MOHINDER SINGH (DEAD) THROUGH LRS. versus PARAMJIT SINGH & ORS. on 28 March 2018

[2018] 7 S.C.R. 1027

MOHINDER SINGH (DEAD) THROUGH LRs.

v.

PARAMJIT SINGH & ORS.

(Civil Appeal No. 10222 of 2017)

MARCH 28, 2018

[DIPAK MISRA, CJI AND A. M. KHANWILKAR, J.]

Punjab Limitation (Custom) Act, 1920 – Art.2(b) of theSchedule and ss.5 and 8 – Limitation of suits relating to alienationof ancestral immovable property – Gift Deed by one ‘U’ in favourof predecessor of the respondents in respect of the land in question– Suit filed by original appellant for declaration that the gift deedwas void – Suit disposed of in terms of the compromise wherein theoriginal appellant was to be given the land in question after thedeath of ‘U’ – Execution petitions filed by original appellant,dismissed – Eventually, original appellant filed fresh suit forpossession – Plea of respondents that the suit was barred bylimitation – Contested by appellants relying on the second part ofArt.2(b) of the 1920 Act as also s.14 of the 1963 Act – Held: Secondpart of Art.2(b) postulates that the time from which limitation periodwould commence to file a suit for possession would be the date onwhich the “declaratory decree is obtained”– In executionproceedings, mere passing of the judgment by Court is not enoughbut a decree has to be drawn on the basis of declaratory judgmentwhich is then put into execution – In the present case, even thoughthe declaratory judgment was pronounced in the previous suit on20[th] August,1963, on the basis of compromise entered, thedeclaration could be given effect to only after the death of ‘U’–Decree being a conditional decree was enforceable only thereafter– Decree sheet drawn on 19[th ]August, 1972 and the suit forpossession filed thereafter on 11[th] June, 1974, was thus, within theprescribed period of limitation in terms of Art.2(b) of the Scheduleof 1920 Act – Further, s.14 of the 1963 Act is also attracted in thepresent case and the tests specified in s.14 are satisfied for showingindulgence to the plaintiff to exclude the period during which theplaintiff pursued execution proceedings for reckoning the periodof limitation for filing the suit for possession – Trial Court and

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Aappellate court right in decreeing the suit in favour of the originalappellant by rejecting the objection regarding the suit being barredby limitation – Limitation Act, 1963 – ss.14, 29(2) and Art.136 –Limitation Act, 1908 – ss.4 to 25.

Words & Phrases – ‘Obtained’ – Meaning of, in the contextBof Punjab Limitation (Custom) Act, 1920 – Art.2(b) of the Schedule.

Allowing the appeal, the Court

HELD: 1.1 Punjab Limitation (Custom) Act, 1920 wasenacted to amend and consolidate the law governing the limitationCof suits relating to alienations of ancestral immovable propertyand appointments of heirs by persons who follow custom in thearea to which the Act would apply. Section 8 of the 1920 Actpostulates that when any person obtains a decree declaring thatan alienation of ancestral immovable property or appointment ofan heir is not binding on him according to custom, the decreeDshall enure for the benefit of all persons entitled to impeach thealienation or the appointment of an heir. For such a declaratorysuit, the limitation is provided in the schedule. Article 2 of theSchedule also envisages that the period of limitation for a suit forpossession of ancestral immovable property which has been Ealienated, on the ground that alienation is not binding on theplaintiff according to custom, inter alia, within three years fromthe date the declaratory decree is obtained. In the present case,the declaratory decree was passed on 20[th ]August, 1963 on thebasis of the compromise between the original appellant and thepredecessor of the respondents. However, that being a conditionalFdecree, the right to sue for possession would not have accrueduntil the death of ‘U’ which happened only on 14[th] January, 1971.[Paras 13, 14] [1040-D-F; 1041-F, G]

1.2 The expression “declaratory decree is obtained” wouldtake within its fold the event of drawing of or preparation of theGdecree. Notably, the Trial Court as well as the Appellate Courthad accepted the stand taken by the plaintiff that the compromisedecree was prepared or drawn on 19[th] August, 1972. Eventhe High Court had not reversed that finding. [Para 15][1042-C]

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1.3 The expression “obtain”, as understood in commonparlance and defined in Concise Oxford English Dictionary, wouldmean - “acquire, secure, have granted to one”. This may alsoencompass obtaining a copy of the decree. In central legislation,the expression is made explicit by providing “for obtaining a copyof the decree”. The expression “obtained”, therefore, would pre-suppose, in the context of reckoning limitation period for filing asuit for possession, of securing a certified copy of the decree(decree-sheet) on the basis of which, the suit for possession couldbe instituted. In other words, the date on which the decree isdrawn would be the relevant date for commencement of limitationperiod. As in the case of execution proceedings, mere passing ofthe judgment by the Court is not enough but a decree has to bedrawn on the basis of such declaratory judgment which is thenput into execution. Applying the same analogy, if a suit forpossession is founded on a declaratory decree it could proceedonly after a drawn up decree on the basis of a declaratory judgmentof the Civil Court is made ready and obtained by the decree-holder. The expression “the declaratory decree is obtained”,therefore, assumes significance. If the legislature intended toprovide it differently, it could have couched the provision as “thedate on which the declaratory judgment is passed”. Thelegislature in enacting 1920 Act, however, consciously used theexpression “the declaratory decree is obtained”, whichintrinsically includes the date on which a formal decree is drawnor prepared and not merely the date on which a declaratoryjudgment is passed by the Court. Taking any other view wouldbe rewriting the expression “the declaratory decree is obtained”and doing violence to the legislative intent. Besides, theexpression “obtained” in Article 2(b) is prefixed by expression“is”; and further it follows with expression “whichever is later”.Even this would reinforce the position that the date on which thedeclaratory decree is drawn could ignite the period of limitationfor instituting a suit for possession and not a mere declaratoryjudgment rendered by the Court in the previous suit (fordeclaration simplicitor). Taking any other view will render thelast part of Article 2(b), providing for “whichever is later”nugatory and otiose. [Paras 16, 17] [1042-F-G; 1043-A;1043-B-E]

