-
HAMEED JOHARAN (D) AND ORS.
v.
ABDUL SALAM (D) BY LRS. AND ORS.
AUGUST 13, 2001
[A.P. MISRA AND UMESH C. BANERJEE, JJ.]
A
B
limitation Act, 1963-Article 136-Partition suit-Decree-Execution
of-limitation period of twelve years-Commencement of-Whether the time _
taken for furnishing stamp paper could be excluded for reckoning the period
of limitation-Held, period of limitation begins to run from the date when the C
final decree becomes enforceable and not from the date when it becomes
executable-Furnishing of stamp paper was an act entirely within the domain
and control of the decree holder and any delay therein cannot put a stop
on the period of limitation to run-Stamp Act, 1899, Section 35 and 2(15)-
. Interpretation of Statutes. D
Maxims:
'Vigilantibus non dormientibus jura subveniunt'-Applicability of
In a partition suit a preliminary decree for partition was passed on E
8.6.1969 and a final decree thereon was passed on 20.11.1970. The decree
holder did not furnish any stamp paper and so the decree was not drafted or
finalised. Subsequently, the original decree holder died and his legal
representatives were impleaded as parties. The legal representatives of the
decree holder filed an execution application on 21.5.1984 with engrossed·
stamp paper dated 26.3.1984. Trial court dis!Dissed the execution petition F
holding that since the same was filed beyond twelve years period, the same
was barred by limitation. On revision, High Court directed the trial court
to consider the question of limitation afresh. On remand, trial court held the
execution petition was not barred by limitation. Aggrieved, legal
representatives of the defendant filed a revision petition before the High G
Court which was allowed and ·the execution petition was dismissed. Hence the
present appeal by legal representatives of decree holder.
On behalf of appellant it was contended that the period of limitation
in respect of partition decree could not begin to run till it was engrossed on
requisite stamp paper because under Sections 35 and 2(15) of the Stamp Act, H
469
470 SUPREME COURT REPORTS [2001) SUPP. I S.C.R.
A 1899 such a decree was not enforceable in evidence unless duly stamped.
Dismissing the appeals, the Court
HELD: I.I. The limitation period ofl2 years prescribed under Article
136 of the Limitation Act, 1963 for execution of a partition decree began to
B run from the date when the final decree or order becomes enforceable and
not from the date when the decree becomes executable. (476-D; 478-Dl
1.2. Article 136 of the Limitation Act prescribes a period of 12 years
for execution of a decree other than a decree granting a mandatory injunction
or order of any Civil Court. The language used by the legislature in Article
C 136 if read in its proper pe_rspective to wit: 'when decree or order becomes
enforceable' must have been to clear up any confusion that ought Have arisen
by reason of the user of the expression the date of the decree or order which
was used in the earlier Act. The intention of the legislature stands clearly
exposed by the language used therein viz., to permit 12 years period from
the date of the decree or order. What is relevant for Article 136 is as to when
D the decree became enforceable and not when the decree became executable.
The requirement of the limitation Act in the matter of enforcement of a
decree is the date on which the decree becomes enforceable or capable of·
being enforced-what is required is to assess the legislative intent and· if the
intent appears to be otherwise clear and unambiguous, question of attributing
E a different meaning other than the literal meaning of the words used would
not arise. In the instant case, the final decree was passed on 20.11.1970 and
the execution petition was filed on 21.5.1984'with engrossed stamp paper
·dated 26.3.1984 which was clearly beyond the period of limitation.
F
(474-8; 476-H; 477-A, C; 478-D, F, BJ
Biswapati Dey v. Kennisington Stores and Ors., AIR (1972) Calcutta
172 and Subhash.Ganpairao Buty v. Maroti Krishnaji Dor/ikar, AIR (1975)
Dom 244, approved.
2. Furnishing of stamp paper was an act entirely within the domain and
control of the appellant and any delay in the matter offurnishing ~fthe same
G cannot possibly be said to be putting a stop to the period oflimitation being
run-no one can take advantage of his own wrong. The legislature cannot be
sub-servient to any personal whim or caprice. In any event, furnishing of
engrossed stamp paper for the drawing up of the decree cannot but be
ascr!bed to be a ministerial act, which cannot possibly put under suspension
H a legislative mandate. Suspension of the period of limitation can be had when
-
...
HAMEEDJOHARANv.ABDULSALAM 471
the decree is a conditional one in the sense that some extraneous events have A
to happen on the fulfilment of which ah;me the decree c~uld be executed. In
the instant case, since no conditions are attached to the decree and the same
has been passed declaring the shares of the parties finaliy, the question of
suspension of the period of limitation does not arise. (478-E, F, G; 488-F-G)
' Yeswant Deora(j·Deshmukh v. Walchand Ramchand Kothari, (1950( B
SCR 852, relied on.
3.1. Prescription of a twelve years period.cannot possibly be obliterated
by an enactment wholly unconnected therewith. Legislative mandate as
sanctioned under Article 136 cannot be kept in abeyance unless the ·self C
same legislation makes a provision therefore. It may also b.e noticed that by
the passing of a final decree, the rights stand crystallized and it is only
thereafter its enforceability can be had though not otherwise. Section 35 of
the Stamp Act 1899 lays down a bar in the matter of unstamped or insufficient
· stamp being admitted in evidence or being acted upon-but that does not
mean that the prescribed period shall remain suspended until the stamp D
paper is furnished and the partition decree is drawn thereon and subsequently
signed by the judge. The intent oT the legislature in engrafting the Limitation
Act shall have to be given its proper weightage. Absurdity cannot be .the
outcome of interpretation by a court order and wherever there is even a
possibility of such absurdity, it would be a plain exercise of judicial power E
to repel the same rather than encouraging it. The whole purport of the Indian
Stamp Act is to make available certain dues and to collect revenue but it. does
not mean and imply, overriding the effect over another statute operating on
a completely different sphere. (490-8, C, F, G; 491-A, Bl
W.B. Essential Commodities Supply Corporation v. Swadesh Agro F
·. Farming & Storage Pvt. Ltd. and An;.. (19991 8 SCC 315, relied on.
Shanka~ Ba/want Lokhande (dead) by Lrs. v. Chandrakant Shankar
Lokhande and Anr.; (19951 3 SCC 413, distinguished.
Kisbori Mahal Pal v. Provash Chandra Monda/ and-Ors. AIR (1924) G
Calcutta 351, approved.
