Now coming to the first submission of the Learned Counsel for
the Decree Holder, no doubt a consent decree presupposes an agreement
which has been arrived at between the parties and in terms of which agreement, the parties desire that the proceedings be disposed of. The
consent decree in the instant case, no doubt reflects the agreement which was arrived at between the parties in the said Suit. However, the said
agreement cannot be equated with an agreement of which the enforcement
is sought in a Suit. The agreement in question in the instant matter has translated itself into a decree and therefore all the attributes of a decree
would be applicable to it. The submission of the Learned Counsel for the Decree Holder based on clause 4 seems to be attractive at the first blush,
but does not hold water on deeper scrutiny. As indicated above, the decree in question was enforceable from day one as the Court in question was not required to do anything further in the matter for the decree being made
enforceable. Therefore, the analogy sought to be drawn by the Learned Counsel appearing on behalf of the Decree Holder with an agreement
which contains a covenant providing for compliance as and when the
Plaintiff calls upon the Defendants to do so cannot be applied in the facts of this case, as though in the instant case the Suit has been disposed of in
terms of the agreement, the agreement is nevertheless a decree passed in the Suit and would therefore be executable in terms of Article 136 of the
Limitation Act. Though the submission based on clause 4 does not seem to
have been urged before the Executing Court, this Court has proceeded to consider the same as the same impinges upon the entitlement of the
Decree Holder to get the decree executed.
13 In so far as the submission based on Section 230-A of the
Income Tax Act is concerned, in my view, the said condition of obtaining the certificate under Section 230-A of the Income Tax Act cannot be said to
be a condition precedent for the enforceability of the decree and therefore cannot extend the period of limitation or suspend the period of limitation
till such time as the certificate is obtained. The Executing Court has therefore rightly observed that whether the Decree Holder could have waited indefinitely for the Judgment Debtors to get the said certificate and
whether the period of limitation would stand suspended till such time. In my view, the repeal of Section 230-A from the Statute Book in the year
2001, cannot aid the case of the Decree Holder as the decree was
enforceable right from day one.
Bombay High Court
Rajendra singh v deenanath on 13 June, 2013
Bench: R. M. Savant
1 Rule, with the consent of the learned counsel for the parties ba
made returnable forthwith and heard. om
2 The writ jurisdiction of this Court under Article 227 of the Constitution of India is invoked against the Judgment and Order dated 21 st B
April 2012 passed below Exhibit-1 in Special Darkhast No.28 of 2010 by which the Executing Court has held that in so far as the execution of conveyance is concerned, the same is barred by limitation.
3 The facts necessary to be cited for an adjudication of the above rt
Petition can be stated thus :-
ou
The Petitioner herein is the original Plaintiff in Special Civil Suit No.1208 of 1994. The Respondents herein are the original Defendants C
in the said suit. The said suit was filed for specific performance of the Agreement of Sale dated 25th January 1994, which Agreement of Sale was h
in respect of the suit lands. The cause for filing the said suit was the ig
reluctance of the Defendants in complying with the terms and conditions of the said Agreement of Sale dated 25 th January 1994. In the said suit the H
relief sought was in respect of specific performance of the said Agreement of Sale dated 25th January 1994 as also the letter dated 18th October 1994. y
During the pendency of the said suit, the parties entered into a ba
compromise which was recorded in the Consent Terms which were drawn up. The said Consent Terms were filed in the said suit on 5 th January 1995 om
and the said suit was decreed in terms of the said Consent Terms. It has been recorded in the said Consent Terms which have been signed by the B