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A1.4 As in the present case, even though the declaratoryjudgment was pronounced by the Court in the previous suit on20th August, 1963, on the basis of compromise that declarationcould be given effect to only after the death of ‘U’. The decreeas passed was enforceable only thereafter. The decree sheethaving been made ready on 19[th] August, 1972 and the suit forBpossession filed three years thereafter on 11[th] June, 1974, wasthus within the prescribed period of limitation in terms of Article2(b) of the Schedule to the 1920 Act. [Para 20] [1045-C, D]

1.5 The fact situation of the present case would certainlysatisfy the tests specified in Section 14 of the 1963 Act, for showingCindulgence to the plaintiff to exclude the period during which theplaintiff pursued execution proceedings for reckoning the periodof limitation for filing the suit for possession on 11[th] June, 1974.The expanse of Section 14 of the Limitation Act,1963 is not limitedto mere jurisdictional issue but also other cause of a like nature.DWhat is posited by Section 14 of the 1963 Act is the exclusion oftime of proceeding bona fide in Court without jurisdiction or othercause of a like nature, for which the concerned Court is unable toentertain the lis. [Paras 22, 23] [1047-F; 1048-A]

1.6 Section 5 of the 1920 Act is explicit and it unambiguouslyEpostulates that the suit referred to in the First Schedule to thesaid Act would be governed by the provisions contained inSections 4 to 25 (inclusive) of the Limitation Act, 1908. Section14 of the 1963 Act would be attracted in the fact situation of thepresent case, in light of Section 5 of the 1920 Act and also Section29(2) of the 1963 Act coupled with the fact that there is no expressFprovision in the 1920 Act, to exclude the application of Section14 of the 1963 Act. Trial Court and the Appellate Court wereright in decreeing the suit in favour of the predecessor of theappellants by rejecting the objection regarding the suit beingbarred by limitation. The High Court committed manifest errorGin overturning the decisions of the Trial Court and the FirstAppellate Court. [Para 24, 26 and 28] [1048-C; 1049-A;1049-D, E]

Lala Balmukund (Dead) Through LRs. v.. Lajwanti andOrs. (1975) 1 SCC 725 : [1975] SCR 44 ; ConsolidatedEngineering Enterprises v. Principal Secretary,H

MOHINDER SINGH (DEAD) THROUGH LRs. v. PARAMJITSINGH & ORS.

Irrigation Department and Ors. (2008) 7 SCC 169 :[2008] 5 SCR 1108 ; Union of India and Ors. v. WestCoast Paper Mills Ltd. and Anr. (2004) 3 SCC 458 :[2004] 2 SCR 642 – relied on.

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W.B. Essential Commodities Supply Corpn. v..SwadeshAgro Farming & Storage Pvt. Ltd. and Anr. (1999) 8SCC 315 : [1999] 2 Suppl. SCR 399 ; CST v. ParsonTools and Plants (1975) 4 SCC 22 – referred to.

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CIVIL APPELLATE JURISDICTION: Civil Appeal No.10222of 2017.

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From the Order dated 25.04.2012 of the High Court of Punjaband Haryana at Chandigarh in RSA No.1446 of 2012.

Mahabir Singh, Sr. Adv., Ms. Preeti Singh, Rakesh Dahiya, GaganDeep Sharma, Ms. Swati Jindal, Advs. for the Appellants.

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Manoj Swarup, Devvrat, Soheb Rahman, Advs. for theRespondents.

The Judgment of the Court was delivered by

A. M. KHANWILKAR, J. 1. The singular question thatemerges for consideration in this appeal is: whether Section 14 of theLimitation Act, 1963 (for short “the 1963 Act”), has no impact in view ofthe provisions contained in Punjab Limitation (Custom) Act, 1920 (forshort “the 1920 Act”) and, if so, will it be applicable in the facts of thiscase?

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2. The relevant undisputed facts of this case can be delineated asunder:

A gift deed was executed by one Ujjagar Singh in respect of thelands, which included two parcels of lands, measuring 7 Kanals 17 Marlas H

Abearing Khasra No.46/16, situated in the revenue estate of Village Pandori,Tehsil Batala; and 11 Kanals 4 Marlas bearing Khasra Nos.25/4/5, No.25/4/1, 25/3/3 and 25/3/6 situated in the revenue estate of Village Ghuman,Tehsil Batala, District Amritsar (Punjab), to one Rura Singh son ofSurendra Singh (predecessor of the respondents) vide Gift Deed dated6[th] March, 1963. The said land was ancestral land in the hands of UjjagarBSingh wherein Mohinder Singh (predecessor of the appellants) and otherswere coparceners. Resultantly, the original appellant Mohinder Singhfiled a suit for declaration that the gift deed was void, being Suit No.367of 1963 before the Sub Judge, First Class, Batala. During the pendencyof the said suit, a compromise was arrived at between Rura SinghC(predecessor of the respondents) and Mohinder Singh (predecessor ofthe appellants). The parties made statements before the Trial Court thatas per the compromise, Mohinder Singh was to be given the landcomprised in Khasara No.46/16 situated at Village Pandori, Tehsil Batalaand 26/4/2/4, 26/3/3 Min East, 26/4/1, 26/3/3 Min West of Village Ghumanafter the death of Ujjagar Singh out of the entire land and MohinderDSingh also gave up his house. A statement was made by Rura Singhbefore the Court which reads thus:

“Stated that decree for declaration for ownership regarding Khasrano. 46/16 situated at Pandori, No.26/4/2/4, 26/3/3 Min. East. 26/4/1, 26/3/3 Min West situated at Ghuman be passed in favour ofEthe plaintiff. Remaining suit be dismissed. Parties shall bear theirown expenses.”

