Amanullah Bhuiyan and others Vs. Abdul Hafiz and ors, I BLD 1981 (AD) 210

Case No: Civil Appeal No. 90 of 1980

Judge: Shahabuddin Ahmed ,

Court: Appellate Division ,,

Citation: I BLD 1981 (AD) 210

Case Year: 1981

Appellant: Amanullah Bhuiyan and others

Respondent: Abdul Hafiz and others

Subject: Procedural Law,

Delivery Date: 1981-3-17

 
Supreme Court
Appellate Division
(Civil)
 
Present:
Kemaluddin Hossain, CJ. 
Fazle Munim, J.
Ruhul Islam, J.
Badrul Haider Chowdhury, J.
Shahabuddin Ahmed, J.
 
Amanullah Bhuiyan and others
…….…………….Appellants
Vs.
Abdul Hafiz and ors
…..........................Respondents
 
Judgment
March 17, 1981.
 
A decree, before it is prepared, drawn and signed according to law, cannot be put into execution. The decree cannot be drawn except on a requisite stamped paper, but as there is no law compelling a person interested in the decree to supply the stamp paper within a particular period of time nor any provision to cancel or set aside the decree or dismiss the suit on this ground, the drawing of the decree may be delayed beyond the period of limitation for its execution. In such circumstances limitation will start from the date of the decree is drawn and signed or it becomes executable. …. (8)
 
Cases Referred to-
Koshers Mohan Pal vs. Proves Chandra Manual AIR 1924 Cal. 351; Government of West Pakistan vs. Nazi Mohammad, (1967) 19 D.L.R (SC) 236— PLD 1967, S.C. 271; East and West Steamship Company vs. Queensland Insurance Company, PLD, 1960, Kar. 840; Lachmi Narain Marwary vs. Balmakund Marwary 29, C.W.N. 391; Jatindra Mohan Tagore vs. Bijou Chand Mahatap AIR 32 Cal. 483; Raghubir Sahu vs. Ajodhya Sahu A.I.R 1945 Pat. 482; Ram Rattan vs. Parma Nand 50 C.W.N. 367.
 
Lawyers Involved:
A.W. Mian, Advocate-on-Record.—For the Appellants.
Shafiqur Rahman, Senior Advocate instructed by M.G. Bhuiyan, Advocate-on-Record.—For the Respondents Nos. 1-11, 13-15 & 18-22.
Ex-Parte. —Respondents Nos. 12, 16 &   17.
M.H. Khondker, Senior Advocate. —Amicus Curias.
 
Civil Appeal No. 90 of 1980
(From the Judgment and order dated the 31.7.79 passed by the High Court Division in S.M.A. No. 6 of 1970.)
 
JUDGMENT
 
Shahabuddin Ahmed J.
 
The question raised in this appeal by special leave is whether the period of limitation under Article 182 of the Limitation Act for filing an application for execution of a decree runs from the date when the final decree was passed or from the date when the said decree was engrossed on stamped paper and signed by the judge, the intervening period being 12 years 5 months 22 days.
 
2. Facts of the case are as follows: Res­pondents got a preliminary decree on Septem­ber 15, 1945 in Partition Suit No. 30 of 1938 of the Court of Music, Nathalie and the final decree was passed on November 30, 1954, but the decree was drawn and signed on May 22, 1965 when the requisite stamped paper was put in. Thereafter, on May 9, 1967 Title Execution Case No. 36 of 1967 was filed to which an objection was raised by the defendants-appellants under section 47, Civil Procedure Code taking a number of grounds the principal ground being that the execution case was barred by limitation as not having been filed within the period of three years from the date of the final decree which is November 30, 1954. The learned Music rejected this ground and dismissed the objection petition under section 47, Civil Procedure Code holding that limitation would start in this case from May 22, 1965 when the decree was drawn and signed. The learned Subordinate Judge in appeal, relying on the decision in Koshers Mohan Pal vs. Proves Chandra Manual AIR 1924 Cal. 351, reversed the Munsif’s order and held that though the decree was drawn and signed of May 22, 1965 it would bear the date of the passing of the final decree i.e. November 30, 1954 and that limitation would run from that date. The plaintiffs appealed, and the High Court Division, by the impugned order dated July 31, 1979, set aside the order of the lower appellate court and restored that of the trial court and directed that the execution procee­ding should proceed. Special leave has been granted to see whether this order of the High Court Division is well founded in law in the circumstances as set out above.
 