parties that the Defendants have received a sum of Rs.25,50,000/- from the Plaintiff i.e. the Petitioner herein in full and final settlement towards the consideration of the suit lands. The Defendants undertook to execute
conveyance in respect of the suit lands. The Defendants also undertook to produce the Certificate under Section 230-A of the Income Tax Act, 1961 rt
on or before execution of the conveyance. The said Consent Terms also ou
provided that the Plaintiff i.e. the Petitioner herein would provide a residential flat admeasuring 600 sq.ft. free of cost to the Defendants which C
would stand in the name of Prema Dinanath Bhoir. It is the case of the Plaintiff that after filing of the Consent Terms dated 5 th January 1995, he h
requested Dinanath Keshav Bhoir - the original Defendant No.1 on many ig
occasions when they met personally to obtain the said Certificate under Section 230-A of the Income Tax Act. However, the said Dinanath Bhoir H
did not take any steps to obtain the said Certificate. On 12 th July 1998 the said Dinanath Bhoir died. It is the case of the Plaintiff that thereafter he y
followed up the matter with Ramesh Dinanath Bhoir and Ranjan Dinanath ba
Bhoir requesting them to get the said Certificate as it was the obligation of the Defendants to get the said Certificate under the said Consent Terms. om
However, in spite of the repeated requests of the Plaintiff, the said Certificate was not obtained by either Ramesh Bhoir or Ranjan Bhoir. It is B
the case of the Plaintiff that thereafter on 1 st June 2001 there was a repeal of Section 230-A of the Income Tax Act by virtue of which the said Section 230-A stood deleted from the statute book. It is the case of the Plaintiff mmj 4/27 ::: Downloaded on - 16/06/2013 12:22:05 ::: wp-6777-12.sxw
that he was ready to provide the residential flat admeasuring 600 sq.ft as per the said Consent Terms to the Defendants. However, the Defendants rt
demanded money in lieu of the flat as consideration. After discussion it ou
was agreed between the parties that the Plaintiff would pay an amount of Rs.11,00,000/- in lieu of the flat. According to the Plaintiff, he has paid the C
amount of Rs.8,00,000/- by cheque and Rs.3,00,000/- by cash to the Defendants, which the Defendants have accepted and issued a receipt for h
the same. It is the case of the Plaintiff that after the receipt of the amounts ig
in lieu of the flat and in view of the fact that the Defendants had already received the amount of consideration as per the Consent Terms, the H
Defendants would come forward for execution of the Conveyance Deed. The Plaintiff accordingly prepared a draft Conveyance Deed and called y
upon the Defendants for signing the same. However, the Defendants, ba
according to the Plaintiff, for the reasons best known to them, refused to sign the Conveyance Deed.
om
4 The Plaintiff by his Advocates letter / notice dated 12-1-2010 called B
upon the Defendants to execute the conveyance within 15 days from the date of the receipt of the said letter/notice in respect of the lands mentioned in Annexure-A of the Consent Terms. On the Defendants failing mmj 5/27 ::: Downloaded on - 16/06/2013 12:22:05 ::: wp-6777-12.sxw
to comply with the said notice, the Plaintiff filed Special Darkhast No.28 of 2010 for execution of the consent decree dated 5-1-1995 passed in the said rt
Suit. The Plaintiff whilst seeking execution of the said decree had also ou
sought other connected reliefs which are mentioned in the execution application. The list of the suit properties was also annexed to the said C
execution application being Annexure-A. The prayers in the said Special Darkhast No.28 of 2010 are reproduced hereunder for ready reference :- h
ig
"(1) The Notices under O.21 R.22 of C.P.C. May be issued to the Defendants calling upon them to show cause why the Decree should not be executed H
against them.
(2) It is prayed that simultaneously the Notices under O.21 R.34(2) of C.P.C. May be issued to the y
Defendants and the draft of the Sale Deed of the suit property may be served on the Defendants. ba
(3) If the Defendant objects to the Draft which may be heard & decided. The Draft of the Sale Deed may be approved as per the provision under O.21 om
R.34(3) of C.P.C.