3. On the basis of the said arrangement, the Court disposed of thesuit on 20[th] August, 1963 on the basis of compromise in the followingterms:F

“In view of the above statements of the parties, the suit as prayedfor is decreed herewith solely in respect of khasra number 46/16of village Pandori and 26/4/2/4, 26/3/3 Min east, 26/4/1, 26/3/3Min west of village Ghuman against the defendant no.2. The suitagainst defendant No.1 will stand dismissed. The parties willGbear their own costs.”

4. Mohinder Singh then took out execution petition No.430 of 1964on 23[rd] December, 1964. The said execution petition was dismissed beingpremature, by the Executing Court vide order dated 7[th] August, 1965which reads thus:

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“COPY OF ORDER: As per decision of D.H. counsel theexecution is dismissed as pre-mature and be consigned record-room on the Satisfied.”

5. The said Ujjagar Singh died on 14[th] January, 1971, whereafterMohinder Singh took out second execution petition on 18[th] February,1971. He also took out an application for summoning the original filewith the decree sheet. This application was filed on 23[rd] August, 1971before the Executing Court. It then transpired that the decree wasprepared and the decree sheet was drawn on 19[th] August, 1972. However,the execution petition instituted by Mohinder Singh came to be dismissedfor default on 2[nd] February, 1973. On the same day, Mohinder Singhtook out third execution petition which was dismissed on 2[nd] February,1974 on the ground that the same was not maintainable. The relevantportion of the order passed by the Executing Court in ExecutionApplication No.11/1973 reads thus:

“3. The following issue was framed:-

1) Whether the decree is executable? O.P.D.H.

4. From the perusal of the decree sheet copy of which is Ex.D.H.1. it is abundantly clear that the decree which is sought to beexecuted is a declaratory one and it ensure to the benefit of thedecree holder after the death of the vendor. The decree-holdercan only file a separate suit if so advised for possession ofthe suit property but the execution is not maintainable. Thedeclaratory decree cannot be executed and the possessionof the land in question cannot be granted to the decreeholder in execution of the same. This issue is decided againstthe decree-holder.

In view of my above said finding the application is dismissed.File be consigned to the Record Room.”

6. Taking cue from the observations in this order and left with noother option for getting possession of the land referred to in the decreepassed in suit No.367 of 1963, Mohinder Singh filed a fresh suit on 11[th]June, 1974, in the Court of Civil Judge, Junior Division, Batala, beingC.S. No.173/1974. He asserted that the declaratory decree was preparedon 19[th] August, 1972 and because of the order passed by the Executing A

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ACourt on 2[nd] February, 1974, he had to file the suit for possession on thebasis of the cause of action which had arisen on 19[th] August, 1972 andbecause of the refusal of the respondents (defendants) to deliver thesuit lands to him. The respondents filed written statement in which theyadmitted the fact that the decree was prepared on 19[th] August, 1972, butasserted that the present suit was barred by limitation as the same wasBfiled after lapse of 3 years from the date of death of Ujjagar Singh. Inthat, Ujjagar Singh died on 14[th] January, 1971 whereas the suit has beenfiled on 11[th] June, 1974. Further, the factum of preparation of decree on19[th] August, 1972 would be of no avail as the decree had been passed inthe previous suit on 20[th] August, 1963. The date on which the previousCsuit was decided would be the relevant date. However, subsequently therespondents (defendants) filed additional written statements so as towithdraw the admission made earlier that the decree sheet was preparedon 19[th] August, 1972.

7. The Civil Judge, Junior Division, Batala vide his judgment datedD20[th] May, 2008 negatived the objection taken by the respondents regardingthe suit being barred by limitation. The relevant portion of the judgmentof the Trial Court reads thus:

“13. Article 2(b) of the Punjab Limitation (Customs) Act 1920provides the period of limitation of three years for a suit forEpossession of an ancestral immovable property which has beenalienated, on the ground that alienation is not binding on the plaintiffaccording to custom where such declaratory decree is obtained.The time from which period of limitation is to begin is the date onwhich right to sue accrues or the date on which declaratory decreeis obtained whichever is later. It is the case of the defendantsFthat Ujjagar Singh died on 14.01.1971 the entry of the death ofUjjagar Singh is also placed on the record as Ex.D1 and the periodof limitation is to be computed from 14.01.1971, when the right tosue accrues to the plaintiff on the death of Ujjagar Singh and thepresent suit is not within the period of three years as the suit hasGbeen filed on 11.06.1974. However the article 2(b) of thePunjab Limitation (Customs) Act 1920, provides that periodof three years for the institution of the suit is to beascertained from the date on which right to sue accrues orthe date on which declaratory decree is obtained whichever H

is later. It is claimed by the plaintiff that decree sheet wasprepared on 19.08.1972, the fact which is admitted by thedefendants while filing the original written statement.However, it is argued by counsel for the defendants that order inthe execution application No. 32 of 1971, dated 19.8.1972 on whichthe decree is alleged to have been prepared by the plaintiff is infact with regard to the dismissal of the said execution applicationdue to the non appearance of the parties. I am of the consideredopinion that only on the ground that said order dated19.08.1972 relates with the dismissal of the execution itcannot be said that decree sheet was not prepared duringthe proceedings of the said execution. It has already beenheld that the decree sheet was prepared during theexecution bearing No. 32 of 1971. Even if it is consideredthat the decree sheet was prepared on dated 29.07.1972and not on 19.08.1972 as discussed above even then thepresent suit is within the period of limitation i.e. 3 years asper article 2(b) of the Punjab Limitation (Customs) Act 1920.