Municipal Committee, Amritsar v. Hazara Singh, 1197511 SCC 794;
Mis. Amarnath Om Parkash and Ors. v. State of Punjab and Ors., (198511
SCC 345; Munidpal Corporation of Delhi v. Gurnam Kaur, 119891 1 SCC
101 and Dr. Vijay Laxmi Sadho v. Jagdish, 120011-2 sec 247, referred to. H
472 SUPREME COURT REPORTS [2001] SUPP. 1 S.C.R.
A Manby v. Bwicke 3K. & J. 342 at 352 and Rakhit v. Carty, L.R., (1990)
2 Q.B. 315, referred to.
3.2 The legislature while engrafting it is Limitation Act, 1963, it is
presumed and there being a golden canon of interpretation of statutes, had
B in its mind the existing Indian Stamp Act before engrafting the provisions
under Article 136. A latter statute obviously will have the effect of nullifying
an earlier statute in the event of there being any conflict provided however
and in the event there is otherwise legislative competency in regard thereto.
Enforceability of the decree cannot be the subject matter of S.35 neither the
limitation can be said to be under suspension. The heading of the Section
C viz., "Instrument not duly stamped inadmissible in evidence etc." itself
denotes its sphere of applicability : it has no relation with the commencement
·of period of limitation. 'Executability' and 'enforceability' are two different
concepts having two specific connotations in legal parlance. They cannot be
termed as synonymous; nor they an be attributed one and the same meaning.
Significantly, the final partition decree, whenever it is drawn bears the date
D of the decree when the same was pronounced by the court and not when it
stands engrossed on a stamp paper and signed by the judge. The decree may
not be received in evidence nor it can be acted upon but the period of
limitation cannot be said to remain under suspension at the volition and
mercy of the litigant. Limitation starts by reason of the statutory provisions
E as prescribed in the Statute. Time does not stop running at the instance of
any individual unless, of course the same has a statutory sanction being
conditional. Thus, it cannot be accepted that Section 35 read with Section
2(15) of the Stamp Act would over-run the Limitation Act 1491-D-H; 492-AI
Bholanath Karmakar and Ors. v. Madanmohan Karmakar, AIR (1988)
F Calcutta I, overruled.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 9876 of
1995.
From the Judgment and Order dated 25.11.1994 of the Madras High
G Court in C.R.P. No. 1897 of 1989.
K.K. Mani, K.V. Vishwanathan, K.V. Venkataraman, Atul Kr. Sinha, Kunwar
Ajit Mohan, Ms. Vijayalakshmi Menon and S. Muralidhar for the appearing
parties.
H The Judgment of the Court was delivered by
HAMEED JOHARAN v. ABDUL SALAM [BANERJEE, J.) 473
BANERJEE. J. Availability of the plea of limitation in the matter of A
execution of decree has been the key issue in this appeal. The word 'execution'
stands derived from the Latin "ex sequi," meaning, to follow out, follow to
the end, or perform, and eq\livalent to the French executor", so that, when
used in their proper sense, all three convey the meaning of carrying out some
act or course of conduct to its completion (vide vol. 33-Corpus Juris Scundum). B
Lord Denning in Re Overseas Aviation Engineering (G.B) Ltd. : (L.R.
1963 : Ch. 24) has attributed a meaning to the word 'execution' as the process
for enforcing or giving effect to the judgment of the court and stated :
"The word "execution" is not defined in the Act. It is, of course, a
word familiar to lawyers. "Execution" means, quite simply, the process C
for enforcing or giving effect to the judgment of the court : and it is
"completed" when the judgment creditor gets the money or other
thing awarded to him by the judgment. That this is the meaning is
seen by reference to that valuable old book Rastill Termes de la Ley,
where it is stated : "Execution is, "where Judgment is given in any D
Action, that the plaintiff shall "recover the land, debt, or damages, as
the case is; and when any "Writ is awarded to put him in Possession,
or to do any other "thing whereby the plaintiff should the better be
satisfied his debt "or damages, that is called a writ of execution; and
when he hath "the possession of the land, or is paid the debt or
damages, or "hath the body of defendant awarded to prison, then he E
hath "execution." And the same meaning is to be found in Blackman
v. Fysh, [(1892) 3 Ch. 209, 217, C.A], when Kekewich. J. said that
execution means the "process of law for the enforcement of a judgment
creditor's right "and in order to give effect to that right." In cases
when execution was had by means of a common law writ, such as fieri
facias or elegit, it was legal execution : when it was had by means of F
an equitable remedy, such as the appointment of a receiver, then it
was equitable execution. But in either case it was "execution" because
it was the process for enforcing or giving effect to the judg111ent of
the court."
Before adverting to factual aspect of the matter, a brief re-capitulation
of the various periods of limitation as prescribed under the Limitation Act as
engrafted in the Statute Book from time to time would be convenient. Law of
Limitation in India, as a matter of fact, was introduced for the first time in 1859
being revised in 1871, 1877 and it is only thereafter, the Limitation Act of 1908
G
was enacted and was in force for more than half a century till replaced by the H
474 SUPREME COURT REPORTS [2001) SUPP. I S.C.R.
A present Act of 1963 (see in this context B.B. Mitra : the Limitation Act 20th
Ed).
Presently, Article 136 of the Limitation Act 1963, prescribes a period of
twelve years for the execution of a decree other than a decree granting a
mandatory injunction or order of any civil court. As regards the time from
B which the period of twelve years ought to commence, the statute has been
rather specific in recording that the period would commence from the date of
the decree or order when the same becomes enforceable. We need not go into
the other situations as envisaged in the statute for the present purpose, save
what is noticed above. To put it shortly, it therefore, appears that a twelve
year period certain has been the legislative choice in the matter of execution
C of a decree. Be it noted that corresponding provisions in the Act of 1908 were
in Articles 182 and 183 and as regards the statute of 1871 and 1877, the
corresponding provisions were contained in Articles 167, 168, 169, and 179,
180 respectively. Significantly, Article 182 of the Limitation Act of 1908 provided
a period of three years for the execution of decree. Be it clarified that since
.D the reference to the 1908 Act would be merely academic, we refrain ourselves
from_ recording the details pertaining to Article 182 save what is noted
hereinbefore. It is in this context, however, the Report of the Law Commission
on the Act of 1963 assumes some importance, as regards the question of
limitation and true purport of Article 136. Before elaborating any further, it
would be convenient to note the Report of the Law Commission which reads
E as below:
F
G
H
"170. Article 182 has been a very fruitful source of litigation and is
a weapon in the hands of both the dishonest decree-holder and the
dishonest judgment debtor. It has given rise to innumerable decisions.
