decree. The Apex Court held that a decree or order is said to be
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
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
decree, the Apex Court held that the decree became enforceable
immediately on the pronouncement of the judgment, and therefore, it cannot be said that the delay in drawing up the decree renders it
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
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
of the Apex court on the said point.
Bombay High Court
Shri Rajendra Singh v Deenanath Keshav Bhoir on 13 June, 2013
Bench: R. M. Savant
Rule, with the consent of the learned counsel for the parties
made returnable forthwith and heard.
The writ jurisdiction of this Court under Article 227 of the
Constitution of India is invoked against the Judgment and Order dated 21 st
April 2012 passed below Exhibit1 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.
The facts necessary to be cited for an adjudication of the above
3
Petition can be stated thus :
The Petitioner herein is the original Plaintiff in Special Civil
Suit No.1208 of 1994. The Respondents herein are the original Defendants
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
in respect of the suit lands. The cause for filing the said suit was the
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
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.
During the pendency of the said suit, the parties entered into a
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
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
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 230A of the Income Tax Act, 1961
on or before execution of the conveyance. The said Consent Terms also
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
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
requested Dinanath Keshav Bhoir – the original Defendant No.1 on many
occasions when they met personally to obtain the said Certificate under
Section 230A of the Income Tax Act. However, the said Dinanath Bhoir
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
followed up the matter with Ramesh Dinanath Bhoir and Ranjan Dinanath
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.
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
the case of the Plaintiff that thereafter on 1 st June 2001 there was a repeal
of Section 230A of the Income Tax Act by virtue of which the said Section
230A stood deleted from the statute book. It is the case of the Plaintiff
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
demanded money in lieu of the flat as consideration. After discussion it
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
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
the same. It is the case of the Plaintiff that after the receipt of the amounts
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
Defendants would come forward for execution of the Conveyance Deed.
The Plaintiff accordingly prepared a draft Conveyance Deed and called
upon the Defendants for signing the same. However, the Defendants,
according to the Plaintiff, for the reasons best known to them, refused to
sign the Conveyance Deed.
4
The Plaintiff by his Advocates letter / notice dated 1212010 called
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 AnnexureA of the Consent Terms. On the Defendants failing
to comply with the said notice, the Plaintiff filed Special Darkhast No.28 of
2010 for execution of the consent decree dated 511995 passed in the said
Suit. The Plaintiff whilst seeking execution of the said decree had also
sought other connected reliefs which are mentioned in the execution
application. The list of the suit properties was also annexed to the said
execution application being AnnexureA. The prayers in the said Special
ig
Darkhast No.28 of 2010 are reproduced hereunder for ready reference :
“(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
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
Defendants and the draft of the Sale Deed of the
suit property may be served on the Defendants.
mmj
(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
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
Defendants and the said Conveyance Deed may be
registered in the Office of the SubRegistrar Thane.
(As per Provision under O.21 R.34(4) & 6 of C.P
.C.
AND
(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
time of registering the said Deed of Conveyance by
the Commissioner.
(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 for willful
.C.
disobedience of Decree.
ig
(7) The Moveable Property of the Defendants
may be attached by Issue of Warrant of Attachment
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 and to pass
.C.
further orders of awarding compensation to
Plaintiff from the amount realized in Auction Sale.
(8) Any other Orders as deem fit and proper may
be passed.
(9) D.H. Crave leave to add, alter, amend, herein
and pray for any other relief.”
In the said execution application, the Judgment Debtors filed their reply
which was numbered as Exhibit13 and inter alia took up various
contentions amongst which was the contention that a fraud was practiced
on the Judgment Debtors/Defendants in the matter of filing the Consent
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.
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
application filed in the year 2010 was hopelessly barred by limitation
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
is decided, the execution of the decree be stayed.
In so far as the application for Stay (Exhibit 17) of the decree
was concerned, the Executing Court considered the said application and on
the ground that since the execution proceeding has been registered, the
same is within limitation and therefore the application Exhibit 17 for stay
of the execution proceeding could not be entertained and accordingly
rejected the same by order dated 2422011. The said order was
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
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
imagination be held to be conclusive determination of the issue of
limitation. The Learned Judge therefore set aside the said order dated 24
22011 and remanded the matter back to the Trial Court for deciding the
objection as regards the maintainability of the execution Petition afresh on
the point of limitation.
On remand, the Executing Court has passed the impugned
order dated 21/04/2012 by which the Executing Court held that the
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
ig
sought. The Executing Court as can be seen held that obtaining of the
certificate under Section 230A of the Income Tax Act cannot be said to be
a condition precedent for enforceability of the decree, in the sense which
would suspend the limitation period. The Executing court held that a
perusal of the entire decree no where discloses that the enforceability of
the decree was to take place after happening of a certain specified event.
The Executing Court, in so far as the aspect of certificate under Section
230A of the Income Tax Act is concerned, observed that the period of
limitation would not stand suspended indefinitely till such time as the said
certificate under Section 230A of the Income Tax Act was obtained.
