
drawn would be the relevant date for commencement of
limitation period. As in the case of execution proceedings,
mere passing of the judgment by the Court is not enough but
a decree has to be drawn on the basis of such declaratory
judgment which is then put into execution. Applying the same
analogy, if a suit for possession is founded on a declaratory
decree it could proceed only after a drawn up decree on the
22
basis of a declaratory judgment of the Civil Court is made
ready and obtained by the decree-holder.
17. The expression “the declaratory decree is obtained”,
therefore, assumes significance. If the legislature intended to
provide it differently, it could have couched the provision as
“the date on which the declaratory judgment is passed”. The
legislature in enacting 1920 Act, however, consciously used
the expression “the declaratory decree is obtained”, which
intrinsically includes the date on which a formal decree is
drawn or prepared and not merely the date on which a
declaratory judgment is passed by the Court. Taking any other
view would be rewriting the expression “the declaratory decree
is obtained” and doing violence to the legislative intent.
Besides, the expression “obtained” in Article 2(b) is prefixed by
expression “is”; and further it follows with expression
“whichever is later”. Even this would reinforce the position
that the date on which the declaratory decree is drawn could
ignite the period of limitation for instituting a suit for
possession and not a mere declaratory judgment rendered by
23
the Court in the previous suit (for declaration simplicitor).
Taking any other view will render the last part of Article 2(b),
providing for “whichever is later” nugatory and otiose.
18. The appellants have justly relied on the exposition in the
case of Lala Balmukund (supra), (in particular paragraphs
20 and 21), which has answered similar issue regarding the
date of obtaining decree and while explicating the term
“obtaining a copy”, has held that the time will start only after
the decree is drawn. It is apposite to reproduce the dictum in
paragraph 19, which reads thus:
“19. We do not wish to encumber this judgment with a
detailed discussion of all the citations and the reasoning
advanced therein in support of one or the other view. It will
be sufficient to say that upon the language of Section 12(2)
both the constructions are possible, but the one adopted by
the majority of the courts, appears to be more consistent
with justice and good sense. The Limitation Act deprives
or restricts the right of an aggrieved person to have
recourse to legal remedy, and where its language is
ambiguous, that construction should be preferred which
preserves such remedy to the one which bars or defeats
it. A court ought to avoid an interpretation upon a
statute of limitation by implication or inference as may
have a penalising effect unless it is driven to do so by
the irresistible force of the language employed by the
Legislature.”
(emphasis supplied)
24
19. It may be useful to advert to the elucidation in W.B.
Essential Commodities Supply Corpn. Vs. Swadesh Agro
Farming & Storage Pvt. Ltd. and Anr.4. Indeed, in that case
the factual narrative on which the question was examined was
somewhat different, namely, whether the period of limitation
under Article 136 of the 1963 Act will start from the date of
the decree or from the date when the decree is actually drawn
up and signed by the Judge, as articulated in paragraph 2 of
the judgment. In paragraph 12 of the judgment this Court
observed thus:
“12. There may, however, be situations in which a decree
may not be enforceable on the date it is passed. First, a
case where a decree is not executable until the
happening of a given contingency, for example, when a
decree for recovery of possession of immovable property
directs that it shall not be executed till the standing
crop is harvested, in such a case time will not begin to
run until harvesting of the crop and the decree becomes
enforceable from that date and not from the date of the
judgment/decree. But where no extraneous event is to
happen on the fulfillment of which alone the decree can
be executed it is not a conditional decree and is capable
of execution from the very date it is passed (Yeshwant
Deorao v. Walchand Ramchand5). Secondly, when there is
a legislative bar for the execution of a decree then
4
(1999) 8 SCC 315
5 AIR 1951 SC 16
25
enforceability will commence when the bar ceases. Thirdly,
in a suit for partition of immovable properties after
passing of preliminary decree when, in final decree
proceedings, an order is passed by the court declaring
the rights of the parties in the suit properties, it is not
executable till final decree is engrossed on non-judicial
stamp paper supplied by the parties within the time
specified by the Court and the same is signed by the
Judge and sealed. It is in this context that the
observations of this Court in Shankar Balwant Lokhande
v. Chandrakant Shankar Lokhande 6 have to be
understood. These observations do not apply to a money
decree and, therefore, appellant can derive no benefit from
them.”
(emphasis supplied)
20. As in the present case, even though the declaratory
judgment was pronounced by the Court in the previous suit
on 20th August, 1963, on the basis of compromise entered into
by Mohinder Singh (original plaintiff) and Rura Singh (original
defendant), that declaration could be given effect to only after
the death of Ujjagar Singh. The decree as passed was
enforceable only thereafter. Suffice it to observe that the
decree sheet having been made ready on 19th August, 1972
and the suit for possession filed three years thereafter on 11th
June, 1974, was thus within the prescribed period of
6 (1995) 3 SCC 413
26
limitation in terms of Article 2(b) of the Schedule to the 1920
Act.
