whether Section 14 of the 1963 Act has any application to the case on hand. = the plaintiff immediately after compromise judgment was pronounced on 20th August, 1963 took recourse to Execution Petition No.433/1964 on 23rd December, 1964 but the same was dismissed by the Executing Court on 7th August, 1965, as being premature. The plaintiff verily believed that the execution of the decree passed in the previous suit would result in getting possession of the property albeit after the death of Ujjagar Singh. Consequently, after the death of Ujjagar Singh on 14th January, 1971, the plaintiff moved second execution petition on 18th February, 1971 and in those proceedings moved an application for summoning the file with a decree sheet. It transpired that the decree was drawn and the decree sheet was made ready on 19th August, 1972, but the said execution petition stood dismissed for default on 2nd February, 1973. For that reason, the appellant on the same day moved the third execution petition i.e. on 2nd February, 1973 which, however, was dismissed on 2nd February, 1974 on the ground that the remedy for the plaintiff to get possession of the suit property was to file a suit for possession 29 on the basis of the declaratory decree. It is only thereafter the plaintiff resorted to the subject suit for recovery of possession – the Trial Court as well as the Appellate Court have found that the plaintiff was pursuing that remedy in good faith. That finding has not been disturbed by the High Court = the Trial Court and the Appellate Court were right in decreeing the suit in favour of the original plaintiff (predecessor of the appellants) by rejecting the objection regarding the suit being barred by limitation. The High Court committed manifest error in overturning the decisions of the Trial Court and the First Appellate Court, merely on the ground that the formal decree drawn on 19th August, 1972 on the basis of compromise judgment dated 20th August, 1963 must relate back to the date of the judgment i.e. 20th August, 1963 and would not arrest the limitation period until the preparation of the decree on 19th August, 1972.

1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 10222 OF 2017

(Arising out of SLP (C) No.24862 of 2012)

MOHINDER SINGH (DEAD) …. APPELLANTS

THROUGH L.Rs.

:Versus:

PARAMJIT SINGH & ORS. …. RESPONDENTS

J U D G M E N T

A.M. Khanwilkar, J.

1. The singular question that emerges for consideration in

this appeal is: whether Section 14 of the Limitation Act, 1963

(for short “the 1963 Act”), has no impact in view of the

provisions contained in Punjab Limitation (Custom) Act, 1920

(for short “the 1920 Act”) and, if so, will it be applicable in the

facts of this case?

2

2. The relevant undisputed facts of this case can be

delineated as under:

A gift deed was executed by one Ujjagar Singh in respect

of the lands, which included two parcels of lands, measuring

7 Kanals 17 Marlas bearing 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 of Surendra Singh (predecessor of the respondents) vide

Gift Deed dated 6th March, 1963. The said land was ancestral

land in the hands of Ujjagar Singh wherein Mohinder Singh

(predecessor of the appellants) and others were coparceners.

Resultantly, the original appellant Mohinder Singh filed a suit

for declaration that the gift deed was void, being Suit No.367

of 1963 before the Sub Judge, First Class, Batala. During the

pendency of the said suit, a compromise was arrived at

between Rura Singh (predecessor of the respondents) and

Mohinder Singh (predecessor of the appellants). The parties

made statements before the Trial Court that as per the

3

compromise, Mohinder Singh was to be given the land

comprised in Khasara No.46/16 situated at Village Pandori,

Tehsil Batala and 26/4/2/4, 26/3/3 Min East, 26/4/1,

26/3/3 Min West of Village Ghuman after the death of Ujjagar

Singh out of the entire land and Mohinder Singh also gave up

his house. A statement was made by Rura Singh before the

Court which reads thus:

“Stated that decree for declaration for ownership regarding

Khasra no. 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 of the plaintiff. Remaining suit be

dismissed. Parties shall bear their own expenses.”

3. On the basis of the said arrangement, the Court disposed

of the suit on 20th August, 1963 on the basis of compromise in

the following terms:

 

“In view of the above statements of the parties, the suit as

prayed for is decreed herewith solely in respect of khasra

number 46/16 of village Pandori and 26/4/2/4, 26/3/3 Min

east, 26/4/1, 26/3/3 Min west of village Ghuman against

the defendant no.2. The suit against defendant No.1 will

stand dismissed. The parties will bear their own costs.”

4. Mohinder Singh then took out execution petition No.430

of 1964 on 23rd December, 1964. The said execution petition

4

was dismissed being premature, by the Executing Court vide

order dated 7th August, 1965 which reads thus:

“COPY OF ORDER: As per decision of D.H. counsel the

execution is dismissed as pre-mature and be consigned

record-room on the Satisfied.”