(4) The Commissioner may be appointed to execute the Conveyance Deed/Sale Deed and be directed to sign the said Sale Deed on behalf of the B
Defendants and the said Conveyance Deed may be registered in the Office of the Sub-Registrar Thane. (As per Provision under O.21 R.34(4) & 6 of C.P.C. AND
mmj 6/27 ::: Downloaded on - 16/06/2013 12:22:05 ::: wp-6777-12.sxw
(5) The D.H. Ready to pay the costs and expenses of Stamp Duty & Registration charges as would payable and Sundry expenses etc. directly at the rt
time of registering the said Deed of Conveyance by the Commissioner.
ou
(6) The Defendants are interfering the possession of the Plaintiff over the lands described in Annexure A and hence Defendants may also be served with notice under O.21 R. 32(1) of C.P.C. for willful C
disobedience of Decree.
(7) The Moveable Property of the Defendants may be attached by Issue of Warrant of Attachment h
under O.21 R.32(1) r.w. 43 of C.P.C. And may be sold under O.21 R. 32(3) of C.P.C. and to pass ig
further orders of awarding compensation to Plaintiff from the amount realized in Auction Sale. H
(8) Any other Orders as deem fit and proper may be passed.
(9) D.H. Crave leave to add, alter, amend, herein y
and pray for any other relief."
ba
In the said execution application, the Judgment Debtors filed their reply which was numbered as Exhibit-13 and inter alia took up various om
contentions amongst which was the contention that a fraud was practiced on the Judgment Debtors/Defendants in the matter of filing the Consent B
Terms in the said Suit. The Judgment Debtors also filed an application (Exhibit 24) for framing of a preliminary issue of limitation in so far as the maintainability of the said Special Darkhast No.28 of 2010, is concerned. mmj 7/27 ::: Downloaded on - 16/06/2013 12:22:05 ::: wp-6777-12.sxw
The application for framing the said issue of limitation was founded on the fact that since the consent decree is dated 5/1/1995 the execution rt
application filed in the year 2010 was hopelessly barred by limitation ou
having regard to Article 136 of the Limitation Act. In the said application, the Judgment Debtors had also prayed that till the said point of limitation C
is decided, the execution of the decree be stayed. h
5 In so far as the application for Stay (Exhibit 17) of the decree ig
was concerned, the Executing Court considered the said application and on the ground that since the execution proceeding has been registered, the H
same is within limitation and therefore the application Exhibit 17 for stay of the execution proceeding could not be entertained and accordingly y
rejected the same by order dated 24-2-2011. The said order was ba
challenged by the Judgment Debtors by filing a Writ Petition in this Court being Writ Petition No.2128 of 2011. The said Writ Petition was allowed by om
a Learned Single Judge of this Court and the Learned Single Judge held that the direction to register the execution Petition, can by no stretch of B
imagination be held to be conclusive determination of the issue of limitation. The Learned Judge therefore set aside the said order dated 24- 2-2011 and remanded the matter back to the Trial Court for deciding the mmj 8/27 ::: Downloaded on - 16/06/2013 12:22:05 ::: wp-6777-12.sxw
objection as regards the maintainability of the execution Petition afresh on the point of limitation.
rt
ou
6 On remand, the Executing Court has passed the impugned order dated 21/04/2012 by which the Executing Court held that the C
execution proceeding is not barred by limitation entirely and that the same is barred only in respect of the conveyance of the Suit property which is h
sought. The Executing Court as can be seen held that obtaining of the ig
certificate under Section 230-A of the Income Tax Act cannot be said to be a condition precedent for enforceability of the decree, in the sense which H
would suspend the limitation period. The Executing court held that a perusal of the entire decree no where discloses that the enforceability of y
the decree was to take place after happening of a certain specified event. ba
The Executing Court, in so far as the aspect of certificate under Section 230-A of the Income Tax Act is concerned, observed that the period of om
limitation would not stand suspended indefinitely till such time as the said certificate under Section 230-A of the Income Tax Act was obtained. B
However, as indicated above, the Executing Court held that the aspect of the possession of the property and also the aspect that the Defendants would not disturb the possession of the Plaintiff in so far as the said reliefs mmj 9/27 ::: Downloaded on - 16/06/2013 12:22:05 ::: wp-6777-12.sxw
are concerned, there is no limitation as such according to the Executing Court for their enforcement. The Executing Court therefore held that the rt
execution proceeding is beyond limitation only in so far as the conveyance ou
sought of the Suit property is concerned. As indicated above, it is the said order dated 21-4-2012 which is impugned in the present Petition. C
7 SUBMISSIONS ON BEHALF OF THE PETITIONER BY THE h
LEARNED COUNSEL SHIR G S GODBOLE
ig
(A) That the application for execution of the decree is filed within H