14. It is also argued by counsel for the defendants that while filingthe replication inconsistent pleas taken by the plaintiff from theplaint already fled by him and the replication filed by the plaintiffcan be taken into consideration. In support of his contention,counsel for the defendants has relied upon 2001 (3) Civil CourtCases 565 (Rajasthan) Gurjant Singh Versus Krishan Chanderand Ors. But I am of the considered view that in fact the defendantsthemselves have taken the inconsistent pleas by filing the amendedwritten statement from the original written statement. In theamended written statement it is claimed by the defendants that nodecree sheet was prepared on 19.08.1972 and the decree sheetof Civil suit No. 367 of 14.06.1963 has been passed on 20.8.1963itself. The plaintiff has only contested the pleadings of theamended written statement by filing the replication and accordinglyit cannot be said that the plaintiff has taken the inconsistent pleasfrom the pleas already taken by him in his plaint, while filing thereplication.

15. In view of discussion above, this issue No. 1 is decided infavour of the plaintiff. The suit of the plaintiff is also held within AB

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Athe period of limitation and issue No.2 is also decided in favour ofthe plaintiff and against the defendants.”

8. Aggrieved, the respondents (defendants) filed a first appealbefore the District Court being Civil Appeal No.373 of 2008 (12[th] June,B2008) which was heard by the Additional District Judge, Gurdaspur andwas finally dismissed on 2[nd] February, 2012. The District Court rejectedthe argument of the respondents on the issue of suit being barred bylimitation, by observing thus:

“…But learned counsel for the appellants has contended thatCdecree sheet may be prepared at any time but it relates back tothe date of judgment. Though it is a settled proposition of law thatdecree follows the judgment, but in the instant case there is nofault on behalf of respondent no.1 who has able to prove on recordthat when he filed the suit while challenging the gift deed whichwas decided on the basis of the compromise and statements ofDthe parties on 20.08.1963 and thereafter he filed an applicationfor execution of the same in which objections were raised byRura through counsel and execution was dismissed beingpremature and after the death of Ujjagar Singh in the year 1971he again moved an execution applicable in which the fresh decreeEsheet was ordered to be prepared which was ultimately preparedin the presence of the parties and during those proceedings nocopy of the decree sheet which has now been referred by learnedcounsel for the appellants has placed on file nor any such objectionhas been raised that decree sheet has already been prepared andmore so, the decree sheet was ordered to be prepared in presenceFof both the parties. Later on execution was dismissed on filing ofobjections by appellants by learned Sub Judge 1[st] Class, Batalawith the observation that it enures to the benefit of the decreeholder after the death of the vendor and same was ultimatelyordered to be dismissed on 02.02.1974 and if one computed theGperiod of limitation from the day of preparation of decree i.e. inthe year 1972 because the day when the execution applicationhas been dismissed by Court of Shri A.S. Rampal, the then SubJudge 1[st] Class, Batala, by observing then the suit of respondentno.1 is certainly within limitation.”

9. The respondents then preferred a second appeal before theHigh Court of Punjab and Haryana at Chandigarh, being Regular SecondAppeal No.166 of 2012 (O&M), which has been allowed by the learnedSingle Judge of the High Court, vide judgment dated 25[th] April, 2012.The High Court accepted the argument of the respondents in the followingwords:

“I have carefully considered the aforesaid contentions. It isundisputed that the earlier suit was decided on the basis ofcompromise vide judgment dated 20.08.1963. From the judgmentsof the courts below, it appears that formal decree in the said suitwas not drawn immediately but was drawn on 19.08.1972 whenplaintiff moved for the same because while seeking execution ofthe said decree, the plaintiff learnt that formal decree had notbeen drawn. However, formal decree drawn on 19.08.1972on the basis of compromise judgment dated 20.08.1963shall relate back to the date of judgment i.e. 20.8.1963.Merely because formal decree was drawn on 19.08.1972, itcannot be said that limitation period started on 19.08.1972.On the contrary, earlier declaratory decree was passed videjudgment dated 20.08.1963 and therefore, limitation periodin the instant case commenced on 14.01.1971 on the deathof Ujjagar Singh. Consequently, suit filed on 11.06.1974i.e. after expiry of limitation period of three years is patentlybarred by limitation. Finding of the courts below to thecontrary is patently perverse and illegal and, therefore,unsustainable.

Substantial question of law arises for determination in this secondappeal as to whether suit is barred by limitation and finding of thecourts below holding the suit to be within the limitation is perverseand illegal. The said substantial question of law is answered infavour of defendants/appellants holding that the suit is barred bylimitation.

Resultantly the instant second appeal is allowed. Judgments anddecrees of both the courts below are set aside. Suit filed by therespondent No.1-plaintiff stands dismissed. The parties are,however, left to suffer their respective costs throughout.”