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
are concerned, there is no limitation as such according to the Executing
Court for their enforcement. The Executing Court therefore held that the
execution proceeding is beyond limitation only in so far as the conveyance
sought of the Suit property is concerned. As indicated above, it is the said
order dated 2142012 which is impugned in the present Petition.
SUBMISSIONS ON BEHALF OF THE PETITIONER BY THE
That the application for execution of the decree is filed within
(A)
LEARNED COUNSEL SHIR G S GODBOLE
time considering the stipulations in the decree;
(B)
That the decree in question is a declaratory decree in respect
of the suit lands mentioned in AnnexureA to the suit. The
(C)
said decree is therefore valid and binding on the parties;
That the entire consideration has been paid and the
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;
That the decree incorporates the agreement which has been
(D)
arrived at between the parties. By virtue of the said
agreement a new contract is brought into force. In terms of
clause 12 in the event the Respondents fail to execute the
conveyance in favour of the Petitioner when called upon to do
so, the clause provides that the same can be done through
ig
Court Commissioner. Therefore, the occasion to file the
execution application would arise only when the Respondents
denied execution of the conveyance when called upon to do so
(E)
by the Petitioner.
That the Plaintiff called upon the Respondents to execute the
conveyance by letter/notice dated 12/1/2010. The date of
(F)
reckoning for limitation would be the said date i.e. 12/1/2010
from which the limitation would start to run in so far as the
application for execution is concerned.
That the Petitioner has paid the further amounts to the
Defendants in lieu of the constructed area which was to be
handed over to the Respondents and the same was done
between the period 20042007 and therefore the execution
years of the said amount being paid.
(G)
application filed in the year 2010 was within the period of 12
That since Section 230A of the Income Tax Act was repealed
on 01/06/2001, the Execution Application filed in the year
That the execution of the decree stands apart from the
(H)
2010 was therefore within limitation;
enforceability of the decree. The enforceability of the decree
in the instant case arose only when the Respondents failed to
comply with the notice issued by the Petitioner on 12/1/2010
as regards execution of the conveyance;
(I)
That the judgment reported in AIR 1999 SC 3421 in the case
of W.B. Essential Commodities Supply Corporation v/s.
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
Defendants were to obtain the certificate under Section 230A
of the Income Tax Act. Such was not the case in the judgment
in W.B. Essential Commodities Supply Corporation's case
(Supra) where the Apex Court was concerned with the
enforceability of a money decree, which was not contingent
upon the happening of any extraneous event.
SUBMISSIONS ON BEHALF OF THE RESPONDENTS BY THE
LEARNED SENIOR COUNSEL SHRI SHAILESH SHAH.
(I)
That though there was an agreement between the parties, the
said agreement translated itself into a decree which was
passed by the Executing Court in terms of the said agreement;
(II)
That the Petitioner cannot rely upon the said agreement to
contend that the cause for filing the application for execution
would arise only when there was refusal to comply with the
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
would apply would be one in respect of a decree and not one
(III)
in respect of a contract;
That the Petitioner cannot rely upon the said agreement so as
to seek applicability of the provisions relating to a contract. If
the Petitioner seeks enforcement of the agreement, then he
ought to have filed a suit for specific performance and not an
application for execution of the decree. The said clause would
not aid the Petitioner to contend that Article 136 of the
Limitation Act would not apply. According to the learned
Senior Counsel for the Respondents for the purposes of Article
136 of the Limitation Act what is relevant is the enforceability
of the decree and not executability of the decree. The learned
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.
Essential Commodities Supply Corporation v/s. Swadesh
Agro Farming and Storage Pvt. Ltd and another and 2] AIR
2001 SC 3404 in the case of Hameed Joharan v/s Abdul
Salam in support of the said contention.
(IV)
That the submission based on clause 12 viz. that the
conveyance was to be executed as and when called upon by
the Petitioner was not a point which was urged before the
Executing Court and has been urged for the first time in this
Court. The Petitioner is therefore disentitled to raise the said
point as the said point was not for consideration before the
(V)
Executing Court.
That the receipts in respect of payments made between the
year 20042007 do not mention that the said payments were
towards the constructed portion which was to be handed over
to the Defendants by the Petitioner, and therefore, the said
receipts cannot aid the Petitioner to get the time extended;
(VI)
That Section 18(1) of the Limitation Act would have no
application as the receipts in question are after the decree has
been passed by the Executing Court; and would also not apply
in view of clause (c).
(VII)
mmj
That the permission to be obtained under Section 230A would
not postpone the execution unless the specified date was
mentioned by which date the permission was to be obtained,
as rightly observed by the Executing Court, enforceability of
the decree cannot be postponed indefinitely on the ground
that the permission under Section 230A of the Income Tax Act
was to be obtained. The learned Senior Counsel for the
Respondents in support of the said contention sought to place
reliance on the judgment of a learned Single Judge of this
Court reported in 2003(5) Bom. C.R. 565 in the case of Om
others.
Prakash Navani & another v/s Juno Changas Pereira and
CONSIDERATION
In the context of the submissions made by the Learned
Counsel for the parties and especially the submissions made on behalf of
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
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
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.