5. The said Ujjagar Singh died on 14th January, 1971,

whereafter Mohinder Singh took out second execution petition

on 18th February, 1971. He also took out an application for

summoning the original file with the decree sheet. This

application was filed on 23rd August, 1971 before the

Executing Court. It then transpired that the decree was

prepared and the decree sheet was drawn on 19th August,

1972. However, the execution petition instituted by Mohinder

Singh came to be dismissed for default on 2nd February, 1973.

On the same day, Mohinder Singh took out third execution

petition which was dismissed on 2nd February, 1974 on the

ground that the same was not maintainable. The relevant

portion of the order passed by the Executing Court in

Execution Application No.11/1973 reads thus:

5

“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 be executed is a declaratory one and it ensure to

the benefit of the decree holder after the death of the vendor.

The decree-holder can only file a separate suit if so

advised for possession of the suit property but the

execution is not maintainable. The declaratory decree

cannot be executed and the possession of the land in

question cannot be granted to the decree holder in

execution of the same. This issue is decided against the

decree-holder.

In view of my above said finding the application is

dismissed. File be consigned to the Record Room.”

(emphasis supplied)

6. Taking cue from the observations in this order and left

with no other option for getting possession of the land referred

to in the decree passed in suit No.367 of 1963, Mohinder

Singh filed a fresh suit on 11th June, 1974, in the Court of

Civil Judge, Junior Division, Batala, being C.S. No.173/1974.

He asserted that the declaratory decree was prepared on 19th

August, 1972 and because of the order passed by the

Executing Court on 2nd February, 1974, he had to file the suit

for possession on the basis of the cause of action which had

arisen on 19th August, 1972 and because of the refusal of the

6

respondents (defendants) to deliver the suit lands to him. The

respondents filed written statement in which they admitted

the fact that the decree was prepared on 19th August, 1972,

but asserted that the present suit was barred by limitation as

the same was filed after lapse of 3 years from the date of death

of Ujjagar Singh. In that, Ujjagar Singh died on 14th January,

1971 whereas the suit has been filed on 11th June, 1974.

Further, the factum of preparation of decree on 19th August,

1972 would be of no avail as the decree had been passed in

the previous suit on 20th August, 1963. The date on which the

previous suit was decided would be the relevant date.

However, subsequently the respondents (defendants) filed

additional written statements so as to withdraw the admission

made earlier that the decree sheet was prepared on 19th

August, 1972.

7. The Civil Judge, Junior Division, Batala vide his

judgment dated 20th May, 2008 negatived the objection taken

by the respondents regarding the suit being barred by

7

limitation. The relevant portion of the judgment of the Trial

Court reads thus:

“13. Article 2(b) of the Punjab Limitation (Customs) Act 1920

provides the period of limitation of three years for a suit for

possession of an ancestral immovable property which has

been alienated, on the ground that alienation is not binding

on the plaintiff according to custom where such declaratory

decree is obtained. The time from which period of limitation

is to begin is the date on which right to sue accrues or the

date on which declaratory decree is obtained whichever is

later. It is the case of the defendants that Ujjagar Singh died

on 14.01.1971 the entry of the death of Ujjagar Singh is also

placed on the record as Ex.D1 and the period of limitation is

to be computed from 14.01.1971, when the right to sue

accrues to the plaintiff on the death of Ujjagar Singh and the

present suit is not within the period of three years as the

suit has been filed on 11.06.1974. However the article 2(b)

of the Punjab Limitation (Customs) Act 1920, provides

that period of three years for the institution of the suit

is to be ascertained from the date on which right to sue

accrues or the date on which declaratory decree is

obtained whichever is later. It is claimed by the plaintiff

that decree sheet was prepared on 19.08.1972, the fact

which is admitted by the defendants while filing the

original written statement. However, it is argued by

counsel for the defendants that order in the execution

application No. 32 of 1971, dated 19.8.1972 on which the

decree is alleged to have been prepared by the plaintiff is in

fact with regard to the dismissal of the said execution

application due to the non appearance of the parties. I am

of the considered opinion that only on the ground that

said order dated 19.08.1972 relates with the dismissal of

the execution it cannot be said that decree sheet was

not prepared during the proceedings of the said

execution. It has already been held that the decree

sheet was prepared during the execution bearing No. 32

8

of 1971. Even if it is considered that the decree sheet

was prepared on dated 29.07.1972 and not on

19.08.1972 as discussed above even then the present

suit is within the period of limitation i.e. 3 years as per

article 2(b) of the Punjab Limitation (Customs) Act 1920.