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A10. In this backdrop, the present appeal, by special leave, hasbeen filed by the original plaintiff Mohinder Singh who died during thependency of the appeal before this Court and consequently, his heirs andlegal representatives have been brought on record to espouse the cause.According to the appellants, the suit for possession was filed by MohinderSingh on the basis of the declaratory decree which was within theBlimitation period of three years as provided by Article 2(b) of the Scheduleto the 1920 Act. Inasmuch as, Section 2(b) of the said Act stipulates thatthe limitation would commence from the date on which the right to sueaccrues or the date on which the declaratory decree is obtained,whichever is later. In the present case, the right to sue accrued after theCdeath of Ujjagar Singh on 14[th] January, 1971. However, the plaintiff wasadvised to pursue execution of the decree passed in the previous SuitNo.367 of 1963 and was driven to file the present suit on 11[th] June, 1974after the order was passed by the Executing Court on 2[nd] February,1974. Nevertheless, as the decree sheet was prepared only on 19[th]August, 1972, the suit filed on 11[th] June, 1974 was within limitation inDterms of Article 2(b) of the 1920 Act. To buttress this submission reliancehas been placed on the decision in Lala Balmukund (Dead) ThroughL.Rs. Vs. Lajwanti and Ors.[1], wherein it has been held that “obtaining”the copy means drawing of a decree. That happened in this case on 19[th]August, 1972 and for which reason the suit filed on 11[th] June, 1974 wasEwithin limitation. Reliance has been placed on the contemporaneousrecord, including written statement and the appeal memo filed beforethe First Appellate Court by the respondents (defendants), admittingpreparation of decree on 19[th] August, 1972. Reliance is also placed onSection 14 of the 1963 Act for exclusion of time during which MohinderSingh (plaintiff) had bona fide pursued the execution proceedings. It isFsubmitted that Section 14 of the 1963 Act will be attracted not onlybecause of Section 29(2) of the 1963 Act, but also because of Section 5of the 1920 Act expressly providing for application of Sections 4 to 25 ofthe 1963 Act. Reliance is placed on a three-Judge Bench decision of thisCourt in Consolidated Engineering Enterprises Vs. PrincipalGSecretary, Irrigation Department and Ors.,[2] which has enunciatedthat a liberal approach should be adopted by the Court, unless theapplication of Section 14 is expressly excluded by the special law. It iscontended that although the first execution petition moved by the plaintiff 1 (1975) 1 SCC 725H2 (2008) 7 SCC 169

was dismissed as premature as also the subsequent execution petitionwas dismissed on 2[nd] February, 1974 on the ground that the proper remedywas to file a suit for possession, the defendants neither raised any objectionnor challenged the said orders. On the other hand, the plaintiff actedupon the said orders and eventually filed a suit for possession on 11[th]June, 1974. Relying on the decision of this Court in Union of India andOrs. Vs. West Coast Paper Mills Ltd. and Anr.[3], it is submitted thatthe conclusion reached by the Trial Court and commended to the FirstAppellate Court, is the correct approach in the fact situation of the presentcase. Taking any other view would be awarding bonus to the respondentsdespite Rura Singh (predecessor of respondents) having agreed for givingpossession of the subject properties to Mohinder Singh (predecessor ofthe appellants) vide compromise decree dated 20[th] August, 1963.

11. The respondents, on the other hand, submitted that the HighCourt has justly reversed the concurrent judgment of two Courts on theissue of suit being barred by limitation after having found that the decreedrawn on 19[th] August, 1972 on the basis of the compromise judgmentdated 19[th] August, 1963 must relate back to the date of the judgment i.e.19[th] August, 1963. Thus, mere preparation or drawing of a formal decreeon 19[th] August, 1972 would be of no avail to the appellants as the limitationin the present case had commenced consequent to the death of UjjagarSingh on 14[th] January, 1971 but the suit was filed on 11[th] June, 1974 afterthe expiry of 3 years’ limitation period. It is submitted that the partiesare governed by the provisions of Article 2(b) of the Schedule to the1920 Act and the plaintiff failed to exercise due diligence for whichreason cannot take advantage in calculating the limitation period from19[th] August, 1972. It is contended that Section 14 of the 1963 Act waslimited to accord protection to a litigant against the bar of limitation whenhe institutes civil proceeding, which by reason of some technical defectscannot be decided on merits and is dismissed. To buttress this submission,reliance has been placed on paragraphs 21, 22 and 31 in particular, ofthe decision in the case of Consolidated Engineering Enterprises(supra). According to the respondents, the subject suit was barred bylimitation as it was not instituted within the limitation period specified inArticle 2(b) of the Schedule to the 1920 Act and provisions of Section 14will be of no avail to the plaintiff. Furthermore, no explanation orjustification whatsoever has been offered by the plaintiff for the period 3 (2004) 3 SCC 458

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Abetween 2[nd] February, 1974 (when the third execution petition wasdismissed) and 11[th] June, 1974 (when the suit for possession was filedby the plaintiff). The question of showing any indulgence, much less byinvoking Section 14 of the 1963 Act, does not arise. The respondentspray for dismissal of this appeal and affirmation of the view taken by theHigh Court whilst allowing the second appeal filed by them.B

12. We have heard Mr. Mahabir Singh, learned senior counselappearing for the appellants and Mr. Manoj Swarup, learned counselappearing for the respondents.

C13.There is no dispute that the issue of suit being barred by limitationwill have to be answered with reference to the special law as applicablei.e. the 1920 Act. The said Act was enacted to amend and consolidatethe law governing the limitation of suits relating to alienations of ancestralimmovable property and appointments of heirs by persons who followcustom in the area to which the Act would apply. Section 8 of the 1920DAct postulates that when any person obtains a decree declaring that analienation of ancestral immovable property or appointment of an heir isnot binding on him according to custom, the decree shall enure for thebenefit of all persons entitled to impeach the alienation or the appointmentof an heir. For such a declaratory suit, the limitation is provided in theschedule. Article 2 of the Schedule also envisages that the period ofElimitation for a suit for possession of ancestral immovable property whichhas been alienated, on the ground that alienation is not binding on theplaintiff according to custom, inter alia, within three years from thedate the declaratory decree is obtained. Section 8 of the 1920 Act readsthus:F

“8. Benefit of declaratory decree.- When any person obtainsa decree declaring that an alienation of ancestral immoveableproperty or the appointment of an heir is not binding on himaccording to custom, the decree shall enure for the benefit of allpersons entitled to impeach the alienation or the appointment ofGan heir.”