The commentary in Rustomji's Limitation Act (5th Edn.) on this article
itself covers nearly 200 pages. In our opinion the maximum period of
limitation for the execution of a· decree or order of any civil court
should be 12 years from the date when the decree or· order became
.enforceable (which is usually the date of decree) or where the decree
or subsequent order directs any payment of money or the delivery of
any property to be made at a certain date or at recurring periods, the
date of the default.iilmaking the payment or delivery in respect of
which the applicant seeks to execute the dearee. There is, therefore,
no need for a provision compelling the decree-holder to keep the
· decree alive by making an. application every three years. There exists
a provision already in section 48 of the Civil Procedure Code that a,
decree ceases to be enforceable after a period of 12 years. In England
HAMEED JOHARAN v. ABDUL SALAM [BANERJEE, J.] 475
also, the time fixed for enforcing a judgment is 12 years. Either the A
decree-holder succeeds in realising his decree within this period or he
fails and there should be no provision enabling the execution of a
decree after that period. To this provision an exception will have to
be made to the effect that the court may order the execution of a
decree upon an application presented after the expiration of the period B
of 12 years, where the judgment-debtor has, by fraud or force,
prevented the execution of the decree at some time within the twelve
years immediately preceding the date of the application. Section 48 of .. the Civil Procedure Code may be deleted and its provisions may be
incorporated in this Act. Article 183 should be deleted .... "
In pursuance of the aforesaid recommendation, the present article
has enacted in place of articles 182 and 183 of the 1908 Act. Section
48, Code of Civil Procedure 1908 has bc;en repealed".
The material facts pertaining to the issue however may be delved into
c
at this juncture. D
The factual score records that a prelim.inary decree for partition was
passed on 8.6.1-969 and a final decree thereon was passed on 20.11.1970. Th.e
suit being a suit for partition, the parties were under an obligation to furnish
the stamp paper for drafting of the final decre~ and ·it is on 28.2.1972, the
District Court. Nagapattinam_ in~ th:e erstwhile State of Madras (presently E
Chennai issued notice to the parties to furnish stamp papers and granting
time till 17.3.1972. The records depict th.at the decree-holder, in fact, did not
furnish any stamp paper by reason where for, no decree was draf!ed or
finalised. The factual score further records that the original decree-holder died
on 17.l.ln7 and it is on 26:7.1983 that an application was filed by the legal· F
-representatives of the decree-holder to implead themselves as additional
plaintiffs and on 23'.i_. 1984, the same was ordered and the legal representatives
of the original plaintiff were imp leaded on 8.3.1984 and after incorporation of
the names of the legal heirs in the suit register, an execution application w.as
presented before the District Court on 21.5.1984.
To have the factual score complete on this couRt, be it noted that in
the meanwhile a Civil Revision Petition was filed before the High Cou,rt (C.R.P.
No.2374 of 1984) against the order of impleadment but the sa~e however, was ·
dismissed on 8.10.1984.
G
The records depict that on I Ith December, 1984, the execution petition H.
476 SUPREME COURT REPORTS [2001] SUPP. I S.C.R.
A was dismissed with a finding that since the same was filed beyond twelve
years, the execution petition was barred by limitation. Subsequently, a Revision
Petition was filed against said order (C.R.P. No. 2000 of 1985) and on 10.3.1989,
the High Court however did set aside the order of the executing court and
directed ~hat the question of limitation should be considered afresh, The
records further depict that on 13th July, 1989, the District Court held that the
B Execution Petition is not barred by limitation. As against the order of the
District Court dated 13th July, 1989, a Revision Petition was filed before the
High Court. by the legal heirs of the first defendant challenging the said
finding and the learned Single Judge of the High Court in a very detailed and
elaborate judgment allowed the Civil Revision Petition and set aside the order
C of the district court. Consequently, the execution petition also stood dismissed
and hence the Special Leave Petition before this Court and the subsequent
grant of leave by this Court.
As noticed earlier in this judgment, Article 136 of the Limitation Act
1963 being the governing statutory provision, prescribes a period of twelve
D years when the decree or order becomes enforceable. The word enforce in
common acceptation means and implies 'compel observance of (vide Concise
Oxford Dictionary) and the Black's Law Dictionary 'enforce' has been attributed
a meaning 'to give force or effect to; to compel obedience to' and 'enforcement
has been defined as 'the act or process of compelling compliance with a law,
E mandate or command'. In ordinary parlance 'enforce' means and implies 'compel
observance'. Corpus Juris Secundum attributes the following for the ·word
'enforce'.
"ENFORCE. In general, to cause to be executed or performed, to cause
to take effect, or to compel obedience to, as to enforce laws or rules; to
F control; to, execute with vigor; to put in execution; to put in force; also to
exact, or to obtain authoritatively. The word is used in a multiplicity of ways
and is given many shades of meaning and applicability, but it does not
riecessarily imply actual force or coercion. As applied to process, the term
implies execution and embraces all the legal means of collecting a judgment,
including proceedings supplemental to execution.
G
The past tense or past participle "enforced" has been said to have the
same primary meaning as "compelled".
The language used by the legislature in Article 136 if read in its proper
perspective to wit : when the decree or order becomes enforceable must have
H been to clear up any confusion that might have arisen by reason of the user
HAMEED JOHARAN v. ABDUL SALAM [BANERJEE, J.) 477
of the expression 'the d~.te of the decree or order which was used in the earlier A
Act. The intention of the legislature stands clearly exposed by the language
used therein viz., to permit twelve year certain period from the date of the
decree or order. It is in this context that a decision of the Calcutta High Court
in the case of Biswapati Dev v. Kennsington Stores and Ors., AIR (1972)
Calcutta 172) wherein the learned Single Judge in no uncertain terms expressed
his opinion that there cannot be any ambiguity in the language used in the B
third column and the words used therein to wit : 'when the decree or order
becomes enforceable' should be read in their literal sense. 'We do feel it
expedient to lend our concurrence to such an observation of the learned
.Single Judge of the Calcutta High Court. The requirement of the Limitation
Act in the matter of enforcement of a decree is the date on which the decree ·C
becomes enforceable or capable of being enforced-what is required is to
assess the legislative intent and if the intent appears to be otherwise clear
and unambiguous, question of attributing a different meaning other than the
literal meaning of the words used would not arise. It is in this context, we also
do feel it inclined to record our concurrence to the observations of the full
Bench of the Bombay High Court in Subhash Ganpatrao Buty v. Maroti
Krishnaji Dorlikar, AIR (1975) Born. 244. The Full Bench in the decision
observed :
" ...... it is the duty of the Court to interpret the language actually
D
employed and to determine the intention of the legislature from such E
language and since there is no ambiguity about the language actually
employed, neither the recommendation of the Law Commission nor the
aims and object as set out in the Statement of Objects and reasons
can be brought in aid or can be allowed to influence the natural and
grammatical meaning of the Explanation as enacted by the Parliament".