3. Mr. Abdul Wadud Mian, the learned Advocate, has appeared for the defendants-appellants. Mr. M.G, Bhuiyan, learned Advo­cate, has appeared for the plaintiff-respondents while Mr. M. H. Khondker, learned counsel has appeared has arnicas curiae in order to assist the court in arriving at a correct decision on this question about which conflicting views have been expressed for over a long period. The question is what is the date of a decree for the purpose of putting it into exe­cution or, for that matter, for preferring an appeal there-from. Period of limitation pre­scribed in Article 182 for filing an application for execution is three years from the date of decree. Order XX, rule 7 of the Code of Civil Procedure provides that "the decree shall bear the date the day on which the judgment was pronounced", i.e. date of the judgment will be the date of the decree. This tends to show that if the decree is not prepared and signed on the day on which the judgment is announced but is drawn and signed at a later date still it shall bear the date of the judgment. In the instant case final decree was passed on 30-11-54 but the decree was drawn and signed on 22-5-65. The decree could not be drawn and signed earlier as the required stamp-paper was not put in. A decree in a partition suit is an instrument of partition which is chargeable with stamp duty under article 45 of the Stamp Act, 1898, and unless it is duly stamped the decree is not admissible in evidence as provi­ded in section 35 of the Stamp Act. The Privy Council held in Ram Rattan vs. Parma Nand 50 C.W.N. 367, “Unstamped memoranda of a partition which require to be stamped as constituting an instrument of partition cannot be admitted in evidence even for any purpose". Contention of Mr. A.W. Mian is that the plaintiff who got the final decree should have filed the execution case within the period of three years from 30-11-54 without waiting for the drawing and signing of the decree. Answer to this contention is that a decree cannot be enforced before it sees the light of the day. Decree cannot be prepared unless the required stamped-paper is supplied. But there is no law under which the decree-holder is bound to supply the stamped paper within a particular time for drawing up the decree. It, of course, lies in his interest to put in the stamp-paper for getting the decree drawn up and signed but he is not under any legal obli­gation to do so within a particular time. Simi­larly, the decree-holder is not required by any law to put in any application for a copy of the decree which has not yet come into existence, for a decree comes into existence, for practical purposes, only when it is engros­sed on a stamped paper and signed by the Judge.
 
4. Mr. M. H. Khondker has submitted that under Order XLI, rule 1, C.P. Code appeal from a decree cannot be filed without a copy of the decree and that though the appellate court may at its discretion dispense with the copy of the judgment the court cannot dispense with the copy of the decree. Mr. Khondker is of the view that no applica­tion for execution of a decree can be filed without a copy of the decree. It is also not the duty of the court which has passed the decree to compel any party to put in the required stamped-paper within a particular time for drawing the decree. If the requisite stamped-paper is supplied by the party inte­rested in the decree after long delay still the decree will have to be drawn and signed. In  Raghubir Sahu vs. Ajodhya Sahu A.I.R 1945 Pat. 482. It has been held:
 
"There is no time limit prescribed by the statute for the engrossment of a partition decree on stamp of requisite value. Therefore, mere delay in engross­ment of the decree on stamped paper of the requisite value will not in any way affect the interests of the parties in res­pect of the properties though changes may have taken place in regard to the properties since the decree has been made".
 
In situations like this it is to be seen whether this period can be covered lip by the period required for preparation of the decree.
 