14. It is also argued by counsel for the defendants that

while filing the replication inconsistent pleas taken by the

plaintiff from the plaint already fled by him and the

replication filed by the plaintiff can be taken into

consideration. In support of his contention, counsel for the

defendants has relied upon 2001 (3) Civil Court Cases 565

(Rajasthan) Gurjant Singh Versus Krishan Chander and Ors.

But I am of the considered view that in fact the defendants

themselves have taken the inconsistent pleas by filing the

amended written statement from the original written

statement. In the amended written statement it is claimed

by the defendants that no decree sheet was prepared on

19.08.1972 and the decree sheet of Civil suit No. 367 of

14.06.1963 has been passed on 20.8.1963 itself. The

plaintiff has only contested the pleadings of the amended

written statement by filing the replication and accordingly it

cannot be said that the plaintiff has taken the inconsistent

pleas from the pleas already taken by him in his plaint, while

filing the replication.

15. In view of discussion above, this issue No. 1 is decided

in favour of the plaintiff. The suit of the plaintiff is also held

within the period of limitation and issue No.2 is also decided

in favour of the plaintiff and against the defendants.”

(emphasis supplied)

8. Aggrieved, the respondents (defendants) filed a first

appeal before the District Court being Civil Appeal No.373 of

2008 (12th June, 2008) which was heard by the Additional

District Judge, Gurdaspur and was finally dismissed on 2nd

9

February, 2012. The District Court rejected the argument of

the respondents on the issue of suit being barred by

limitation, by observing thus:

“…But learned counsel for the appellants has contended that

decree sheet may be prepared at any time but it relates back

to the date of judgment. Though it is a settled proposition of

law that decree follows the judgment, but in the instant case

there is no fault on behalf of respondent no.1 who has able

to prove on record that when he filed the suit while

challenging the gift deed which was decided on the basis of

the compromise and statements of the parties on 20.08.1963

and thereafter he filed an application for execution of the

same in which objections were raised by Rura through

counsel and execution was dismissed being premature and

after the death of Ujjagar Singh in the year 1971 he again

moved an execution applicable in which the fresh decree

sheet was ordered to be prepared which was ultimately

prepared in the presence of the parties and during those

proceedings no copy of the decree sheet which has now been

referred by learned counsel for the appellants has placed on

file nor any such objection has been raised that decree sheet

has already been prepared and more so, the decree sheet

was ordered to be prepared in presence of both the parties.

Later on execution was dismissed on filing of objections by

appellants by learned Sub Judge 1st Class, Batala with the

observation that it enures to the benefit of the decree holder

after the death of the vendor and same was ultimately

ordered to be dismissed on 02.02.1974 and if one computed

the period of limitation from the day of preparation of decree

i.e. in the year 1972 because the day when the execution

application has been dismissed by Court of Shri A.S.

Rampal, the then Sub Judge 1st Class, Batala, by observing

then the suit of respondent no.1 is certainly within

limitation.”

10

9. The respondents then preferred a second appeal before

the High Court of Punjab and Haryana at Chandigarh, being

Regular Second Appeal No.166 of 2012 (O&M), which has been

allowed by the learned Single Judge of the High Court, vide

judgment dated 25th April, 2012. The High Court accepted the

argument of the respondents in the following words:

“I have carefully considered the aforesaid contentions. It is

undisputed that the earlier suit was decided on the basis of

compromise vide judgment dated 20.08.1963. From the

judgments of the courts below, it appears that formal decree

in the said suit was not drawn immediately but was drawn

on 19.08.1972 when plaintiff moved for the same because

while seeking execution of the said decree, the plaintiff learnt

that formal decree had not been drawn. However, formal

decree drawn on 19.08.1972 on the basis of compromise

judgment dated 20.08.1963 shall relate back to the date

of judgment i.e. 20.8.1963. Merely because formal

decree was drawn on 19.08.1972, it cannot be said that

limitation period started on 19.08.1972. On the

contrary, earlier declaratory decree was passed vide

judgment dated 20.08.1963 and therefore, limitation

period in the instant case commenced on 14.01.1971 on

the death of Ujjagar Singh. Consequently, suit filed on

11.06.1974 i.e. after expiry of limitation period of three

years is patently barred by limitation. Finding of the

courts below to the contrary is patently perverse and

illegal and, therefore, unsustainable.

Substantial question of law arises for determination in this

second appeal as to whether suit is barred by limitation and

finding of the courts below holding the suit to be within the

limitation is perverse and illegal. The said substantial

question of law is answered in favour of

11

defendants/appellants holding that the suit is barred by

limitation.

Resultantly the instant second appeal is allowed.

