A.C. ARULAPPAN vs AHALYA NAIK. Supreme Court, 10-08-2001
| Judge | A.P.MISRA,UMESH C BANERJEE |
| Parties | A.C. ARULAPPANAHALYA NAIK |
| Date | 10 August 2001 |
| Docket Number | C.A. No.-005233-005234 / 2001 |
| Court | Supreme Court (India) |
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CASE NO.:
Appeal (civil) 5233 of 2001
Appeal (civil) 5234 of 2001
Special Leave Petition (civil) 19628 of 2000
Special Leave Petition (civil) 19629 of 2000
PETITIONER:
A.C. ARULAPPAN
Vs.
RESPONDENT:
SMT. AHALYA NAIK
DATE OF JUDGMENT: 13/08/2001
BENCH:
A.P.Misra, Umesh c Banerjee
JUDGMENT:
JUDGEMENT
BANERJEE, J.
Availability of the plea of limitation in the matter of
execution of decree has been the key issue in this appeal. The
word ’execution’ stands derived from the Latin "ex sequi,"
meaning, to follow out, follow to the end, or perform, and
equivalent to the French "executor," so that, when used in their
proper sense, all three convey the meaning of carrying out some
act or course of conduct to its completion (vide vol.33 - Corpus
Juris Secundum).
Lord Denning in Re Overseas Aviation Engineering (G.B)
Ltd.: (L.R.1963: Ch. 24) has attributed a meaning to the word
’execution’ as the process for enforcing or giving effect to the
judgment of the court and stated:
"The word "execution" is not defined in the Act.
It is, of course, a word familiar to lawyers.
"Execution" means, quite simply, the process for
enforcing or giving effect to the judgment of the
court: and it is "completed" when the judgment
creditor gets the money or other thing awarded to
him by the judgment. That this is the meaning is
seen by reference to that valuable old book Rastill
Termes de la Ley, where it is stated: "Execution is,
"where Judgment is given in any Action, that the
plaintiff shall "recover the land, debt, or damages,
as the case is; and when any "Writ is awarded to
put him in Possession, or to do any other "thing
whereby the plaintiff should the better be satisfied
his debt "or damages, that is called a writ of
execution; and when he hath "the possession of the
land, or is paid the debt or damages, or "hath the
body of the defendant awarded to prison, then he
hath "execution." And the same meaning is to be
found in Blackman v. Fysh: [(1892) 3 Ch. 209,
217, C.A.], when Kekewich, J. said that execution
means the "process of law for the enforcement of a
judgment creditor’s right "and in order to give
effect to that right." In cases when execution was
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had by means of a common law writ, such as fieri
facias or elegit, it was legal execution: when it was
had by means of an equitable remedy, such as the
appointment of a receiver, then it was equitable
execution. But in either case it was "execution"
because it was the process for enforcing or giving
effect to the judgment of the court."
Before adverting to the factual aspect of the matter, a brief
re-capitulation of the various periods of limitation as prescribed
under the Limitation Act as engrafted in the Statute Book from
time to time would be convenient. Law of Limitation in India, as a
matter of fact, was introduced for the first time in 1859 being
revised in 1871, 1877 and it is only thereafter, the Limitation Act
of 1908 was enacted and was in force for more than half a century
till replaced by the present Act of 1963 (see in this context B.B.
Mitra: the Limitation Act 20th Ed.).
Presently, Article 136 of the Limitation Act 1963, prescribes
a period of twelve years for the execution of a decree other than a
decree granting a mandatory injunction or order of any civil court.
As regards the time from which the period of twelve years ought to
commence, the statute has been rather specific in recording that the
period would commence from the date of the decree or order when
the same becomes enforceable. We need not go into the other
situations as envisaged in the statute for the present purpose, save
what is noticed above. To put it shortly, it, therefore, appears that
a twelve year period certain has been the legislative choice in the
matter of execution of a decree. Be it noted that corresponding
provisions in the Act of 1908 were in Articles 182 and 183 and as
regards the statute of 1871 and 1877, the corresponding provisions
were contained in Articles 167, 168, 169, and 179, 180
respectively. Significantly, Article 182 of the Limitation Act of
1908 provided a period of three years for the execution of decree.
Be it clarified that since the reference to the 1908 Act would be
merely academic, we refrain ourselves from recording the details
pertaining to Article 182 save what is noted hereinbefore. It is in
this context, however, the Report of the Law Commission on the
Act of 1963 assumes some importance, as regards the question of
limitation and true purport of Article 136. Before elaborating any
further, it would be convenient to note the Report of the Law
Commission which reads as below:
"170. Article 182 has been a very fruitful source
of litigation and is a weapon in the hands of both
the dishonest decree-holder and the dishonest
judgment debtor. It has given rise to innumerable
decisions. The commentary in Rustomji’s
Limitation Act (5th Edn.) on this article itself
covers nearly 200 pages. In our opinion the
maximum period of limitation for the execution of
a decree or order of any civil court should be 12
years from the date when the decree or order
became enforceable (which is usually the date of
the decree) or where the decree or subsequent
order directs any payment of money or the
delivery of any property to be made at a certain
date or at recurring periods, the date of the default
in making the payment or delivery in respect of
which the applicant seeks to execute the decree.
There is, therefore, no need for a provision
compelling the decree-holder to keep the decree
alive by making an application every three years.
There exists a provision already in section 48 of
the Civil Procedure Code that a decree ceases to
be enforceable after a period of 12 years. In
England also, the time fixed for enforcing a
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