4.
The defendant shall sell and convey all the lands
described in Annexure “A' hereto in favour of the
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
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
nominees. The defendants shall join all persons, if any,
to the said conveyance for effectively transferring the
said lands in favour of the plaintiff or his
nominee/nominees. The said conveyance shall be duly
registered under the provisions of the Indian
Registration Act, 1908 and the Defendants shall appear
in the office of the concerned subregistrar for lodging
the conveyance and for admitting execution thereof.
The Plaintiff shall provide to the defendants jointly a
residential flat free of cost admeasuring 600 sq.feet of
carpet area i.e. 750 sq.feet built up in any one of the
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
Section 230A 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
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
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
the defendants.
respect of the properties described in Annexure A
hereto.
9.
The plaintiff shall be entitled to develop the said
lands by construction of building or buildings thereon
and by selling flats and premises therein.
10. It is declared that the defendants have no
subsisting right, title or interest of whatsoever nature
in respect of the said lands or any part thereof.
10
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
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 subregistrar.”
On behalf of the Decree Holder much store was laid on
clauses 4 and 5 to buttress the submission that the execution proceeding as
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
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
sell and convey the lands covered in AnnexureA in favour of the Plaintiff
or his nominee or nominees as and when called upon to do so. It was
further the submission of the Learned Counsel for the Decree Holder that
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
the Plaintiff or his nominee or nominees. The Learned Counsel would
therefore contend that the occasion to file the execution proceeding arose
when the Defendants failed to comply with the advocate's notice dated 12
12010 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
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
limitation. It was also the submission of the Learned Counsel for the
Decree Holder that it was the obligation of the Defendants to get the
certificate under Section 230A of the Income Tax Act and that they had
failed to discharge the said obligation. However, fortunately for the Decree
Holder the said Section 230A was repealed in the year 2001 and therefore
the execution Petition filed in the year 2010 can be said to be in limitation.
Before adverting to the aforesaid submissions, it would be
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
and unequivocally lead to a conclusion that the decree in question is
enforceable from day one and that the said decree was not a conditional
decree or was contingent upon the happening of certain events.
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
13
Decree Holder to get the decree executed.
In so far as the submission based on Section 230A of the
Income Tax Act is concerned, in my view, the said condition of obtaining
the certificate under Section 230A 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 230A 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.
Now coming to the Judgment in Hameed Joharan's case
14
(Supra), the Apex Court in the said Judgment held that for the purposes of
Article 136 what is relevant is as to when the decree became enforceable
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
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
the day when it was passed. The test according to the Apex Court is
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
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
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
by any order. Hence the decree in question in the present case was
enforceable from day one i.e. 511995. The said Judgment therefore can
hardly said to aid the case of the Decree Holder in so far as getting over
the aspect of limitation is concerned.
In W.B. Essential Commodities Supply Corporation's case
15
(supra) the Apex Court was concerned with the enforceability of a money
decree. The Apex Court held that a decree or order is said to be
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
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
decree, the Apex Court held that the decree became enforceable
immediately on the pronouncement of the judgment, and therefore, it
cannot be said that the delay in drawing up the decree renders it
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
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
of the Apex court on the said point.
In Omprakash Navani's case (supra) a Learned Single Judge
16
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
raised questioning the maintainability of the execution Petition. In the
context of the above Petition, clause (5) of the consent decree passed in
ig
the said Suit is relevant and for ready reference is reproduced herein
under:
(5) the defendant Nos.1 and 2 do obtain permission of
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
and conditions that may be imposed by the Board of
Trustees of the Port of Bombay and not to raise any
objection thereto.
The consent decree passed in the said case was dated 2081983 and the
Execution Application No.259 of 2002 was therefore undisputedly filed
after the period of 12 years prescribed by Article 136. A submission was
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
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
not countenanced by a Learned Single Judge of this Court. The Learned
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
became enforceable from the day when it was passed unless the decree
itself specifies some future date for its enforcement. The Learned Judge
observed that in the said case, there is no specific date provided for the
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
(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
230A of the Income Tax Act was to be obtained. Hence in my view, the
fact that the permission under Section 230A was to be obtained would not
make the decree in question a conditional decree so as to extend the period
of limitation or suspend the period of limitation from running till such time
as the certificate was obtained.
17
The Learned Counsel appearing for the Decree Holder also
sought to rely upon Section 18(1) of the Limitation Act to contend that
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
be handed over to the Judgment Debtors, the limitation period would get
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
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
submission on the ground that the receipts which are sought to be relied
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.
Secondly, the Learned Counsel appearing for the Decree Holder would
rightly rely upon clause (c) of Section 18 of the Limitation Act which
carves out an exception in so far as the application for execution of a
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
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
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.
For the above mentioned reasons there is no merit in the
18
above Petition. The impugned Judgment and Order of the Trial Court does
not merit any interference in the writ jurisdiction of this Court under
Article 227 of the Constitution of India. The above Writ Petition is
accordingly dismissed. Rule discharged with no order as to costs.
[R.M.SAVANT, J]
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