Judgments and decrees of both the courts below are set

aside. Suit filed by the respondent No.1-plaintiff stands

dismissed. The parties are, however, left to suffer their

respective costs throughout.”

(emphasis supplied)

10. In this backdrop, the present appeal, by special leave,

has been filed by the original plaintiff Mohinder Singh who

died during the pendency of the appeal before this Court and

consequently, his heirs and legal representatives have been

brought on record to espouse the cause. According to the

appellants, the suit for possession was filed by Mohinder

Singh on the basis of the declaratory decree which was within

the limitation period of three years as provided by Article 2(b)

of the Schedule to the 1920 Act. Inasmuch as, Section 2(b) of

the said Act stipulates that the limitation would commence

from the date on which the right to sue accrues or the date on

which the declaratory decree is obtained, whichever is later. In

the present case, the right to sue accrued after the death of

Ujjagar Singh on 14th January, 1971. However, the plaintiff

12

was advised to pursue execution of the decree passed in the

previous Suit No.367 of 1963 and was driven to file the

present suit on 11th June, 1974 after the order was passed by

the Executing Court on 2nd February, 1974. Nevertheless, as

the decree sheet was prepared only on 19th August, 1972, the

suit filed on 11th June, 1974 was within limitation in terms of

Article 2(b) of the 1920 Act. To buttress this submission

reliance has been placed on the decision in Lala Balmukund

(Dead) Through L.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 19th August, 1972 and

for which reason the suit filed on 11th June, 1974 was within

limitation. Reliance has been placed on the contemporaneous

record, including written statement and the appeal memo filed

before the First Appellate Court by the respondents

(defendants), admitting preparation of decree on 19th August,

1972. Reliance is also placed on Section 14 of the 1963 Act

for exclusion of time during which Mohinder Singh (plaintiff)

had bona fide pursued the execution proceedings. It is

 

1

(1975) 1 SCC 725

13

submitted that Section 14 of the 1963 Act will be attracted not

only because of Section 29(2) of the 1963 Act, but also

because of Section 5 of the 1920 Act expressly providing for

application of Sections 4 to 25 of the 1963 Act. Reliance is

placed on a three-Judge Bench decision of this Court in

Consolidated Engineering Enterprises Vs. Principal

Secretary, Irrigation Department and Ors.,

2 which has

enunciated that a liberal approach should be adopted by the

Court, unless the application of Section 14 is expressly

excluded by the special law. It is contended that although the

first execution petition moved by the plaintiff was dismissed as

premature as also the subsequent execution petition was

dismissed on 2nd February, 1974 on the ground that the

proper remedy was to file a suit for possession, the defendants

neither raised any objection nor challenged the said orders.

On the other hand, the plaintiff acted upon the said orders

and eventually filed a suit for possession on 11th June, 1974.

Relying on the decision of this Court in Union of India and

 

2

(2008) 7 SCC 169

14

Ors. Vs. West Coast Paper Mills Ltd. and Anr. 3 , it is

submitted that the conclusion reached by the Trial Court and

commended to the First Appellate Court, is the correct

approach in the fact situation of the present case. Taking any

other view would be awarding bonus to the respondents

despite Rura Singh (predecessor of respondents) having agreed

for giving possession of the subject properties to Mohinder

Singh (predecessor of the appellants) vide compromise decree

dated 20th August, 1963.

11. The respondents, on the other hand, submitted that the

High Court has justly reversed the concurrent judgment of two

Courts on the issue of suit being barred by limitation after

having found that the decree drawn on 19th August, 1972 on

the basis of the compromise judgment dated 19th August,

1963 must relate back to the date of the judgment i.e. 19th

August, 1963. Thus, mere preparation or drawing of a formal

decree on 19th August, 1972 would be of no avail to the

appellants as the limitation in the present case had

 

3

(2004) 3 SCC 458

15

commenced consequent to the death of Ujjagar Singh on 14th

January, 1971 but the suit was filed on 11th June, 1974 after

the expiry of 3 years‟ limitation period. It is submitted that the

parties are governed by the provisions of Article 2(b) of the

Schedule to the 1920 Act and the plaintiff failed to exercise

due diligence for which reason cannot take advantage in

calculating the limitation period from 19th August, 1972. It is

contended that Section 14 of the 1963 Act was limited to

accord protection to a litigant against the bar of limitation

when he institutes civil proceeding, which by reason of some

technical defects cannot be decided on merits and is

dismissed. To buttress this submission, reliance has been

placed on paragraphs 21, 22 and 31 in particular, of the

decision in the case of Consolidated Engineering

Enterprises (supra). According to the respondents, the

subject suit was barred by limitation as it was not instituted

within the limitation period specified in Article 2(b) of the

Schedule to the 1920 Act and provisions of Section 14 will be

of no avail to the plaintiff. Furthermore, no explanation or

justification whatsoever has been offered by the plaintiff for

16

the period between 2nd February, 1974 (when the third

execution petition was dismissed) and 11th June, 1974 (when

the suit for possession was filed by the plaintiff). The question

of showing any indulgence, much less by invoking Section 14

of the 1963 Act, does not arise. The respondents pray for

dismissal of this appeal and affirmation of the view taken by

the High Court whilst allowing the second appeal filed by

them.

