Whether order for interim maintenance can be executed within twelve years from date of order?

It is fallacious to appreciate that the order or decree passed by the Court under the Hindu Marriage Act as well as by the Family Court, would be enforced under the provisions of Article 137 of the Limitation Act. There is specific provision under Article 136 of the Part I of the Third Division of Schedule of Limitation Act for period of limitation to execute the decree or order of the Civil Court. It would be reiterated that the decree or order under Hindu Marriage Act as well as passed by the Family Court all are having same force and effect as a decree or order of the Civil Court and liable to be executed in the same mode and manner as prescribed under the Code of Civil Procedure for execution of decree or order of the Civil Court. The provision of Article 137 is applicable to the proceedings of "any other application" for which no period of limitation is given elsewhere in the Third Division to the Schedule. As referred above, when the specific period of 12 years is prescribed for execution of decree/order of Civil Court, the same provision of 12 years period of limitation is essential to be made applicable to the decree/order by the Family Court or by any Court under Hindu Marriage Act. The procedure meant for execution of decree/order of Civil Court is required to be adopted for execution of decree/order of Family Court or any Court under Hindu Marriage Act. Both the procedures for execution are to be considered analogous with each other. Therefore, when there is a limitation period provided under Article 136 for execution of decree/order of the Civil Court, the decree/order of Family Court under Hindu Marriage Act are permitted to be executed within 12 years period with same force and effect as well as with the same mode and manner prescribed for execution of decree/order of Civil Court. In the result, the procedure would be governed by Article 136 and not by the provision of Article 137 of Limitation Act. The Single Judge of the High Court of Orissa in the case of V. Krishnaveni Vs. V. Narasingha Rao, MANU/OR/0174/1984 : 1984 Law Suit (Ori.) 148 also held that the order under Section 24 of the Act is enforceable within a period of 12 years under Article 136 of the Limitation Act.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 11581 of 2017

Decided On: 07.08.2018

Parag Subhash Parelkar Vs. State of Maharashtra and Ors.

Hon'ble Judges/Coram:

K.K. Sonawane, J.

Citation: 2018(6) MHLJ 504,AIR2019 Bom 9

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Whether limitation for execution of partition decree will commence from date when decree was engrossed on stamp paper?

The engrossment of the final decree in a suit for partition would relate back to the date of the decree. The beginning of the period of limitation for executing such a decree cannot be made to depend upon date of the engrossment of such a decree on the stamp paper. The date of furnishing of stamp paper is an uncertain act, within the domain, purview and control of a party. No date or period is fixed for furnishing stamp papers. No rule has been shown to us requiring the court to call upon or give any time for furnishing of stamp paper. A party by his own act of not furnishing stamp paper cannot stop the running of period of limitation. None can take advantage of his own wrong. The proposition that period of limitation would remain suspended till stamp paper is furnished and decree engrossed thereupon and only thereafter the period of twelve years will begin to run would lead to absurdity. In Yeshwant Deorao Deshmukh v. Walchand Ramchand Kothari [MANU/SC/0033/1950] it was said that the payment of court fee on the amount found due was entirely in the power of the decree holder and there was nothing to prevent him from paying it then and there; it was a decree capable of execution from the very date it was passed.

26. Rules of limitation are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. As abovenoted, there is no statutory provision prescribing a time limit for furnishing of the stamp paper for engrossing the decree or time limit for engrossment of the decree on stamp paper and there is no statutory obligation on the Court passing the decree to direct the parties to furnish the stamp paper for engrossing the decree. In the present case the Court has not passed an order directing the parties to furnish the stamp papers for the purpose of engrossing the decree. Merely because there is no direction by the Court to furnish the stamp papers for engrossing of the decree or there is no time limit fixed by law, does not mean that the party can furnish stamp papers at its sweet will and claim that the period of limitation provided under Article 136 of the Act would start only thereafter as and when the decree is engrossed thereupon. The starting of period of limitation for execution of a partition decree cannot be made contingent upon the engrossment of the decree on the stamp paper. The engrossment of the decree on stamp paper would relate back to the date of the decree, namely, 7th August, 1981, in the present case. In this view the execution application filed on 21st March, 1994 was time barred having been filed beyond the period of twelve years prescribed under Article 136 of the Act. The High Court committed illegality in coming to the conclusion that it was not barred by limitation.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 3745 of 2002

Decided On: 13.05.2005

Chiranji Lal (D)  Vs. Hari Das (D) by Lrs.

Hon'ble Judges/Coram:

R.C. Lahoti, C.J., Y.K. Sabharwal and G.P. Mathur, JJ.

Citation: AIR 2005 SC 2564

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Whether S 5 of limitation Act is applicable to filing of execution application?

 Under the scheme of the Limitation Act, execution applications, like plaints have to be presented in the Court within the time prescribed by the Limitation Act. A decree holder does not have the benefit of exclusion of the time taken for obtaining the certified copy of the decree like the appellant who prefers an appeal, much less can he claim to deduct time taken by the Court in drawing up and signing the decree. In this view of the matter, the High Courts of Patna and Calcutta in Sri Chandra Mottli Deva v. Kumar Binoya Nand Singh and Ors. MANU/BH/0057/1976 : AIR (1976) Pat 208 and Sunderlal & Sons v. Yagendra Nath Singh and Anr. MANU/WB/0090/1976 : AIR1976Cal471 have correctly laid down the law; the opinion to the contra expressed by the High Court of Calcutta in Ram Krishna Tarafdar v. Nemai Krishna Tarafdar and Ors. MANU/WB/0035/1974 : AIR1974Cal173 is wrong. Section 5 of the Limitation Act has no application; Section 12(2) of the Limitation Act is also inapplicable to an execution petition. If the time is reckoned not from the date of the decree but from the date when it is prepared, it would amount to doing violence to the provisions of the Limitation Act as well as of Order XX and order XXI Rule 11 C.P.C. which is clearly impermissible.

21. In the result, we hold that the period of limitation under Article 136 of the Limitation Act runs from the date of the decree and not from the date when the decree is actually drawn up and signed by the Judge.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 5005 of 1999

Decided On: 14.09.1999

West Bengal Essential Commodities Supply Corporation Vs. Swadesh Agro Farming & Storage Pvt. Ltd. and Ors.

Hon'ble Judges/Coram:

K. Venkataswami and S.S.M. Quadri, JJ.

Citation: (1999) 8 SCC 315

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