time considering the stipulations in the decree; y
(B) That the decree in question is a declaratory decree in respect ba
of the suit lands mentioned in Annexure-A to the suit. The said decree is therefore valid and binding on the parties; om
(C) That the entire consideration has been paid and the B
conveyance was to be executed as and when called upon by the Petitioner, therefore, the application for execution as filed in the year 2010 is not beyond limitation; mmj 10/27 ::: Downloaded on - 16/06/2013 12:22:05 ::: wp-6777-12.sxw
(D) That the decree incorporates the agreement which has been rt
arrived at between the parties. By virtue of the said ou
agreement a new contract is brought into force. In terms of clause 12 in the event the Respondents fail to execute the C
conveyance in favour of the Petitioner when called upon to do so, the clause provides that the same can be done through h
Court Commissioner. Therefore, the occasion to file the ig
execution application would arise only when the Respondents denied execution of the conveyance when called upon to do so H
by the Petitioner.
y
(E) That the Plaintiff called upon the Respondents to execute the ba
conveyance by letter/notice dated 12/1/2010. The date of reckoning for limitation would be the said date i.e. 12/1/2010 om
from which the limitation would start to run in so far as the application for execution is concerned. B
(F) That the Petitioner has paid the further amounts to the Defendants in lieu of the constructed area which was to be mmj 11/27 ::: Downloaded on - 16/06/2013 12:22:05 ::: wp-6777-12.sxw
handed over to the Respondents and the same was done between the period 2004-2007 and therefore the execution rt
application filed in the year 2010 was within the period of 12 ou
years of the said amount being paid. C
(G) That since Section 230A of the Income Tax Act was repealed on 01/06/2001, the Execution Application filed in the year h
2010 was therefore within limitation; ig
(H) That the execution of the decree stands apart from the H
enforceability of the decree. The enforceability of the decree in the instant case arose only when the Respondents failed to y
comply with the notice issued by the Petitioner on 12/1/2010 ba
as regards execution of the conveyance; om
(I) That the judgment reported in AIR 1999 SC 3421 in the case of W.B. Essential Commodities Supply Corporation v/s. B
Swadesh Agro Farming and Storage Pvt. Ltd and another has no application in the facts of the present case, as in the instant case the conveyance was to be executed only after the mmj 12/27 ::: Downloaded on - 16/06/2013 12:22:05 ::: wp-6777-12.sxw
Defendants were to obtain the certificate under Section 230A of the Income Tax Act. Such was not the case in the judgment rt
in W.B. Essential Commodities Supply Corporation's case ou
(Supra) where the Apex Court was concerned with the enforceability of a money decree, which was not contingent C
upon the happening of any extraneous event. h
8 SUBMISSIONS ON BEHALF OF THE RESPONDENTS BY THE ig
LEARNED SENIOR COUNSEL SHRI SHAILESH SHAH. H
(I) That though there was an agreement between the parties, the said agreement translated itself into a decree which was y
passed by the Executing Court in terms of the said agreement; ba
(II) That the Petitioner cannot rely upon the said agreement to om
contend that the cause for filing the application for execution would arise only when there was refusal to comply with the B
decree by the Defendants. Since in the instant case, the decree has been passed in terms of the agreement which has been arrived at between the parties, the period of limitation that mmj 13/27 ::: Downloaded on - 16/06/2013 12:22:05 ::: wp-6777-12.sxw
would apply would be one in respect of a decree and not one in respect of a contract;
rt
ou
(III) That the Petitioner cannot rely upon the said agreement so as to seek applicability of the provisions relating to a contract. If C
the Petitioner seeks enforcement of the agreement, then he ought to have filed a suit for specific performance and not an h
application for execution of the decree. The said clause would ig
not aid the Petitioner to contend that Article 136 of the Limitation Act would not apply. According to the learned H
Senior Counsel for the Respondents for the purposes of Article 136 of the Limitation Act what is relevant is the enforceability y
of the decree and not executability of the decree. The learned ba
Senior Counsel sought to rely upon the judgments of the Apex Court reported in 1] AIR 1999 SC 3421 in the case of W.B. om
Essential Commodities Supply Corporation v/s. Swadesh Agro Farming and Storage Pvt. Ltd and another and 2] AIR B
2001 SC 3404 in the case of Hameed Joharan v/s Abdul Salam in support of the said contention. mmj 14/27 ::: Downloaded on - 16/06/2013 12:22:05 ::: wp-6777-12.sxw
(IV) That the submission based on clause 12 viz. that the conveyance was to be executed as and when called upon by rt
the Petitioner was not a point which was urged before the ou
Executing Court and has been urged for the first time in this Court. The Petitioner is therefore dis-entitled to raise the said C
point as the said point was not for consideration before the Executing Court.