12. We have heard Mr. Mahabir Singh, learned senior

counsel appearing for the appellants and Mr. Manoj Swarup,

learned counsel appearing for the respondents.

13. There is no dispute that the issue of suit being barred by

limitation will have to be answered with reference to the

special law as applicable i.e. the 1920 Act. The said Act was

enacted to amend and consolidate the law governing the

limitation of suits relating to alienations of ancestral

immovable property and appointments of heirs by persons

who follow custom in the area to which the Act would apply.

Section 8 of the 1920 Act postulates that when any person

17

obtains a decree declaring that an alienation of ancestral

immovable property or appointment of an heir is not binding

on him according to custom, the decree shall enure for the

benefit of all persons entitled to impeach the alienation or the

appointment of an heir. For such a declaratory suit, the

limitation is provided in the schedule. Article 2 of the Schedule

also envisages that the period of limitation for a suit for

possession of ancestral immovable property which has been

alienated, on the ground that alienation is not binding on the

plaintiff according to custom, inter alia, within three years

from the date the declaratory decree is obtained. Section 8 of

the 1920 Act reads thus:

“8. Benefit of declaratory decree.- When any person

obtains a decree declaring that an alienation of ancestral

immoveable property or the appointment of an heir is not

binding on him according to custom, the decree shall enure

for the benefit of all persons entitled to impeach the

alienation or the appointment of an heir.”

Article 2 of the Schedule reads thus:

18

SCHEDULE

Description of suit Period of

Limitation

Time from

which period

begins to run

1. xxx

2. 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(a)

If no declaratory

decree of the nature

referred to in Article 1

is obtained

(b) If such declaratory

decree is obtained

3. xxx xxx xxx

4. xxx xxx xxx

5. xxx xxx xxx

6. xxx xxx xxx

6 Years

3 years

As above

The date on which the

right to sue accrues or

the date on which the

declaratory decree is

obtained, whichever is

later.

14. In the present case, the declaratory decree has been

passed on 20th August, 1963 on the basis of the compromise

between the plaintiff – Mohinder Singh (predecessor of the

19

appellants) and defendant – Rura Singh (predecessor of the

respondents). However, that being a conditional decree, the

right to sue for possession would not have accrued until the

death of Ujjagar Singh which happened only on 14th January,

1971. The appellants are not invoking the first part of Article

2(b), which postulates that the time from which period

commences would be the date on which the right to sue

accrues. First, because declaratory decree was passed on

20.8.1963; second, because it was a conditional decree and

was unenforceable during the life time of Ujjagar Singh; third,

because Ujjagar Singh died on 14th January, 1971 but the

fresh suit was filed on 11th June, 1974 due to the observation

made by the Executing Court in its order dated 2nd February,

1974. Resultantly, the appellants are relying on the second

part of Article 2(b), which postulates that the time from which

period would commence to file a suit for possession would be

the date on which the “declaratory decree is obtained”.

15. The substratum of the claim of the plaintiff is founded on

the factum of date on which the decree sheet in respect of the

20

compromise decree was prepared and drawn on 19th August,

1972. The expression “declaratory decree is obtained” would

take within its fold the event of drawing of or preparation of

the decree. Notably, the Trial Court as well as the Appellate

Court has accepted the stand taken by the plaintiff that the

compromise decree was prepared or drawn on 19th August,

1972. Even the High Court has not reversed that finding. The

High Court, however, has held that drawing of a formal decree

on 19th August, 1972 will be of no avail as it would relate back

to the compromise decree passed on 20th August, 1963. That

would not save the limitation period for filing the suit for

possession. Whereas, the cause of action for filing such suit

had arisen on 14th January, 1971 on the death of Ujjagar

Singh but the suit was filed after the expiry of limitation period

of three years on 11th June, 1974.