Adverting however, to the merits of the matter at this juncture and for
consideration of the applicability of Article 136 in the way as stands interpreted
above, a short recapitulation of ce1tain relevant dates seems to be inevitable
and as such the same is set out herein below :
Date
8th June, 1969
20th November, 1970
Event
The preliminary decree passed in the
partition suit.
Final de.cree passed upon acceptance of ·
F
G
the report of the Commission. H
478 SUPREME COURT REPORTS [2001] SUPP. I S.C.R.
A 28th February, 1972 Notice to furnish stamp paper on or
before 17.3 .1972 (be it nqted that no
stamp paper, in fact, was furnished).
17th January, 1977
B 8th March, 1'984
21st May, 1984
Original decree-holder died.
Legal representatives were impleaded.
Execution petition filed with the
engrossed stamp paper furnished on
16.3.1984.
C Probably one could avoid reference to a list of dates in the judgment,
but the same has been incorporated by reason of the peculiar fact-situation
of the appeal under consideration.
Article 136 of the Act of 1963 prescribes as noticed above, a twelve
years period certain and what is relevant for Article 136 is, as to when the
D decree became enforceable and not when the decree became executable. The
decision of the Calcutta High Court in Biswapati's case (supra) has dealt with
the issue very succinctly and laid down that the word 'enforceabie• should
be read in its literal sense. In the contextual facts, the final decree upon
acceptance of the report of the Commissioner was passed on 20.11.1970, while
E it is true that notice to furnish stamp pa:per was issued on 28.2.1972 and the
time granted was up to 17.3.1972 but that by itself will not take it out of the
purview of Article 136 as regards the enforceability of the decree. Furnishing
of stamped paper was an act entirely within the domain and control of the
appellant and any delay in the matter of furnishing of the same cannot
possibly be said to be putting a stop to the period of limitation being runF no one can take advantage of his own wrong : As a matter of fact, in the
contextual facts no stamp paper was filed until 26.3.1984-Does that mean
and imply that the period of limitation as prescribed under Article 136 stands
extended for a period of twelve years from 26th March, 1984? The answer if
it be stated to be in the affirmative, would lead to an utter absurdity and a
G mockery of the provisions of the statute. Suspension of the period of limitation
by reason of one's own failure cannot but be said to be a fallacious argument:
though however suspension can be had when the decree is a conditional one
in the sense that some extraneous events have to happen on the fulfillment
of which alone it could be enforced-furnishing of stamped paper was entirely
in the domain and power of the decree-holder and there was nothing to
H prevent him from acting in terms therewith and thus it cannot but be said that
' J
_,.
HAMEED JOHARAN v. ABDUL SALAM [BANERJEE, J.] 479
the dercee was capable of being enforced on and from 20th November, J-970 A
and the twelve years period ought to be counted therefrom. It is more or less
in identical situation, this Court even five-decades ago· in the case of Yeswant
Deorao Deshmu~h v. Walchmd Ramchand Kothari, [1950] SCR 852 has
stated :
"The decree was not a· conditional one in the sense that some B
extaneous event was to happen on the fulfilment of which alone it
could be executed. The payment of court fees on the amount found
due was entirely in the power of the decree-holder and there was
nothing to prevent him from paying it then and there; it w~s a decree
capable of execution from the very date it was passed. C
Needless to record that engrossment of stamped paper would
undoubtedly render the decree executable but that does not mean and imply
however, that the enforceability of the decree would remain suspended until
furnishing of the stamped paper-this is opposed to the fundamental principle
of which the statutes of limitation are founded. It cannot, but be the general D
policy of our law to use the legal diligence and this has been the consistent
legal theory from the ancient times. Even the doctrine. of prescription in
Roman Law prescribes such a concept of legal diligence and since its
incorporation therein, the docfrine has always been favoured rather than
claiming dis-favour. Law courts never tolerate an indolent litigant since delay
defeats equity. The Latin maxim 'vigilantibus non dormientibus jure subventiunt' E
(law assists those who are vigilant and not those who are indolent). As a
matter of fact, lapse of time is a species for forfeiture of right. Wood, V.C. in
Manby v. Bewicke, (3 K. & J. 342 at 352) stated :
" ... the legislature has in this, as in every civilized country that has
ever existed, thought fit to prescribe certain limitations of time, after F
which persons may suppose themselves to be in peaceful possession
of their property and capable of transmitting the estates of which they
are in possession, without any apprehension of the title being
impugned by litigation in respect of transactions which occurred at a
distant period, when evidence in support. of their own title may be G
most difficult to obtain."
Recently this Court in WB. Essential Commodities Supply Corporation
v. Swadesh Agro Farming and Storage Pvt. ltd. and Anr., [1999) 8 SCC 315
had the occasion to consider the question of limitation under Article 136 of
'the Limitation Act of 1963 and upon consideration of the decision in the case H
480 SUPREME COURT REPORTS [2001] SUPP. I S.C.R.
A of Yeshwant Deorao, (supra) held that under the scheme of the Limitation
Act, execution applications like plaints have to be presented in court within
the time prescribed by the Limitation Act. A decree-holder, this court went
on to record does not have the benefit of exclusion of the time taken for
obtaining even the certified copy of the decree like the appellant who prefers
B an appeal, much less can he claim to deduct time taken by the court in
drawing up and signing the decree. In fine, this Court observed that if the
time is reckoned not from the date of the decree but from the date when it
c
is prepared, it would amount to doing violence to the provisions of the
Limitation Act as well as of Order 20 and Order 2 I Rule I I C.P.C. which is
clearly impermissible.
The observations thus in W.B. Essential Commodities Supply Corpn.
(supra) lends concurrence to the view expressed above pertaining to the
question of enforceability of the decree as laid down in Article I 36 of the
Limitation Act.
D Incidentally, in paragraph I2 of the judgment in W.B. Essential
Commodities Supply Corpn. (supra), this Court listed out three several
situations in which a decree may not be enforceable on the date it is passed
and in last of the situations, this Court observed :
E
F
"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 nonjudicial 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 Ba/want
lokhande (dead) by Lrs. v. Chandrakant Shankar Lokhande and
Anr., [I 995] 3 SCC 413 have to be understood. These observations do
not apply to a money decree and, therefore, the appellant can derive
no b~nefit from them".