5. Mr. M. H. Khondker has referred to a number of decisions in support of his view that   the   period of limitation for filing an application for execution of a decree runs from the day when it is drawn up and signed and that till the decree is drawn up and signed the suit itself remains pending. In Jatindra Mohan Tagore vs. Bijou Chand Mahatap AIR 32 Cal. 483 it was held:
 
"A suit for partition, even when the report of the Commissioners is confir­med and a decree is directed to be drawn in accordance therewith, is a pending litigation until the Court signs the final decree...... A decree for partition, to be operative, must be engrossed on stam­ped-paper as required by the Stamp Act, and until the Judge signs the decree so engrossed, it cannot be said that the suit has terminated; and an order directing a party to be added under section 32 of the Civil Procedure Code (1908) can be made in such a suit before it has actually terminated."
 
According to the principle laid down in that case it is the drawing and signing of the decree on a stamped-paper in a partition suit which concludes a suit and that announcement of the judgment is not enough and as such the two dates though notionally the same, are different in fact. The Privy Council in Lachmi Narain Marwary vs. Balmakund Marwary 29, C.W.N. 391 observed:
 
"After decree, it is open to any party to a suit, to whose interest it is that further proceedings be taken to initiate the supplementary proceedings in order to have the decree enforced, though in the ordinary case it is the Plaintiff who moves”
 
6.  Mr. Abdul Wadud Mian has relied upon the decision in Kishori Mohan Pal vs. Provash Chandra Mondal AIR 1924 Cal 351, in which it was held by the Calcutta High Court: "The date of the decree under Art.182 Limitation Act is the day on which the judgment is pronounced, and limitation begins to run from that date although no formal decree can be drawn up in a partition suit until paper bearing a proper stamp under Art. 45 of the Stamp Act is supplied to the Court". This view also found favour with the Karachi Bench of the West Pakistan High Court in East and West Steamship Company vs. Queensland Insurance Company, PLD, 1960, Kar. 840.
 
7. But the Pakistan Supreme Court dis­sented from this view and held in the case of Government of West Pakistan vs. Nazi Mohammad, (1967) 19 D.L.R (SC) 236— PLD 1967, S.C. 271, that the Limitation under Article 156 of the Limitation Act runs from the date of the decree. In that case final decree was awarded by a judgment announced on May 30, 1964 and it was dire­cted that the final decree would be prepared after collecting deficit court-fee stamps. The decree was prepared and signed on 1st Sep­tember, 1964 when the deficit of stamp duty was paid: application for certified copy of the decree was made on October 6, 1964 and the copy was delivered after three days and the appeal was instituted on November 28, 1964. It was contended that the appeal was barred by limitation as it was filed beyond 90 days from the date of the judgment and decree, May 30, 1964. The contention was overruled and it was held that the decree bears the date of the judgment only "notion-ally" and that the time which elapses bet­ween the announcement of the judgment and the signing of the decree should be accommo­dated in the time requisite for obtaining a copy of judgment and the decree. Having drawn the distinction between the date of judg­ment and the date of decree their Lordships further observed:
 
"The relevant law appears clearly to distinguish between the judgment and the decree- which follows upon it, and this distinction cannot be allowed to be obscured on assumptions, such as, that a decree "in a legal sense" comes into existence as soon as a judgment is pronounced, or that "in its essence" a decree is not a thing separable from the judgment."
 
8. On a careful consideration of views expressed in the cases cited above, we are inclined to the view taken by the Pakistan Supreme Court as it appears to be based on realistic interpretation of the relevant provisions of law. A decree, before it is prepared, drawn and signed according to law, cannot be, put into execution. The decree cannot be drawn except on a requisite stamped paper, but as there is no law compelling a person interested in the decree to supply stamp-paper within a particular period of time nor any provision to cancel or set aside the decree or dismiss the suit on this ground, the drawing of the decree may be delayed beyond the period of limitation for its execution. In such circumstance limitation will start from the date the decree is drawn and signed or it becomes executable.
 
In the result, the appeal is dismissed with costs.
 
Ed.