h
(V)
ig
That the receipts in respect of payments made between the year 2004-2007 do not mention that the said payments were H
towards the constructed portion which was to be handed over to the Defendants by the Petitioner, and therefore, the said y
receipts cannot aid the Petitioner to get the time extended; ba
(VI) That Section 18(1) of the Limitation Act would have no om
application as the receipts in question are after the decree has been passed by the Executing Court; and would also not apply B
in view of clause (c).
(VII) That the permission to be obtained under Section 230A would mmj 15/27 ::: Downloaded on - 16/06/2013 12:22:05 ::: wp-6777-12.sxw
not postpone the execution unless the specified date was mentioned by which date the permission was to be obtained, rt
as rightly observed by the Executing Court, enforceability of ou
the decree cannot be postponed indefinitely on the ground that the permission under Section 230A of the Income Tax Act C
was to be obtained. The learned Senior Counsel for the Respondents in support of the said contention sought to place h
reliance on the judgment of a learned Single Judge of this ig
Court reported in 2003(5) Bom. C.R. 565 in the case of Om Prakash Navani & another v/s Juno Changas Pereira and H
others.
y
CONSIDERATION
ba
9 In the context of the submissions made by the Learned Counsel for the parties and especially the submissions made on behalf of om
the Decree Holder, it would be apposite to reproduce the relevant clauses of the said decree dated 5/1/1995 which are clauses 3, 4, 5, 6, 7, 9, 10 and B
12.
"3. The defendants agree and confirm that the plaintiff is in possession of all the lands described in Annexure "A" to these Consent Terms and the plaintiff mmj 16/27 ::: Downloaded on - 16/06/2013 12:22:05 ::: wp-6777-12.sxw
has been put in possession of the said land in part performance of the agreement to sell executed by the defendant No.1 in favour of the plaintiff. rt
4. The defendant shall sell and convey all the lands described in Annexure "A' hereto in favour of the ou
plaintiff or his nominee or nominees as and when called upon to do so. The defendants declare that they have received a total sum of Rs.25,50,000/- from the plaintiff in full and final settlement of price of the said C
lands described in Annexure A hereto. The defendants undertake to execute conveyance in respect of the said lands described in Annexure A as and when called upon to do so by the plaintiff or his nominee or h
nominees. The defendants shall join all persons, if any, to the said conveyance for effectively transferring the ig
said lands in favour of the plaintiff or his nominee/nominees. The said conveyance shall be duly registered under the provisions of the Indian H
Registration Act, 1908 and the Defendants shall appear in the office of the concerned sub-registrar for lodging the conveyance and for admitting execution thereof. The Plaintiff shall provide to the defendants jointly a y
residential flat free of cost admeasuring 600 sq.feet of carpet area i.e. 750 sq.feet built up in any one of the ba
building to be constructed on the said lands which shall stand in the name of Kum. Prema Dinanath Bhoir.