The third situation, as referred above, has been taken note of, by reason
G of the decision of this Court in the case of Shankar Ba/want Lokhande
(dead) by LRs. v. Chandrakant Shankar Lokhande and Anr., [I995] 3 SCC
4 I3 wherein Ramaswamy, J. speaking for the Bench came to a conclusion that:
H
" ..... After final decree is passed and a direction is issued to pay
stamped papers for engrossing final decree thereon and the same is
duly engrossed on stamped paper(s), it becomes executable or becomes
HAMEED JOHARAN v. ABDUL SALAM [BANERJEE, J.) 481
an instrument duly stamped. Thus, condition precedent is to draw up A
a final decree and then to engross it on stamped paper(s) of required
value. There two acts together constitute final decree crystallizing the
rights of the parties in terms of the preliminary decree. Till then, there
is no executable decree as envisaged in Order 20, rule 18 (2), attracting
residuary Article 182 of the old Limitation Act."
Be it noticed that lokhande's d.ecision (supra) was decided against the
judgment of the High Court recording a finding that limitation for executing
a final decree in a suit for partition starts on the date on which the final decree
B
is passed and not from any subsequent date on which the parties supply the
non-judicial stamp for engrossing the final decree and when the court C
engrosses the final decree on the stamp paper and signs it - this view of the
High Court was negatived and this Court came to a contra conclusion as
noticed hereinbefore .
. The W.B. Essential Commodities Supply Corpn. 's decision (supra) has
been rather cautious in recording certain situations in which a decree may not D
be enforceable on the date it is passed (emphasis supplied). It is thus not a
pronouncement of law as such but an exception recorded in certain situations,
the words 'may not be' as emphasised are rather significant. The word 'May'
in common acceptation mean and imply-'a possibility' depicting thereby
availability of some fluidity and thus not conclusive. This aspect of the matter E
is required to be clarified by reason of the observations as laid down in the
third situation (noticed above}--Needless to record that the third situation
spoken of by this Court in the decision last noted obviously by reason of
the judgment of this Court in lokhande's case (supra). The factual situation
of Shankar B. lokhande's case (supra) however is completely different since
there was no final decree at all but only a preliminary decree. Paragraph I 0 F
of the report at page 419 makes the situation amply clear. Paragraph I 0 reads
as below:
"I 0. As found earlier, no executable final decree has been drawn
working out the rights of the parties dividing the properties in terms G
of the shares declared in the preliminary decree. The preliminary· ·
decree had only declared the shares of the parties and properties were
liable to be partitioned in accordance with those shares by a
Commissioner to be appointed in this behalf. Admittedly, no
Commissioner was appointed and no final decree had been passed
relating to all." H
482 SUPREME COURT REPORTS [2001] SUPP. 1 S.C.R.
A Another significant feature which would render the decision inapplicable
in the contextual facts is the consideration of the matter in the perspective
of the 1908 Act (the old Act) and not the Limitation Act of 1963. The language
of Article 136 is clear, categorical and unambiguous and it is the difficulty
experienced in the matter of interpretation of Article 182 "which has been a
B very fruitful source oflitigation", promoted incorporation of Article 136 in the
Statute Book. The recommendation of the Law Commission in the matter of
incorporation of Article 136 thus assumes a positive and a definite role.
Twelve year period certain has been the express opinion of the Commission
and by reason therefore Section 48 of the Code stands deleted from the main
body of the sections, which incidentlly provided for a twelve year period
C certain for execution proceedings.
D
E
F
In this context, a further reference can be had from Mulla's Civil
Procedure Code. As regards Section 48 the following is said in Mulla's C.P.
Code:
"This Section has been repealed by Section 28 of the Limitation Act,
36of1963. In its place a new provision, Article 136, has been introduced
which prescribes "for the execution of any decree (other than a decree
granting a mandatory injunction) or order of any civil court" a period
of twelve years "where the decree or order becomes enforceable or
where the decree or any subsequent order directs any payment of
money or the delivery of any property to be made at a certain date
or at recurrent periods, when default in making the payment or delivery
in respect of which execution takes place :
Provided that an application for the enforcement or execution of a
decree granting a perpetual injunction shall not be subject to any
period of limitation."
The period of twelve years prescribed by Section 48 is retained under
Article 136 and is now the only period of limitation. It is therefore no
longer necessary to keep the execution alive by successive applicants
within three years for complying with the original Article 182."
G Significantly, the contextual facts itself in lokhande's case (supra) has
prompted this Court to pass the order as it has (noticed above) and as would
appear from the recording in the order, to wit : "Therefore, executing court
cannot receive the preliminary decree unless final decree is passed as envisaged
under Order 20 Rule 18 (2)."
H In that view of the matter, reliance on the decision of lokhande's case
. i
'
HAMEED JOHARAN v. ABDUL SALAM [BANERJEE, J.] 483
(supra) by Mr. Mani appearing for the appellants herein cannot thus but be A
said to be totally misplaced, more so by reason of the fact that the issue
pertaining to furnishing of stamp paper and subsequent engrossment of the
final decree thereon did not fall for consideration neither the observations
contained in the judgment could be said to be germane to the issue involved
therein. The factual score as noticed in paragraph I 0 of the Report, [1995] 3 B
SCC 413 makes the situation clear enough to indicate that the Court was not
called upon to adjudicate the issue as raised presently. The observations thus
cannot, with due deference to the learned Judge, but be termed to be an obiter
dictum.