16. In this backdrop, the moot question in the present case

is the meaning of the expression “the declaratory decree is

obtained”. Does it mean the date of pronouncement of the

judgment i.e. 20th August, 1963 or the date of preparation of

21

decree sheet i.e. 19th August, 1972? The expression “obtain”,

as understood in common parlance and defined in Concise

Oxford English Dictionary, would mean – “acquire, secure,

have granted to one”. This may also encompass obtaining a

copy of the decree. In central legislation, the expression is

made explicit by providing “for obtaining a copy of the decree”,

as was considered in Lala Balmukund (supra). The

expression “obtained”, therefore, would pre-suppose, in the

context of reckoning limitation period for filing a suit for

possession, of securing a certified copy of the decree (decreesheet)

on the basis of which, the suit for possession could be

instituted. In other words, the date on which the decree is

drawn would be the relevant date for commencement of

limitation period. As in the case of execution proceedings,

mere passing of the judgment by the Court is not enough but

a decree has to be drawn on the basis of such declaratory

judgment which is then put into execution. Applying the same

analogy, if a suit for possession is founded on a declaratory

decree it could proceed only after a drawn up decree on the

22

basis of a declaratory judgment of the Civil 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 declaratory judgment 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

drawn or prepared and not merely the date on which a

declaratory judgment is passed by the Court. Taking any other

view would be rewriting the expression “the declaratory decree

is obtained” and doing violence to the 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 date on which the declaratory decree is drawn could

ignite the period of limitation for instituting a suit for

possession and not a mere declaratory judgment rendered by

23

the Court in the previous suit (for declaration simplicitor).

Taking any other view will render the last part of Article 2(b),

providing for “whichever is later” nugatory and otiose.

18. The appellants have justly relied on the exposition in the

case of Lala Balmukund (supra), (in particular paragraphs

20 and 21), which has answered similar issue regarding the

date of obtaining decree and while explicating the term

“obtaining a copy”, has held that the time will start only after

the decree is drawn. It is apposite to reproduce the dictum in

paragraph 19, which reads thus:

“19. We do not wish to encumber this judgment with a

detailed discussion of all the citations and the reasoning

advanced therein in support of one or the other view. It will

be sufficient to say that upon the language of Section 12(2)

both the constructions are possible, but the one adopted by

the majority of the courts, appears to be more consistent

with justice and good sense. The Limitation Act deprives

or restricts the right of an aggrieved person to have

recourse to legal remedy, and where its language is

ambiguous, that construction should be preferred which

preserves such remedy to the one which bars or defeats

it. A court ought to avoid an interpretation upon a

statute of limitation by implication or inference as may

have a penalising effect unless it is driven to do so by

the irresistible force of the language employed by the

Legislature.”

(emphasis supplied)

24

19. It may be useful to advert to the elucidation in W.B.

Essential Commodities Supply Corpn. Vs. Swadesh Agro

Farming & Storage Pvt. Ltd. and Anr.4. Indeed, in that case

the factual narrative on which the question was examined was

somewhat different, namely, whether the period of limitation

under Article 136 of the 1963 Act will start from the date of

the decree or from the date when the decree is actually drawn

up and signed by the Judge, as articulated in paragraph 2 of

the judgment. In paragraph 12 of the judgment this Court

observed thus:

“12. There may, however, be situations in which a decree

may not be enforceable on the date it is passed. First, a

case where a decree is not executable until the

happening of a given contingency, for example, when a

decree for recovery of possession of immovable property

directs that it shall not be executed till the standing

crop is harvested, in such a case time will not begin to

run until harvesting of the crop and the decree becomes

enforceable from that date and not from the date of the

judgment/decree. But where no extraneous event is to

happen on the fulfillment of which alone the decree can

be executed it is not a conditional decree and is capable

of execution from the very date it is passed (Yeshwant

Deorao v. Walchand Ramchand5). Secondly, when there is

a legislative bar for the execution of a decree then

 

4

(1999) 8 SCC 315

5 AIR 1951 SC 16

25

enforceability will commence when the bar ceases. Thirdly,

in a suit for partition of immovable properties after

passing of preliminary decree when, in final decree

proceedings, an order is passed by the court declaring

the rights of the parties in the suit properties, it is not

executable till final decree is engrossed on non-judicial

stamp paper supplied by the parties within the time

specified by the Court and the same is signed by the

Judge and sealed. It is in this context that the

observations of this Court in Shankar Balwant Lokhande

v. Chandrakant Shankar Lokhande 6 have to be

understood. These observations 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

judgment was pronounced by the Court in the previous suit

on 20th August, 1963, on the basis of compromise entered into

by Mohinder Singh (original plaintiff) and Rura Singh (original

defendant), that declaration could be given effect to only after

the death of Ujjagar Singh. The decree as passed was

enforceable only thereafter. Suffice it to observe that the

decree sheet having been made ready on 19th August, 1972

and the suit for possession filed three years thereafter on 11th

June, 1974, was thus within the prescribed period of

 

6 (1995) 3 SCC 413

26

limitation in terms of Article 2(b) of the Schedule to the 1920

Act.