Article 2 of the Schedule reads thus:

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Description of suit Period of Time from Limitation which period begins to run 1.xxx B2.A suit for possession of ancestral immovable property which has been alienated on the ground that the alienation is not binding on the plaintiff according to custom- C(a) If no declaratory 6 Years As above decree of the nature referred to in Article 1 is obtained (b) If such declaratory 3 years The date on which the decree is obtained right to sue accrues or the date on which the Ddeclaratory decree is obtained, whichever is later. 3.xxx xxx xxx 4.xxx xxx xxx E5.xxx xxx xxx 6.xxx xxx xxx

14. In the present case, the declaratory decree has been passedon 20[th] August, 1963 on the basis of the compromise between the plaintiff- Mohinder Singh (predecessor of the appellants) and defendant - RuraSingh (predecessor of the respondents). However, that being a conditionaldecree, the right to sue for possession would not have accrued until thedeath of Ujjagar Singh which happened only on 14[th] January, 1971. Theappellants are not invoking the first part of Article 2(b), which postulatesthat the time from which period commences would be the date on whichthe right to sue accrues. First, because declaratory decree was passedon 20.8.1963; second, because it was a conditional decree and wasunenforceable during the life time of Ujjagar Singh; third, because Ujjagar F

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ASingh died on 14[th] January, 1971 but the fresh suit was filed on 11[th] June,1974 due to the observation made by the Executing Court in its orderdated 2[nd] February, 1974. Resultantly, the appellants are relying on thesecond part of Article 2(b), which postulates that the time from whichperiod would commence to file a suit for possession would be the dateon which the “declaratory decree is obtained”.B

15. The substratum of the claim of the plaintiff is founded on thefactum of date on which the decree sheet in respect of the compromisedecree was prepared and drawn on 19[th] August, 1972. The expression“declaratory decree is obtained” would take within its fold the event ofdrawing of or preparation of the decree. Notably, the Trial Court as wellCas the Appellate Court has accepted the stand taken by the plaintiff thatthe compromise decree was prepared or drawn on 19[th] August, 1972.Even the High Court has not reversed that finding. The High Court,however, has held that drawing of a formal decree on 19[th] August, 1972will be of no avail as it would relate back to the compromise decreeDpassed on 20[th] August, 1963. That would not save the limitation periodfor filing the suit for possession. Whereas, the cause of action for filingsuch suit had arisen on 14[th] January, 1971 on the death of Ujjagar Singhbut the suit was filed after the expiry of limitation period of three yearson 11[th] June, 1974.E16. In this backdrop, the moot question in the present case is the

E16. In this backdrop, the moot question in the present case is themeaning of the expression “the declaratory decree is obtained”. Does itmean the date of pronouncement of the judgment i.e. 20[th] August, 1963or the date of preparation of decree sheet i.e. 19[th] August, 1972? Theexpression “obtain”, as understood in common parlance and defined inConcise Oxford English Dictionary, would mean - “acquire, secure, haveFgranted to one”. This may also encompass obtaining a copy of the decree.In central legislation, the expression is made explicit by providing “forobtaining a copy of the decree”, as was considered in Lala Balmukund(supra). The expression “obtained”, therefore, would pre-suppose, inthe context of reckoning limitation period for filing a suit for possession,Gof securing a certified copy of the decree (decree-sheet) on the basis ofwhich, the suit for possession could be instituted. In other words, thedate on which the decree is drawn would be the relevant date forcommencement of limitation period. As in the case of executionproceedings, mere passing of the judgment by the Court is not enough but a decree has to be drawn on the basis of such declaratory judgmentwhich is then put into execution. Applying the same analogy, if a suit forpossession is founded on a declaratory decree it could proceed onlyafter a drawn up decree on the basis of a declaratory judgment of theCivil Court is made ready and obtained by the decree-holder.

17. The expression “the declaratory decree is obtained”, therefore,assumes significance. If the legislature intended to provide it differently,it could have couched the provision as “the date on which the declaratoryjudgment is passed”. The legislature in enacting 1920 Act, however,consciously used the expression “the declaratory decree is obtained”,which intrinsically includes the date on which a formal decree is drawnor prepared and not merely the date on which a declaratory judgment ispassed by the Court. Taking any other view would be rewriting theexpression “the declaratory decree is obtained” and doing violence tothe legislative intent. Besides, the expression “obtained” in Article 2(b)is prefixed by expression “is”; and further it follows with expression“whichever is later”. Even this would reinforce the position that the dateon which the declaratory decree is drawn could ignite the period oflimitation for instituting a suit for possession and not a mere declaratoryjudgment rendered by the Court in the previous suit (for declarationsimplicitor). Taking any other view will render the last part of Article2(b), providing for “whichever is later” nugatory and otiose.

18. The appellants have justly relied on the exposition in the caseof Lala Balmukund (supra), (in particular paragraphs 20 and 21), whichhas answered similar issue regarding the date of obtaining decree andwhile explicating the term “obtaining a copy”, has held that the time willstart only after the decree is drawn. It is apposite to reproduce the dictumin paragraph 19, which reads thus:

“19. We do not wish to encumber this judgment with a detaileddiscussion of all the citations and the reasoning advanced thereinin support of one or the other view. It will be sufficient to say thatupon the language of Section 12(2) both the constructions arepossible, but the one adopted by the majority of the courts, appearsto be more consistent with justice and good sense. The LimitationAct deprives or restricts the right of an aggrieved personto have recourse to legal remedy, and where its language A

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Ais ambiguous, that construction should be preferred whichpreserves such remedy to the one which bars or defeats it.A court ought to avoid an interpretation upon a statute oflimitation by implication or inference as may have apenalising effect unless it is driven to do so by theirresistible force of the language employed by theBLegislature.”