5. The defendants shall produce a Certificate under om
Section 230-A of the Income Tax Act, 1961 on or before execution of the Conveyance. The defendants shall do all such acts, deeds and things which are necessary and required for effectively transferring the said lands in favour of the plaintiff or his nominee or B
nominees as aforesaid.
6. The defendants shall execute an Irrevocable General Power of Attorney in favour of the plaintiff or his nominee or nominees as per the draft prepared by the plaintiff or his nominees as the case may be in mmj 17/27 ::: Downloaded on - 16/06/2013 12:22:05 ::: wp-6777-12.sxw
respect of the properties described in Annexure A hereto.
rt
7. It is hereby declared that the Power of Attorney dated 25th January, 1994, the declaration dated 25th January 1994 is valid and subsisting and binding on ou
the defendants.
9. The plaintiff shall be entitled to develop the said lands by construction of building or buildings thereon C
and by selling flats and premises therein.
10. It is declared that the defendants have no subsisting right, title or interest of whatsoever nature h
in respect of the said lands or any part thereof. ig
12. In the event of the defendants failing to execute the conveyance as aforesaid or failing to get the conveyance registered, some fit and proper person H
should be appointed as court Commissioner to execute the conveyance on behalf of the defendants and get the same duly registered in the office of the sub-registrar." y
ba
10 On behalf of the Decree Holder much store was laid on clauses 4 and 5 to buttress the submission that the execution proceeding as om
filed was within limitation. It was the submission of the Learned Counsel appearing on behalf of the Decree Holder that the Suit has been disposed of in terms of the agreement which was arrived at between the parties and B
which agreement is reflected by the various clauses of the consent terms. It was the submission of the Learned Counsel appearing on behalf of the Decree Holder that the Defendants were obliged in terms of clause (4) to mmj 18/27 ::: Downloaded on - 16/06/2013 12:22:05 ::: wp-6777-12.sxw
sell and convey the lands covered in Annexure-A in favour of the Plaintiff or his nominee or nominees as and when called upon to do so. It was rt
further the submission of the Learned Counsel for the Decree Holder that ou
the Defendants had undertaken to execute conveyance in respect of the properties mentioned in Annexure A as and when called upon to do so by C
the Plaintiff or his nominee or nominees. The Learned Counsel would therefore contend that the occasion to file the execution proceeding arose h
when the Defendants failed to comply with the advocate's notice dated 12- ig
1-2010 as it is by the said notice that the Decree Holder called upon the Defendants to execute the conveyance in his favour. It was the submission H
of the Learned Counsel for the Decree Holder that the execution proceeding as filed in the year 2010 therefore cannot be said to be beyond y
limitation. It was also the submission of the Learned Counsel for the ba
Decree Holder that it was the obligation of the Defendants to get the certificate under Section 230-A of the Income Tax Act and that they had om
failed to discharge the said obligation. However, fortunately for the Decree Holder the said Section 230-A was repealed in the year 2001 and therefore B
the execution Petition filed in the year 2010 can be said to be in limitation. 11 Before adverting to the aforesaid submissions, it would be mmj 19/27 ::: Downloaded on - 16/06/2013 12:22:05 ::: wp-6777-12.sxw
relevant to consider the nature of the decree of which execution is sought. A reading of the aforesaid clauses 3, 4, 5, 6, 7, 9, 10 and 12 unmistakably rt
and unequivocally lead to a conclusion that the decree in question is ou
enforceable from day one and that the said decree was not a conditional decree or was contingent upon the happening of certain events. C
12 Now coming to the first submission of the Learned Counsel for h
the Decree Holder, no doubt a consent decree presupposes an agreement ig
which has been arrived at between the parties and in terms of which agreement, the parties desire that the proceedings be disposed of. The H
consent decree in the instant case, no doubt reflects the agreement which was arrived at between the parties in the said Suit. However, the said y
agreement cannot be equated with an agreement of which the enforcement ba
is sought in a Suit. The agreement in question in the instant matter has translated itself into a decree and therefore all the attributes of a decree om
would be applicable to it. The submission of the Learned Counsel for the Decree Holder based on clause 4 seems to be attractive at the first blush, B
but does not hold water on deeper scrutiny. As indicated above, the decree in question was enforceable from day one as the Court in question was not required to do anything further in the matter for the decree being made mmj 20/27 ::: Downloaded on - 16/06/2013 12:22:05 ::: wp-6777-12.sxw