 

21. Assuming for the sake of argument that the three years‟

period provided in Article 2(b) ought to be reckoned from the

date of death of Ujjagar Singh i.e. 14th January, 1971, the

question would be whether the provisions of Section 14 of the

1963 Act would come to the aid of the plaintiff (appellants).

The purport of Section 14 of the 1963 Act has been delineated

in the case of Union of India and Ors. Vs. West Coast Paper

Mills Ltd. (supra). The Court while considering the question

as to whether the suit was barred by limitation examined the

question whether Section 14 of the 1963 Act was applicable to

that case. In paragraph 14 of the judgment, after referring to

the decision in CST Vs. Parson Tools and Plants 7, this

Court observed thus:

“14. In the submission of Mr. Malhotra, placing reliance on

CST v. Parson Tools and Plants8, to attract the applicability

of Section 14 of the Limitation Act, the following

requirements must be specified: (SCC p.25, para 6)

 

7

(1975) 4 SCC 22

8

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

27

„6. (1) both the prior and subsequent proceedings are

civil proceedings prosecuted by the same party;

(2) the prior proceedings had been prosecuted with

due diligence and in good faith;

(3) the failure of the prior proceedings was due to a

defect of jurisdiction or other case of a like nature;

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

In the submission of the learned Senior Counsel, filing of

civil writ petition claiming money relief cannot be said to be

a proceeding instituted in good faith and secondly, dismissal

of writ petition on the ground that it was not an appropriate

remedy for seeking money relief cannot be said to be ‘defect

of jurisdiction or other cause of a like nature’ within the

meaning of Section 14 of the Limitation Act. It is true that

the writ petition was not dismissed by the High Court on the

ground of defect of jurisdiction. However, Section 14 of the

Limitation Act is wide in its application, inasmuch as it

is not confined in its applicability only to cases of defect

of jurisdiction but it is applicable also to cases where the

prior proceedings have failed on account of other causes

of like nature. The expression ‘other cause of like

nature’ came up for the consideration of this Court in

Roshanlal Kuthalia v. R.B. Mohan Singh Oberai9 and it

was held that Section 14 of the Limitation Act is wide

enough to cover such cases where the defects are not

merely jurisdictional strictly so called but others more

or less neighbours to such deficiencies. Any

circumstances, legal or factual, which inhibits

entertainment or consideration by the Court of the

dispute on the merits comes within the scope of the

Section and a liberal touch must inform the

interpretation of the Limitation Act which deprives the

remedy of one who has a right.”

(emphasis supplied)

 

22. The expanse of Section 14 of the Act, therefore, is not

limited to mere jurisdictional issue but also other cause of a

 

9

(1975) 4 SCC 628

28

like nature. Taking cue from this decision, the appellant would

contend that the plaintiff immediately after compromise

judgment was pronounced on 20th August, 1963 took recourse

to Execution Petition No.433/1964 on 23rd December, 1964

but the same was dismissed by the Executing Court on 7th

August, 1965, as being premature. The plaintiff verily believed

that the execution of the decree passed in the previous suit

would result in getting possession of the property albeit after

the death of Ujjagar Singh. Consequently, after the death of

Ujjagar Singh on 14th January, 1971, the plaintiff moved

second execution petition on 18th February, 1971 and in those

proceedings moved an application for summoning the file with

a decree sheet. It transpired that the decree was drawn and

the decree sheet was made ready on 19th August, 1972, but

the said execution petition stood dismissed for default on 2nd

February, 1973. For that reason, the appellant on the same

day moved the third execution petition i.e. on 2nd February,

1973 which, however, was dismissed on 2nd February, 1974

on the ground that the remedy for the plaintiff to get

possession of the suit property was to file a suit for possession

29

on the basis of the declaratory decree. It is only thereafter the

plaintiff resorted to the subject suit, being Civil Suit

No.173/1974 filed on 11th June, 1974.