21. Assuming for the sake of argument that the three years‟
period provided in Article 2(b) ought to be reckoned from the
date of death of Ujjagar Singh i.e. 14th January, 1971, the
question would be whether the provisions of Section 14 of the
1963 Act would come to the aid of the plaintiff (appellants).
The purport of Section 14 of the 1963 Act has been delineated
in the case of Union of India and Ors. Vs. West Coast Paper
Mills Ltd. (supra). The Court while considering the question
as to whether the suit was barred by limitation examined the
question whether Section 14 of the 1963 Act was applicable to
that case. In paragraph 14 of the judgment, after referring to
the decision in CST Vs. Parson Tools and Plants 7, this
Court observed thus:
“14. In the submission of Mr. Malhotra, placing reliance on
CST v. Parson Tools and Plants8, to attract the applicability
of Section 14 of the Limitation Act, the following
requirements must be specified: (SCC p.25, para 6)
7
(1975) 4 SCC 22
8
(1975) 4 SCC 22 : 1975 SCC (Tax) 185
27
„6. (1) both the prior and subsequent proceedings are
civil proceedings prosecuted by the same party;
(2) the prior proceedings had been prosecuted with
due diligence and in good faith;
(3) the failure of the prior proceedings was due to a
defect of jurisdiction or other case of a like nature;
(4) both the proceedings are proceedings in a Court.‟
In the submission of the learned Senior Counsel, filing of
civil writ petition claiming money relief cannot be said to be
a proceeding instituted in good faith and secondly, dismissal
of writ petition on the ground that it was not an appropriate
remedy for seeking money relief cannot be said to be 'defect
of jurisdiction or other cause of a like nature' within the
meaning of Section 14 of the Limitation Act. It is true that
the writ petition was not dismissed by the High Court on the
ground of defect of jurisdiction. However, Section 14 of the
Limitation Act is wide in its application, inasmuch as it
is not confined in its applicability only to cases of defect
of jurisdiction but it is applicable also to cases where the
prior proceedings have failed on account of other causes
of like nature. The expression ‘other cause of like
nature’ came up for the consideration of this Court in
Roshanlal Kuthalia v. R.B. Mohan Singh Oberai9 and it
was held that Section 14 of the Limitation Act is wide
enough to cover such cases where the defects are not
merely jurisdictional strictly so called but others more
or less neighbours to such deficiencies. Any
circumstances, legal or factual, which inhibits
entertainment or consideration by the Court of the
dispute on the merits comes within the scope of the
Section and a liberal touch must inform the
interpretation of the Limitation Act which deprives the
remedy of one who has a right.”
(emphasis supplied)
22. The expanse of Section 14 of the Act, therefore, is not
limited to mere jurisdictional issue but also other cause of a
9
(1975) 4 SCC 628
28
like nature. Taking cue from this decision, the appellant would
contend that the plaintiff immediately after compromise
judgment was pronounced on 20th August, 1963 took recourse
to Execution Petition No.433/1964 on 23rd December, 1964
but the same was dismissed by the Executing Court on 7th
August, 1965, as being premature. The plaintiff verily believed
that the execution of the decree passed in the previous suit
would result in getting possession of the property albeit after
the death of Ujjagar Singh. Consequently, after the death of
Ujjagar Singh on 14th January, 1971, the plaintiff moved
second execution petition on 18th February, 1971 and in those
proceedings moved an application for summoning the file with
a decree sheet. It transpired that the decree was drawn and
the decree sheet was made ready on 19th August, 1972, but
the said execution petition stood dismissed for default on 2nd
February, 1973. For that reason, the appellant on the same
day moved the third execution petition i.e. on 2nd February,
1973 which, however, was dismissed on 2nd February, 1974
on the ground that the remedy for the plaintiff to get
possession of the suit property was to file a suit for possession
29
on the basis of the declaratory decree. It is only thereafter the
plaintiff resorted to the subject suit, being Civil Suit
No.173/1974 filed on 11th June, 1974.
23. Notably, the respondents did not question the decisions
of the Executing Court – be it on the ground that it was
premature or on the ground that the remedy for the plaintiff
was to file a suit for possession. Indubitably, the proceedings
such as execution petition resorted to by the plaintiff would be
a civil proceeding. Further, the Trial Court as well as the
Appellate Court have found that the plaintiff was pursuing
that remedy in good faith. That finding has not been
disturbed by the High Court. The reasons which weighed with
the Executing Court for dismissing the execution petitions
were just causes covered by the expression “defect of
jurisdiction” and in any case, “other cause of a like nature”,
ascribed by the Executing Court for its inability to grant relief
of possession of suit property to the plaintiff. The fact
situation of the present case would certainly satisfy the tests
specified in Section 14 of the 1963 Act, for showing indulgence
30
to the plaintiff to exclude the period during which the plaintiff
pursued execution proceedings for reckoning the period of
limitation for filing the suit for possession on 11th June, 1974.