enforceable. Therefore, the analogy sought to be drawn by the Learned Counsel appearing on behalf of the Decree Holder with an agreement rt
which contains a covenant providing for compliance as and when the ou
Plaintiff calls upon the Defendants to do so cannot be applied in the facts of this case, as though in the instant case the Suit has been disposed of in C
terms of the agreement, the agreement is nevertheless a decree passed in the Suit and would therefore be executable in terms of Article 136 of the h
Limitation Act. Though the submission based on clause 4 does not seem to ig
have been urged before the Executing Court, this Court has proceeded to consider the same as the same impinges upon the entitlement of the H
Decree Holder to get the decree executed. y
13 In so far as the submission based on Section 230-A of the ba
Income Tax Act is concerned, in my view, the said condition of obtaining the certificate under Section 230-A of the Income Tax Act cannot be said to om
be a condition precedent for the enforceability of the decree and therefore cannot extend the period of limitation or suspend the period of limitation B
till such time as the certificate is obtained. The Executing Court has therefore rightly observed that whether the Decree Holder could have waited indefinitely for the Judgment Debtors to get the said certificate and mmj 21/27 ::: Downloaded on - 16/06/2013 12:22:05 ::: wp-6777-12.sxw
whether the period of limitation would stand suspended till such time. In my view, the repeal of Section 230-A from the Statute Book in the year rt
2001, cannot aid the case of the Decree Holder as the decree was ou
enforceable right from day one.
C
14 Now coming to the Judgment in Hameed Joharan's case (Supra), the Apex Court in the said Judgment held that for the purposes of h
Article 136 what is relevant is as to when the decree became enforceable ig
and not when decree became executable. The Apex Court further held that if no conditions are attached to the decree and the same has been passed H
declaring the rights of the parties finally and the Court is not required to deal with the matter any further, then the decree becomes enforceable on y
the day when it was passed. The test according to the Apex Court is ba
whether the Court is left out something for being adjudicated at a later point of time or is the decree contingent upon the happening of an event om
i.e. to say the Court by its own order postpones the enforceability of the decree. In the event of there being no postponement by a specific order of B
Court, the decree is enforceable immediately. In the facts of the present case, the decree nowhere discloses that it specifies some future date for its enforcement, the court has not postponed the enforceability of the decree mmj 22/27 ::: Downloaded on - 16/06/2013 12:22:05 ::: wp-6777-12.sxw
by any order. Hence the decree in question in the present case was enforceable from day one i.e. 5-1-1995. The said Judgment therefore can rt
hardly said to aid the case of the Decree Holder in so far as getting over ou
the aspect of limitation is concerned. C
15 In W.B. Essential Commodities Supply Corporation's case (supra) the Apex Court was concerned with the enforceability of a money h
decree. The Apex Court held that a decree or order is said to be ig
enforceable when it is executable, and for a decree to be executable, it must be in existence. The Apex Court further held that a decree would be H
deemed to come into existence immediately on the pronouncement of the judgment. In the facts of the case before it where the decree was a money y
decree, the Apex Court held that the decree became enforceable ba
immediately on the pronouncement of the judgment, and therefore, it cannot be said that the delay in drawing up the decree renders it om
unenforceable from the date of the judgment. The Apex Court held that only in cases where an extraneous event is to happen or there is a statutory B
bar that the decree is not enforceable from the date of its pronouncement. The view taken by the Apex Court in W.B. Essential Commodities Supply Corporation's case (supra) can therefore be said to be the consistent view mmj 23/27 ::: Downloaded on - 16/06/2013 12:22:05 ::: wp-6777-12.sxw
of the Apex court on the said point. rt
16 In Omprakash Navani's case (supra) a Learned Single Judge ou
of this Court was also concerned with the execution of a consent decree passed in a Suit. In the said proceeding also, an issue of limitation was C
raised questioning the maintainability of the execution Petition. In the context of the above Petition, clause (5) of the consent decree passed in h
the said Suit is relevant and for ready reference is reproduced herein under:
ig
(5) the defendant Nos.1 and 2 do obtain permission of H
the Board of Trustees of the Port of Bombay to the assignment of the lease of the said immovable property in favour of the Plaintiffs. The Plaintiffs undertake to this Hon'ble court to accept such terms y
and conditions that may be imposed by the Board of Trustees of the Port of Bombay and not to raise any ba
objection thereto.