19. It may be useful to advert to the elucidation in W.B. EssentialCommodities Supply Corpn. Vs. Swadesh Agro Farming & StorageCPvt. Ltd. and Anr.[4]. Indeed, in that case the factual narrative on whichthe question was examined was somewhat different, namely, whetherthe period of limitation under Article 136 of the 1963 Act will start fromthe date of the decree or from the date when the decree is actuallydrawn up and signed by the Judge, as articulated in paragraph 2 of thejudgment. In paragraph 12 of the judgment this Court observed thus:

D“12. There may, however, be situations in which a decreemay not be enforceable on the date it is passed. First, acase where a decree is not executable until the happeningof a given contingency, for example, when a decree forrecovery of possession of immovable property directs thatEit shall not be executed till the standing crop is harvested,in such a case time will not begin to run until harvesting ofthe crop and the decree becomes enforceable from thatdate and not from the date of the judgment/decree. Butwhere no extraneous event is to happen on the fulfillmentof which alone the decree can be executed it is not aFconditional decree and is capable of execution from the verydate it is passed (Yeshwant Deorao v. WalchandRamchand[5]). Secondly, when there is a legislative bar for theexecution of a decree then enforceability will commence whenthe bar ceases. Thirdly, in a suit for partition of immovableGproperties after passing of preliminary decree when, in finaldecree proceedings, an order is passed by the courtdeclaring the rights of the parties in the suit properties, itis not executable till final decree is engrossed on non- 4 (1999) 8 SCC 315H5 AIR 1951 SC 16

judicial stamp paper supplied by the parties within the timespecified by the Court and the same is signed by the Judgeand sealed. It is in this context that the observations ofthis Court in Shankar Balwant Lokhande v. ChandrakantShankar Lokhande[6] have to be understood. Theseobservations do not apply to a money decree and, therefore,appellant can derive no benefit from them.”

(emphasis supplied)

20. As in the present case, even though the declaratory judgmentwas pronounced by the Court in the previous suit on 20[th] August, 1963,on the basis of compromise entered into by Mohinder Singh (originalplaintiff) and Rura Singh (original defendant), that declaration could begiven effect to only after the death of Ujjagar Singh. The decree aspassed was enforceable only thereafter. Suffice it to observe that thedecree sheet having been made ready on 19[th] August, 1972 and the suitfor possession filed three years thereafter on 11[th] June, 1974, was thuswithin the prescribed period of limitation in terms of Article 2(b) of theSchedule to the 1920 Act.

21. Assuming for the sake of argument that the three years’ periodprovided in Article 2(b) ought to be reckoned from the date of death ofUjjagar Singh i.e. 14[th] January, 1971, the question would be whether theprovisions of Section 14 of the 1963 Act would come to the aid of theplaintiff (appellants). The purport of Section 14 of the 1963 Act hasbeen delineated in the case of Union of India and Ors. Vs. West CoastPaper Mills Ltd. (supra). The Court while considering the question asto whether the suit was barred by limitation examined the question whetherSection 14 of the 1963 Act was applicable to that case. In paragraph 14of the judgment, after referring to the decision in CST Vs. Parson Toolsand Plants [7], this Court observed thus:

“14. In the submission of Mr. Malhotra, placing reliance on CSTv. Parson Tools and Plants[8], to attract the applicability of Section14 of the Limitation Act, the following requirements must bespecified: (SCC p.25, para 6)

‘6. (1) both the prior and subsequent proceedings are civilproceedings prosecuted by the same party; 6 (1995) 3 SCC 413

7 (1975) 4 SCC 22

8 (1975) 4 SCC 22 : 1975 SCC (Tax) 185

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A(2) the prior proceedings had been prosecuted with due diligenceand in good faith;

(3) the failure of the prior proceedings was due to a defect ofjurisdiction or other case of a like nature;

(4) both the proceedings are proceedings in a Court.’

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In the submission of the learned Senior Counsel, filing of civil writpetition claiming money relief cannot be said to be a proceedinginstituted in good faith and secondly, dismissal of writ petition onthe ground that it was not an appropriate remedy for seeking moneyrelief cannot be said to be ‘defect of jurisdiction or other cause ofCa like nature’ within the meaning of Section 14 of the LimitationAct. It is true that the writ petition was not dismissed by the HighCourt on the ground of defect of jurisdiction. However, Section14 of the Limitation Act is wide in its application, inasmuchas it is not confined in its applicability only to cases of defectDof jurisdiction but it is applicable also to cases where theprior proceedings have failed on account of other causes oflike nature. The expression ‘other cause of like nature’came up for the consideration of this Court in RoshanlalKuthalia v. R.B. Mohan Singh Oberai[9] and it was held thatSection 14 of the Limitation Act is wide enough to coverEsuch cases where the defects are not merely jurisdictionalstrictly so called but others more or less neighbours to suchdeficiencies. Any circumstances, legal or factual, whichinhibits entertainment or consideration by the Court of thedispute on the merits comes within the scope of the SectionFand a liberal touch must inform the interpretation of theLimitation Act which deprives the remedy of one who has aright.”