The argument of the respondents that the plaintiff did not offer
any explanation for the period from 2nd February, 1974 till 11th
June, 1974 does not impress us at all. That period is only of
four months and once the period from 14th January, 1971 till
2nd February, 1974 was to be excluded as being time spent by
the plaintiff in pursuing other civil proceedings in good faith,
there would be no delay in filing of the suit. What is posited
by Section 14 of the 1963 Act is the exclusion of time of
proceeding bona fide in Court without jurisdiction or other
cause of a like nature, for which the concerned Court is
unable to entertain the lis. The fact that no explanation
whatsoever has been offered for the period from 2nd February,
1974 to 11th June, 1974, therefore, would not whittle down
the rights of the plaintiff to institute and pursue suit for
possession of the subject land on the basis of declaratory
decree.
31
24. That takes us to the last question as to whether Section
14 of the 1963 Act has any application to the case on hand.
This issue need not detain us. Section 5 of the 1920 Act is
explicit and it unambiguously postulates that the suit referred
to in the First Schedule to the said Act would be governed by
the provisions contained in Sections 4 to 25 (inclusive) of the
Limitation Act. Section 5 of the 1920 Act reads thus:
“5. Dismissal of suits of the descriptions specified in the
Act if instituted after the period of limitation therein
prescribed has expired.- Subject to the provision contained
in sections 4 to 25 (inclusive), of the Indian Limitation Act,
1908, and notwithstanding anything to the contrary
contained in the first schedule of the said Act, every suit, of
any description specified in the schedule annexed to this
Act, instituted after the period of limitation prescribed
therefor in the schedule shall be dismissed, although
limitation has not been set up as a defence.”
25. It may be apposite to also advert to Section 29(2) of the
1963 Act, the same reads thus:
“29. Savings.- (1) xxx
(2) Where any special or local law prescribes for any suit,
appeal or application a period of limitation different from the
period prescribed by the Schedule, the provisions of section
3 shall apply as if such period were the period prescribed by
the Schedule and for the purpose of determining any period
of limitation prescribed for any suit, appeal or application by
32
any special or local law, the provisions contained in sections
4 to 24 (inclusive) shall apply only in so far as, and to the
extent to which, they are not expressly excluded by such
special or local law.
(3) xxx
(4) xxx.”
26. We find force in the submission of the appellants that
Section 14 of the 1963 Act would be attracted in the fact
situation of the present case, in light of Section 5 of the 1920
Act and also Section 29(2) of the 1963 Act coupled with the
fact that there is no express provision in the 1920 Act, to
exclude the application of Section 14 of the 1963 Act.
27. Both sides have relied on the exposition in the case of
Consolidated Engineering Enterprises (supra). In that case,
the Court noted that Section 14 of the 1963 Act envisages that
it is a provision to afford protection to a litigant against bar of
limitation when he institutes a proceeding which by reason of
some technical defects cannot be decided on merits and is
dismissed. While considering the provisions of Section 16 and
its application, this Court observed that a proper approach will
have to be adopted and the provisions will have to be
33
interpreted so as to advance cause of action rather than abort
the proceedings, inasmuch as the section is intended to
provide relief against bar of limitation in cases of mistaken
remedy or selection of a wrong forum.
28. It is not necessary to dilate on this judgment any further,
having already observed that both the Trial Court and the
Appellate Court were right in decreeing the suit in favour of
the original plaintiff (predecessor of the appellants) by rejecting
the objection regarding the suit being barred by limitation. The
High Court committed manifest error in overturning the
decisions of the Trial Court and the First Appellate Court,
merely on the ground that the formal decree drawn on 19th
August, 1972 on the basis of compromise judgment dated 20th
August, 1963 must relate back to the date of the judgment i.e.
20th August, 1963 and would not arrest the limitation period
until the preparation of the decree on 19th August, 1972.
29. In view of the above, we allow this appeal and set aside
the impugned judgment and order and decree passed by the
High Court and instead, restore the judgment and decree
34
passed by the Trial Court as affirmed by the First Appellate
Court.
30. Accordingly, this appeal is allowed with no order as to
costs.
..……………………………...CJI.
(Dipak Misra)
…..…………………………..….J.
(A.M. Khanwilkar)
New Delhi;
March 28, 2018.