It is in this context that we rather feel it inclined to record the observation C
of Russel l.J. in Rakhit v. Carty, (L.R. 1990 2 Q.B. 315) wherein at page 326/
327 of the report it has been observed :
"Miss Foggin has now submitted to this court that the decision in
Kent's case was indeed per incuriam if! that she submits that the
judgment ofOrmrod L.J. with which Dunn L.J. and and Sir Sebag Shaw O
agreed, made no reference to section 67 (3), that, if the Court of
Appeal had been referred to that subsection and had had regard to
its terms, the decision would plainly have been different and that
consequently this court should not follow Kent's case. I have already
expressed my own views as to the proper constitution of section 44( I)
and the impact of section 67 (3). E
In Rickards v. Rickards, (1990] Fam. 194, 203 Lord Donaldson of
Lymington M.R. said :
"The importance of the rule c;if state decisis in relation to the Court
of Appeal's own decisions can hardly be overstated. We now F
sometimes sit in eight divisions and, in the absence of such a rule,
the law would quickly become wholly uncertain. However the rule is
not without exceptions, albeit very limited. These exceptions were
considered in Young v. Bristol Aeroplane Co. ltd., [1944] K.B. 718:
Morelle ltd v. Wakeling, (1955] 2 Q.B. 379 and more recently, in· G
Williams v. Fawett, (1986] Q.B. 604, relevant extracts from the two
earlier decisions being set out at pp. 615-616 of the report. These
decisions show that this court is justified in refusing to follow one of
its own previous decisions to not only where that decision is given
in ignorance or forgetfulness of some authority binding upon it, but
also, in rare and exceptional cases, if it is satisfied that the decision H
A
B
.C
D
484 SUPREME COURT REPORTS [2001) SUPP. I S.C.R.
involved a manifest slip or error. In previous cases the judges of this
court have always refrained from defining this exceptional category
and I have no intention of departing from that approach save to echo
the words of Lord Greene M.R. in Young's case, p.729, and Sir
Raymond Evershed M.R. in Morelle's case, p. 406, and to say they
will be of the rarest occurrence.
In- my jadgment, the effect of allowing this appeal will produce no
injustice to the plaintiff, for the Rent Act 1977 provided him and his
advisers with ample opportunity to protect his interests by the simple
process of inspecting the public register of rents before letting the flat
to the defendant. A fresh application for registration or a fair rent
could then have been made enabling that fair rent to be recoverable
from the commencement of the defandant's tenancy.
For my part, I am satisfied that this court erred in Kent v. Mil/mead
Properties Ltd, 44 p & C.R. 353 and that, following the observations
of Lord Donaldson of Lymington M.R. in Rickards' case, this court •
is justified in declining to follow Kent's case.
As a matter of fact, a three Judge Bench of this Court in the case of
Municipal Committee, Amritsar v. Hazara Singh, [1975] I SCC 794 has been
E pleased to record that on facts, no two cases could be similar and the decision
of the court which was essentially on question of facts could not be relied
upon as precedent, for decision of the other cases. Presently the fact situation
in the decision of Lokhande (supra) and the matter under consideration are
completely different, as such the decision in lokhande cannot by any stretch
be termed to be a binding precedent. Jn Mis. Amarnath Om Prakas_h and Ors.
F v. State of Punjab & Ors., [1985] I SCC 345, a three Judges bench of this
Court in no uncertain terms stated :
G
H
" ... We consider it proper to say, as we have already said in other
cases, that judgments of courts are not to be construed as statutes.
To interpret words, phrases and provisions of a statute, it may become
necessary for Judges to embark into lengthy discussions but the
discussion is meant to explain and not to define. Judges interpret
statutes, they do not interpret judgments. They interpret words of
statutes their words are not to be interpreted as statutes. In London
Graving Dock Co. ltd v. Horton, ( 1951 AC 737-761 ), lord MacDermott
observed :
'
HAMEED JOI-IARAN v. ABDUL SALAM [BANERJEE, J.] 485
The matter cannot, of course, be settled merely by treating the ipsissima A
verba of Wills. J., as though they were part of an Act of Parliament
and applying the rules of interpretation appropriate thereto. This is
not to detract from the great weight to be given to the language
actually used by that most distinguished Judge, ....
In Home Office v. Dorset Yacht Co. Ltd, (1970) 2 All ER 294 Lord Reid B
said :
Lord Atkin's speech (Donoghue v. Stevension; 1932 All ER Rep l,
11 ) .... is not to be treated as if it was a statutory definition. It will
require qualification in new circumstances.
Megarry, J. in (1971) !WLR 1062 observed:
One must not, of course, construe even a reserved judgment of even
Russell, L.J. as if it were an Act of Parliament.
c
And, in Herrington v. British Railways Board [(1972) 2 WLR 537], D
Lord Morris said :
There is always peril in treating the words of a speech or a judgment
as though they were words in a le.gislative enae;tment and it is to be
remembered that judicial utterances are made in the setting of the
facts of a particular case." E
Further in Municipal Corporation of Delhi v. Gurnam Kaur, [1989] I
SCC 10 I, this Court in Paragraph 11 of the report observed,
"I I. Pronouncements oflaw, which are not part of the ratio decidendi
are classed as obiter dicta and are not authoritative. With all respect F
to learned Judge who passed the order in Jamna Das case (Writ .
Petition Nos. 981-82 of 1984) and to the learned Judge who agreed
with him, we cannot concede that this Court is bound to follow it. It
was delivered without argument, )¥ithout reference to the relevant
provisions of the Act conferring express power on the Municipal G
Corporation to direct removal of encroachments from any public place
like payments or public streets, and without any citation of authority.
Accordingly, we do no.t propose to uphold the decision of the High
Court because, it seems to us that it is wrong in principle and cannot
be justified by the terms of the relevant provisions. A decision should
be treated as given per incuriam when it is given in ignorance of the H
A
B
c
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486 SUPREME COURT REPORTS [2001] SUPP. I S.C.R.
terms of a statute or of a rule having the force of a statute. So far as
the order shows, no argument was addressed to the court on the
question whether or not any direction could properly be made
compelling the Municipal Corporation to construct a stall at a pitching
site of a payment squatter. Professor P.J. Fitzgerald, editor of the
Salmond on Jurisprudence, 12th Edn. Explains the concept of sub
si/entio at p. 153 in these words :
A decision passes sub silentio, in the technical sense that has
come to be attached to that phrase. When the particular point of law
involved in the decision is not perceived by the court or present to
its mind. The court may consciously decide in favour of one party
because of point A, which it considers and pronounces upon. It may
be shown, however, that logically the court should not have decided
in favour of the particular party unless it also decided point B in his
favour : but point B was not argued or considered by the court. In
such circumstances, although the case had a specific outcome, the
decision is not an authority on point B. Point B is said to pass sub
silentio."
In one of its latest judgment however this Court in Dr. Vijay laxmi
Sadho v. Jagdish, [2001] 2 SCC 247, though apparently sounded a contra note
but the safeguards introduced therein, does not however create any problem
E for a decision in the matter under consideration. Anand, C.J. while deprecating
the characterisation of earlier judgment as 'per incuriam' on ground of dissent
observed :
F
"that a Bench of coordinate jurisdiction ought not to record its
disagreement with another Bench on a question of law and it would
be rather appropriate to refer the matter to a larger Bench for resolution
of the issue."
Anand, C.J. however, has been extremely careful and cautious enough to
record "it is appropriate that the matter be referred to a larger Bench for
G resolution of the issue rather than to leave two conflicting judgments to
operate creating confusion" (emphasis supplied).