22. The expanse of Section 14 of the Act, therefore, is not limitedGto mere jurisdictional issue but also other cause of a like nature. Takingcue from this decision, the appellant would contend that the plaintiffimmediately after compromise judgment was pronounced on 20[th] August,1963 took recourse to Execution Petition No.433/1964 on 23[rd] December,1964 but the same was dismissed by the Executing Court on 7[th] August, H9(1975) 4 SCC 628

1965, as being premature. The plaintiff verily believed that the executionof the decree passed in the previous suit would result in getting possessionof the property albeit after the death of Ujjagar Singh. Consequently,after the death of Ujjagar Singh on 14[th] January, 1971, the plaintiff movedsecond execution petition on 18[th] February, 1971 and in those proceedingsmoved an application for summoning the file with a decree sheet. Ittranspired that the decree was drawn and the decree sheet was madeready on 19[th] August, 1972, but the said execution petition stood dismissedfor default on 2[nd] February, 1973. For that reason, the appellant on thesame day moved the third execution petition i.e. on 2[nd] February, 1973which, however, was dismissed on 2[nd] February, 1974 on the ground thatthe remedy for the plaintiff to get possession of the suit property was tofile a suit for possession on the basis of the declaratory decree. It is onlythereafter the plaintiff resorted to the subject suit, being Civil Suit No.173/1974 filed on 11[th] June, 1974.

23. Notably, the respondents did not question the decisions of theExecuting Court – be it on the ground that it was premature or on theground that the remedy for the plaintiff was to file a suit for possession.Indubitably, the proceedings such as execution petition resorted to bythe plaintiff would be a civil proceeding. Further, the Trial Court as wellas the Appellate Court have found that the plaintiff was pursuing thatremedy in good faith. That finding has not been disturbed by the HighCourt. The reasons which weighed with the Executing Court fordismissing the execution petitions were just causes covered by theexpression “defect of jurisdiction” and in any case, “other cause of alike nature”, ascribed by the Executing Court for its inability to grantrelief of possession of suit property to the plaintiff. The fact situation ofthe present case would certainly satisfy the tests specified in Section 14of the 1963 Act, for showing indulgence to the plaintiff to exclude theperiod during which the plaintiff pursued execution proceedings forreckoning the period of limitation for filing the suit for possession on 11[th]June, 1974. The argument of the respondents that the plaintiff did notoffer any explanation for the period from 2[nd] February, 1974 till 11[th]June, 1974 does not impress us at all. That period is only of four monthsand once the period from 14[th] January, 1971 till 2[nd] February, 1974 wasto be excluded as being time spent by the plaintiff in pursuing other civilproceedings in good faith, there would be no delay in filing of the suit.

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AWhat is posited by Section 14 of the 1963 Act is the exclusion of time ofproceeding bona fide in Court without jurisdiction or other cause of alike nature, for which the concerned Court is unable to entertain the lis.The fact that no explanation whatsoever has been offered for the periodfrom 2[nd] February, 1974 to 11[th] June, 1974, therefore, would not whittledown the rights of the plaintiff to institute and pursue suit for possessionBof the subject land on the basis of declaratory decree.

24. That takes us to the last question as to whether Section 14 ofthe 1963 Act has any application to the case on hand. This issue neednot detain us. Section 5 of the 1920 Act is explicit and it unambiguouslypostulates that the suit referred to in the First Schedule to the said ActCwould be governed by the provisions contained in Sections 4 to 25(inclusive) of the Limitation Act. Section 5 of the 1920 Act reads thus:

“5. Dismissal of suits of the descriptions specified in theAct if instituted after the period of limitation thereinprescribed has expired.- Subject to the provision contained inDsections 4 to 25 (inclusive), of the Indian Limitation Act, 1908,and notwithstanding anything to the contrary contained in the firstschedule of the said Act, every suit, of any description specifiedin the schedule annexed to this Act, instituted after the period oflimitation prescribed therefor in the schedule shall be dismissed,Ealthough limitation has not been set up as a defence.”

25. It may be apposite to also advert to Section 29(2) of the 1963Act, the same reads thus:

“29. Savings.- (1) xxx

(2) Where any special or local law prescribes for any suit, appealFor application a period of limitation different from the periodprescribed by the Schedule, the provisions of section 3 shall applyas if such period were the period prescribed by the Schedule andfor the purpose of determining any period of limitation prescribedfor any suit, appeal or application by any special or local law, theGprovisions contained in sections 4 to 24 (inclusive) shall apply onlyin so far as, and to the extent to which, they are not expresslyexcluded by such special or local law.

(3) xxx

(4) xxx.”H

26. We find force in the submission of the appellants that Section14 of the 1963 Act would be attracted in the fact situation of the presentcase, in light of Section 5 of the 1920 Act and also Section 29(2) of the1963 Act coupled with the fact that there is no express provision in the1920 Act, to exclude the application of Section 14 of the 1963 Act.

27. Both sides have relied on the exposition in the case ofConsolidated Engineering Enterprises (supra). In that case, the Courtnoted that Section 14 of the 1963 Act envisages that it is a provision toafford protection to a litigant against bar of limitation when he institutesa proceeding which by reason of some technical defects cannot bedecided on merits and is dismissed. While considering the provisions ofSection 16 and its application, this Court observed that a proper approachwill have to be adopted and the provisions will have to be interpreted soas to advance cause of action rather than abort the proceedings, inasmuchas the section is intended to provide relief against bar of limitation incases of mistaken remedy or selection of a wrong forum.

28. It is not necessary to dilate on this judgment any further, havingalready observed that both the Trial Court and the Appellate Court wereright in decreeing the suit in favour of the original plaintiff (predecessorof the appellants) by rejecting the objection regarding the suit being barredby limitation. The High Court committed manifest error in overturningthe decisions of the Trial Court and the First Appellate Court, merely onthe ground that the formal decree drawn on 19[th] August, 1972 on thebasis of compromise judgment dated 20[th] August, 1963 must relate backto the date of the judgment i.e. 20[th] August, 1963 and would not arrestthe limitation period until the preparation of the decree on 19[th] August,1972.

29. In view of the above, we allow this appeal and set aside theimpugned judgment and order and decree passed by the High Court andinstead, restore the judgment and decree passed by the Trial Court asaffirmed by the First Appellate Court.

30. Accordingly, this appeal is allowed with no order as to costs.

Divya Pandey

Appeal allowed.

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