23. Notably, the respondents did not question the decisions

of the Executing Court – be it on the ground that it was

premature or on the ground that the remedy for the plaintiff

was to file a suit for possession. Indubitably, the proceedings

such as execution petition resorted to by the plaintiff would be

a civil proceeding. Further, the Trial Court as well as the

Appellate Court have found that the plaintiff was pursuing

that remedy in good faith. That finding has not been

disturbed by the High Court. The reasons which weighed with

the Executing Court for dismissing the execution petitions

were just causes covered by the expression “defect of

jurisdiction” and in any case, “other cause of a like nature”,

ascribed by the Executing Court for its inability to grant relief

of possession of suit property to the plaintiff. The fact

situation of the present case would certainly satisfy the tests

specified in Section 14 of the 1963 Act, for showing indulgence

30

to the plaintiff to exclude the period during which the plaintiff

pursued execution proceedings for reckoning the period of

limitation for filing the suit for possession on 11th June, 1974.

The argument of the respondents that the plaintiff did not offer

any explanation for the period from 2nd February, 1974 till 11th

June, 1974 does not impress us at all. That period is only of

four months and once the period from 14th January, 1971 till

2nd February, 1974 was to be excluded as being time spent by

the plaintiff in pursuing other civil proceedings in good faith,

there would be no delay in filing of the suit. What is posited

by Section 14 of the 1963 Act is the exclusion of time of

proceeding bona fide in Court without jurisdiction or other

cause of a like nature, for which the concerned Court is

unable to entertain the lis. The fact that no explanation

whatsoever has been offered for the period from 2nd February,

1974 to 11th June, 1974, therefore, would not whittle down

the rights of the plaintiff to institute and pursue suit for

possession of the subject land on the basis of declaratory

decree.

31

24. That takes us to the last question as to whether Section

14 of the 1963 Act has any application to the case on hand.

This issue need not detain us. Section 5 of the 1920 Act is

explicit and it unambiguously postulates that the suit referred

to in the First Schedule to the said Act would 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 the

Act if instituted after the period of limitation therein

prescribed has expired.- Subject to the provision contained

in sections 4 to 25 (inclusive), of the Indian Limitation Act,

1908, and notwithstanding anything to the contrary

contained in the first schedule of the said Act, every suit, of

any description specified in the schedule annexed to this

Act, instituted after the period of limitation prescribed

therefor in the schedule shall be dismissed, although

limitation has not been set up as a defence.”

25. It may be apposite to also advert to Section 29(2) of the

1963 Act, the same reads thus:

“29. Savings.- (1) xxx

(2) Where any special or local law prescribes for any suit,

appeal or application a period of limitation different from the

period prescribed by the Schedule, the provisions of section

3 shall apply as if such period were the period prescribed by

the Schedule and for the purpose of determining any period

of limitation prescribed for any suit, appeal or application by

32

any special or local law, the provisions contained in sections

4 to 24 (inclusive) shall apply only in so far as, and to the

extent to which, they are not expressly excluded by such

special or local law.

(3) xxx

(4) xxx.”

26. We find force in the submission of the appellants that

Section 14 of the 1963 Act would be attracted in the fact

situation of the present case, in light of Section 5 of the 1920

Act and also Section 29(2) of the 1963 Act coupled with the

fact that there is no express provision in the 1920 Act, to

exclude the application of Section 14 of the 1963 Act.

27. Both sides have relied on the exposition in the case of

Consolidated Engineering Enterprises (supra). In that case,

the Court noted that Section 14 of the 1963 Act envisages that

it is a provision to afford protection to a litigant against bar of

limitation when he institutes a proceeding which by reason of

some technical defects cannot be decided on merits and is

dismissed. While considering the provisions of Section 16 and

its application, this Court observed that a proper approach will

have to be adopted and the provisions will have to be

33

interpreted so as to advance cause of action rather than abort

the proceedings, inasmuch as the section is intended to

provide relief against bar of limitation in cases of mistaken

remedy or selection of a wrong forum.

28. It is not necessary to dilate on this judgment any further,

having already observed that both the Trial Court and the

Appellate Court were right in decreeing the suit in favour of

the original plaintiff (predecessor of the appellants) by rejecting

the objection regarding the suit being barred by limitation. The

High Court committed manifest error in overturning the

decisions of the Trial Court and the First Appellate Court,

merely on the ground that the formal decree drawn on 19th

August, 1972 on the basis of compromise judgment dated 20th

August, 1963 must relate back to the date of the judgment i.e.

20th August, 1963 and would not arrest the limitation period

until the preparation of the decree on 19th August, 1972.

29. In view of the above, we allow this appeal and set aside

the impugned judgment and order and decree passed by the

High Court and instead, restore the judgment and decree

34

passed by the Trial Court as affirmed by the First Appellate

Court.

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

costs.

..………………………………CJI.

(Dipak Misra)

…..…………………………..….J.

(A.M. Khanwilkar)

New Delhi;

March 28, 2018.