Jn the contextual facts, the question of there being a conflictingjudgment
as indicated hereinbefore or creation of any confusion does not and cannot
arise by reason of the fact that the observations in lokhande (supra) were
H the peculiar set of facts under the Limitation Act of 1908 - no Commissioner's
.. HAMEED JOHARAN v. ABDUL SALAM [BANERJEE, J.] 487
report was available, neither any final decree passed, as such the issue before A
the court was completely different having regard to the factual state of the
matter.
The decision has thus no manner of application in the contextual facts
neither the decision of this Court in W.B.Essential Commodities supply Corpn.,
(supra) be of any assistance since there was no expression of law but a mere B
expression of a possibility only, as such at best be termed to be an expression
of opinion incidently. The latter decision thus also does not render any
assistance to the submission of Mr. Mani rather lends credence to the
observations of this Court as noticed hereinbefore.
Incidentlly, the Calcutta High Court in one of its very old decision in C
the case of Kishori Mohan Pal v. Provash Chandra Monda/ and Ors., AIR
(1924) Calcutta 351 while interpreting Article 182 under the Limitation Act of
1908 has been rather categorical in recording that the date of the decree under
the Article is the day on which the judgment is pronounced and limitation
begins to run from that day although no formal decree can be drawn up in D
a partition suit until paper bearing a proper stamp under Article 45 of the
Stamp Act is supplied to the Court. Richardson, J. with his usual felicity of
expression stated as below :
"In this Court the learned Vakil for the respondents has said all that
could be said for his clients. He has in particular called our attention E
to the fact that, although the decree is dated the 25th March 1914, it
is expressed to be "passed in terms of Commissioner's report dated
the 27th June 1914 which and the map filed along with it do form parts
of the decree." The 25th March 1914 is, nevertheless, the correct date
of the decree because that is the day on which the judgment was
pronounced (order 20, rule 7, Civ. Pro. Code). The report of the F
Commissioner appointed to make the partition had already been
received, the report was adopted by the judgment subject to certain
variations and, in connection with those variations, certain direc!,jons
of a ministerial character were given to the Commissioner which the
Commissioner had merely to obey. The order sheet shows that the G
Commissioner submitted a report on the 27th June 1914. That report
has not been placed before us. But 1 have no doubt that it did no more
than state that the Commissioner had done what he was directed to
do by the judgment of the 25th March 1914. That judgment was the
final judgment in -the suit and it was so regarded by the Subordinate
Judge who delivered it. The decree is in accordance therewith. The H
488
A
B
c
D
SUPREME COURT REPORTS (2001] SUPP. I S.C.R.
directions in the judgment were sufficient to indicate how the decree
should be framed, and there was no need of any further judgment.
The delay in signing the decree was due not to any fault of the
Court or to any cause beyond the control of the parties but solely to
the delay of the parties in supplying the requisite stamped paper. Any
party desiring to have the decree executed might have furnished the
stamped paper at any time leaving the expense of providing it to be
adjusted by the Court in connection with the costs of the execution.
The circumstances disclose no ground for saying that limitation
did not run from the date of the decree as provided by article 182 of
the Limitation Act, and if authority be needed, reference may be made
to Go/am Gaffar Manda/ v. Go/ijan Bibi, (1898) 25 Cal. 109 and
Bhajan Behari Shaha v. Girish Chandra Shaha, (1913) 17 C.W.N. 959.
I may add that much time and labour would be saved if the court
would resist such attempts as the present to go behind the plain
words of a positive enactment."
Though several other old and very old decisions were cited but in view
of the pronouncement lately by th is Court and as discussed herein before,
we are not inclined to deal with the same in extenso, save however recording
that contra view recorded earlier by different High Courts cannot be termed
E to be good law any longer.
The decision in Lokhande's case (supra) cannot but be said to be on
the special facts situation and is thus in any event clearly distinguishable.
Be it noted that the legislature cannot be sub-servant to any personal
F whim or caprice. In any event, furnishing of engrossed stamp paper for the
drawing up of the decree cannot but· be ascribed to be a minist~rial act, which
cannot possibly put under suspension a legislative mandate. Since no
conditions are attached to the decree and the same has been passed declaring
the shares of the parties finally, the Court is not required to deal with the
matter any further - what has to be done - has been done. The test thus
G should be - Has the court left out something for being adjudicated at a later
point of time or is the decree contingent upon the happening of an event .-
i.e. to say the Court by its own order postpones the enforceability of the order
- In the event of there being no postponement by a specific order of Court,
there being a suspension of the decree being µnenforceable would not arise.
H As a matter of fact, the very definition of decree in Section 2(2) ofC.P. Code
l (l
• I
..
HAMEED JOHARAN v. ABDUL SALAM [BANERJEE, J.) 489
lends credence to the observations as above since the term is meant to be A
'conclusive determination of the rights of the parties.'
On the next count Mr. Mani in support of the appeal very strongly
contended that question as to when a decree for partition becomes enforceable
cannot be decided in any .event without reference to relevant provisions of
Stamp Act, since a decree for partition is also an instrument of partition in B
terms of Section 2 (15) of the Indian Stamp Act 1899. For convenience sake,
Section 2 (15) reads as below :
"2 Definitions-in this Act, unless there is something repugnant in
the subject or context-
/
15. "Instrument of partition" means any instrument whereby co-owners
of any property divide or agree to divide such property in severalty,
and includes also a final order for effecting a partition passed by any
revenue-authority or any Civil Court and an award by an arbitrator
directing a partition."
At the first blush, the submissions seem to be very attractive having
substantial force but on a closer scrutiny of the Act read with the Limitation
Act, the same however pales into insignificance. Before detailing out the
submissions of Mr. Mani on the second count pertaining to the Stamp Act
c
D
we ought to note Section 35 of the Stamp Act at this juncture. Section 35 E
records that "no instrument chargeable with duty shall be admitted in evidence
for any purpose by any person having by law or consent of parties authority
to receive evidence, or shall be acted upon, registered or authenticated by
any such person or by any public officer, unless such instrument is duly
stamped". Mr. Mani in continuation of his submission, however contended
that a plain reading of the Section 35 would depict that the same creates a . F
three-fold bar in respect of unstamped or insufficiently stamped document viz.