The consent decree passed in the said case was dated 20-8-1983 and the om
Execution Application No.259 of 2002 was therefore undisputedly filed after the period of 12 years prescribed by Article 136. A submission was B
sought to be advanced on behalf of the Decree Holders/Plaintiffs in the said case that the said decree was a conditional decree and the same would became enforceable only upon happening of the event of obtaining mmj 24/27 ::: Downloaded on - 16/06/2013 12:22:05 ::: wp-6777-12.sxw
permission by Bombay Port Trust for the assignment of the lease of the said immovable property in favour of the Plaintiffs. The said submission was rt
not countenanced by a Learned Single Judge of this Court. The Learned ou
Single Judge held that on a reading of the clauses of the said decree, it could not be said that the same was a conditional decree as the said decree C
became enforceable from the day when it was passed unless the decree itself specifies some future date for its enforcement. The Learned Judge h
observed that in the said case, there is no specific date provided for the ig
enforcement of the decree. The facts in Navani's case (Supra) can be said to be on all fours with the facts of the present case as in Navani's case H
(Supra) the permission of the Board of Trustees of the Port of Bombay was to be obtained where as in the present case, the certificate under Section y
230-A of the Income Tax Act was to be obtained. Hence in my view, the ba
fact that the permission under Section 230-A was to be obtained would not make the decree in question a conditional decree so as to extend the period om
of limitation or suspend the period of limitation from running till such time as the certificate was obtained.
B
17 The Learned Counsel appearing for the Decree Holder also sought to rely upon Section 18(1) of the Limitation Act to contend that mmj 25/27 ::: Downloaded on - 16/06/2013 12:22:05 ::: wp-6777-12.sxw
since payment has been accepted by the Judgment Debtors between the years 2004 to 2007 in lieu of the flat admeasuring 600 sq.ft. which was to rt
be handed over to the Judgment Debtors, the limitation period would get ou
extended as a fresh period of limitation would have to be computed from the date of payment and therefore the application filed in the year 2010 C
was within time. In so far as the said submission is concerned, a serious objection was taken on behalf of the Judgment Debtors to the said h
submission on the ground that the receipts which are sought to be relied ig
upon in the present Petition do not disclose that the payment was made in lieu of the flat which was to be handed over to the Judgment Debtors. H
Secondly, the Learned Counsel appearing for the Decree Holder would rightly rely upon clause (c) of Section 18 of the Limitation Act which y
carves out an exception in so far as the application for execution of a ba
decree is concerned, the said clause (c) provides that an application for execution shall not be deemed to be an application in respect of any om
property or right. Hence Section 18 (1) would have no application to the execution of a decree in the present case and therefore the receipts which B
are sought to be relied upon for payments being made in lieu of the constructed portion to be handed over to the Judgment Debtors, would not in any manner aid the Decree Holder in getting the time extended. mmj 26/27 ::: Downloaded on - 16/06/2013 12:22:05 ::: wp-6777-12.sxw
18 For the above mentioned reasons there is no merit in the rt
above Petition. The impugned Judgment and Order of the Trial Court does ou
not merit any interference in the writ jurisdiction of this Court under Article 227 of the Constitution of India. The above Writ Petition is C
accordingly dismissed. Rule discharged with no order as to costs. [R.M.SAVANT, J]
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