MOHINDER SINGH (DEAD) THROUGH LRs v. PARAMJIT SINGH & Ors.

1.5 The fact situation of the present case would certainly satisfy the tests specified in Section 14 of the 1963 Act, for showing indulgence 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 expanse of Section 14 of the Limitation Act,1963 is not limited to mere jurisdictional issue but also other cause of a like nature. 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. [Paras 22, 23] [1047-F; 1048-A]

1.6 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, 1908. 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. Trial Court and the Appellate Court were right in decreeing the suit in favour of the 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. [Para 24, 26 and 28] [1048-C; 1049-A; 1049-D, E] Lala Balmukund (Dead) Through LRs. v.. Lajwanti and Ors. (1975) 1 SCC 725 : [1975] SCR 44 ; Consolidated Engineering Enterprises v. Principal Secretary, MOHINDER SINGH (DEAD) THROUGH LRs. v. PARAMJIT SINGH & ORS. 1031 Irrigation Department and Ors. (2008) 7 SCC 169 : [2008] 5 SCR 1108 ; Union of India and Ors. v. West Coast Paper Mills Ltd. and Anr. (2004) 3 SCC 458 : [2004] 2 SCR 642 – relied on. W.B. Essential Commodities Supply Corpn. v..Swadesh Agro Farming & Storage Pvt. Ltd. and Anr. (1999) 8 SCC 315 : [1999] 2 Suppl. SCR 399 ; CST v. Parson Tools and Plants (1975) 4 SCC 22 – referred to. Case Law Reference relied on Para 18 [1975] SCR 44 [1999] 2 Suppl. SCR 399 referred to Para 19 relied on [2004] 2 SCR 642 Para 21 referred to Para 21 (1975) 4 SCC 22 Para 27 relied on [2008] 5 SCR 1108 CIVIL APPELLATE JURISDICTION: Civil Appeal No.10222 of 2017. From the Order dated 25.04.2012 of the High Court of Punjab and Haryana at Chandigarh in RSA No.1446 of 2012. Mahabir Singh, Sr. Adv., Ms. Preeti Singh, Rakesh Dahiya, Gagan Deep Sharma, Ms. Swati Jindal, Advs. for the Appellants. Manoj Swarup, Devvrat, Soheb Rahman, Advs. for the Respondents. The Judgment of the Court was delivered by 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. 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 A B C D E F G H 1032 SUPREME COURT REPORTS [2018] 7 S.C.R. 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 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 was dismissed being premature, by the Executing Court vide order dated 7th August, 1965 which reads thus: A B C D E F G H MOHINDER SINGH (DEAD) THROUGH LRs. v. PARAMJIT SINGH & ORS. [A.M. KHANWILKAR, J.] 1033 “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: “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 A B C D E F G H 1034 SUPREME COURT REPORTS [2018] 7 S.C.R. 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 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 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 A B C D E F G H MOHINDER SINGH (DEAD) THROUGH LRs. v. PARAMJIT SINGH & ORS. [A.M. KHANWILKAR, J.] 1035 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 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 A B C D E F G H 1036 SUPREME COURT REPORTS [2018] 7 S.C.R. 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 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.” A B C D E F G H MOHINDER SINGH (DEAD) THROUGH LRs. v. PARAMJIT SINGH & ORS. [A.M. KHANWILKAR, J.] 1037

#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 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) A B C D E F G H 1038 SUPREME COURT REPORTS [2018] 7 S.C.R. A B C D E F G H

#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 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 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