I. That it shall not be received in evidence.
II. That it shall not be acted upon;
G
III. That it shall not be registered or authenticated
• And it is on this score, it has been contended that the partition decree thus
even though already passed cannot be acted upon, neither becomes
enforceable unless d~awn up and engrossed on stamp papers. The period of
limitation, it has been contended in respect of the partition decree cannot H
490 SUPREME COURT REPORTS [2001] SUPP. I S.C.R.
A begin to run till it is engrossed on requisite stamp paper. There is thus, it has
been contended a legislative bar under Section 35 of the Indian Stamp Act
for enforceability of partition decree. Mr. Mani contended that enforcement
includes the whole process of getting an award as well as execution since
execution otherwise means due performance of all formalities necessary to
give validity to a document. We are however unable to record our concurrence
B therewith. Prescription of a twelve year certain period cannot possibly be
obliterated by an enactment wholly unconnected therewith. Legislative mandate
as sanctioned under Article 136 cannot be kept in abeyance unless the self
same legislation makes a provision therefor. It may also be noticed that by , the passing of a final decree, the rights stand crystalised and it is only
C thereafter its enforceability can be had though not otherwise.
As noticed above the submission of Mr. Manu apparently seemed to
be very attractive specially in view of the decision in Lokhande's case (supra).
In Lokhande's case as noted above, this Court was not called upon to decide
the true perspective of Article 136 of the Act of 1963 rather decided the issue
D in the peculiar fact situation of the matter on the basis of the Limitation Act
of 1908 and in particular, Article 182. This Court was rather specific on that
score and it is on that score only that the Andhra Pradesh High Court's
Judgment in Smt. Kotipal/i Mahalakshmamma v. Kotipal/i Ganeswara Rao
& Ors., AIR (1960) A.P. 54 was said to be the correct exposition of law. Article
E 136 however has a special significance and a very wide ramification as noted
above and as such we need not dilate therefore any further.
Turning attention on to Section 2 (15) read with Section 35 of the Indian
Stamp Act, be it noted that the Indian Stamp Act, 1899 (Act 2 of 1899) has
been engrafted in the Statute Book to consolidate and amend the law relating
F to stamps. Its applicability thus stands restricted to the scheme of the Act.
It is a true fiscal statute in nature, as such strict construction is required to
be effected and no liberal interpretation. Undoubtedly, Section 2 (15) includes
a decree of partition and Section 35 of the Act of 1899 lays down a bar in
the matter of unstamped or insufficient stamp being admitted in evidence or
G being acted upon-but does that mean that the prescribed period shall remain
suspended until the stamp paper is furnished and the partition decree is
drawn thereon and subsequently signed by the Judge? The result would
however be an utter absurdity; As a matter of fact ff somebody does not wish
to furnish the stamp paper within the time specified therein and as required
by the Ci vi I Court to draw up the partition decree or if someone does not at
H all furnish the stamp paper, does that mean and imply, no period of limitation
HAMEED JOHARAN v. ABDUL SALAM [BANERJEE, J.] 491
can said to be attracted for execution or a limitless period of limitation is A
available. The intent of the legislature in engrafting the Limitation Act shall
have to be given its proper weightage. Absurdity cannot be the outcome of
interpretation by a court order and wherever there is even possibility of such
absurdity, it would be a plain exercise of judicial power to repel the same
rather than encouraging it. The whole purport of the Indian Stamp Act is to B
make available certain dues and to collect revenue but it does not mean and
imply, overriding the effect over another statute operating on a completely
different sphere.
Let us examine the matter from another perspective. Limitation Act has
been engrafted in the Statute Book in the year 1963 and the Indian Stamp Act C
has been bought into existence by the British Parliament in 1899 though,
however, the Government of India Adaptation of Indian Laws Order 1937, the
Indian Independence Adoptation of Central Acts and Ordinance Order 1948
and the Adoptation of Laws Order 1950 allowed this fiscal statute to remain
on the statute book. The legislature while engrafting 1963 Act, it is presumed
and there being a golden canon of interpretation of statutes, that it had in D
its mind the existing Indian Stamp Act before engrafting the provisions _under
Article 136. A latter statute obviously will have the effect of nullifying ail
earlier statute in the event of there being any conflict provided however and
in the event there is otherwise legislative competency in regard thereto. As
regards the legislative competency, there cannot be any doubt which can E
stand focussed neither there is any difficulty in correlating the two statutes
being operative in two different and specified spheres. Enforceability of the
decree cannot be the subject matter of Section 35 neither the limitation can
be said to be under suspension. The heading of the Section viz., "Instrument
not duly stamped inadmissible in evidence etc". (emphasis supplied) itself
denotes its sphere of applicability : it has no relation with the commencement F
of period of limitation. As noticed above 'executability' and 'enforceability' are
two different concepts having two specific connotation in legal parlance.
They cannot be termed as synonymous, as contended by Mr. Mani nor they
can be attributed one and the same meaning. Significantly, the final partition
decree, whenever it is drawn bears the date of the decree when the same was G
pronounced by Court and not when it stands engrossed on a stamp paper
and signed by the judge and this simple illustration takes out the main thrust
of Mr. Mani's submission as regards the applicability of the Stamp Act visa-vis the enforceability of the decree. The decree may not be received in
evidence nor it can be acted upon but the period of limitation cannot be said
to remain under suspension at the violation and mercy of the litigant. H
492 SUPREME COURT REPORTS (2001] SUPP. I S.C.R.
A Limitations starts by reason of the statutory provisions as prescribed in th!'
statute. Time does not stop running at the instance of any individual unless,
of course, the same has a statutory sanction being conditional, as more fully
noticed hereinbefore; the Special Bench decision of the Calcutta High Court
in the case of Bholanath Karmakar and Ors. v. Madanmohan Karmakar,
B (AIR 1988 Calcutta I), in our view has completely misread and misapplied the
law for the reasons noted above and thus cannot but be said to be not
correctly decided and thus stands overruled. Undoubtedly, the judgment of
the Calcutta High Court has been a very learned judgment but appreciation
of the legislative intent has not been effected in a manner apposite to the
intent rather had a quick shift therefrom by reason wherefor, the Special
C Bench came to a manifest error in recording that the period of limitation for
execution of a partition decree shall not begin to run until the decree is
engrossed on requisite stamp paper.
On the wake of the aforesaid we are unable to record an affirmative
support to Mr. Mani's submission that Section 35 read with Section 2(15) of
D the Indian Stamp Act 1899 would over-run the Limitation Act of 1963 and thus
give a complete go-bye to the legislative intent in the matter of incorporation
of Article 136.
The appeal, therefore, fails and is dismissed. No order as to costs.
E S.V.K. Appeal dismissed.
