HAMEED JOHARAN (D) AND ORS. versus ABDUL SALAM (D) BY LRS. AND ORS.

Citation: [2001] SUPP. 1 S.C.R. 469 · Decided: 13-08-2001 · Supreme Court of India · Bench: AJAY PRAKASH MISRA · Disposal: Dismissed

Judgment (excerpt)

-
HAMEED JOHARAN (D) AND ORS. 
v. 
ABDUL SALAM (D) BY LRS. AND ORS. 
AUGUST 13, 2001 
[A.P. MISRA AND UMESH C. BANERJEE, JJ.] 
A 
B 
limitation Act, 1963-Article 136-Partition suit-Decree-Execution 
of-limitation period of twelve years-Commencement of-Whether the time _ 
taken for furnishing stamp paper could be excluded for reckoning the period 
of limitation-Held, period of limitation begins to run from the date when the C 
final decree becomes enforceable and not from the date when it becomes 
executable-Furnishing of stamp paper was an act entirely within the domain 
and control of the decree holder and any delay therein cannot put a stop 
on the period of limitation to run-Stamp Act, 1899, Section 35 and 2(15)-
. Interpretation of Statutes. 
D 
Maxims: 
'Vigilantibus non dormientibus jura subveniunt'-Applicability of 
In a partition suit a preliminary decree for partition was passed on E 
8.6.1969 and a final decree thereon was passed on 20.11.1970. The decree 
holder did not furnish any stamp paper and so the decree was not drafted or 
finalised. Subsequently, the original decree holder died and his legal 
representatives were impleaded as parties. The legal representatives of the 
decree holder filed an execution application on 21.5.1984 with engrossed· 
stamp paper dated 26.3.1984. Trial court dis!Dissed the execution petition F 
holding that since the same was filed beyond twelve years period, the same 
was barred by limitation. On revision, High Court directed the trial court 
to consider the question of limitation afresh. On remand, trial court held the 
execution petition was not barred by limitation. Aggrieved, legal 
representatives of the defendant filed a revision petition before the High G 
Court which was allowed and ·the execution petition was dismissed. Hence the 
present appeal by legal representatives of decree holder. 
On behalf of appellant it was contended that the period of limitation 
in respect of partition decree could not begin to run till it was engrossed on 
requisite stamp paper because under Sections 35 and 2(15) of the Stamp Act, H 
469 
470 
SUPREME COURT REPORTS [2001) SUPP. I S.C.R. 
A 1899 such a decree was not enforceable in evidence unless duly stamped. 
Dismissing the appeals, the Court 
HELD: I.I. The limitation period ofl2 years prescribed under Article 
136 of the Limitation Act, 1963 for execution of a partition decree began to 
B run from the date when the final decree or order becomes enforceable and 
not from the date when the decree becomes executable. (476-D; 478-Dl 
1.2. Article 136 of the Limitation Act prescribes a period of 12 years 
for execution of a decree other than a decree granting a mandatory injunction 
or order of any Civil Court. The language used by the legislature in Article 
C 136 if read in its proper pe_rspective to wit: 'when decree or order becomes 
enforceable' must have been to clear up any confusion that ought Have arisen 
by reason of the user of the expression the date of the decree or order which 
was used in the earlier Act. The intention of the legislature stands clearly 
exposed by the language used therein viz., to permit 12 years period from 
the date of the decree or order. What is relevant for Article 136 is as to when 
D the decree became enforceable and not when the decree became executable. 
The requirement of the limitation Act in the matter of enforcement of a 
decree is the date on which the decree becomes enforceable or capable of· 
being enforced-what is required is to assess the legislative intent and· if the 
intent appears to be otherwise clear and unambiguous, question of attributing 
E a different meaning other than the literal meaning of the words used would 
not arise. In the instant case, the final decree was passed on 20.11.1970 and 
the execution petition was filed on 21.5.1984'with engrossed stamp paper 
·dated 26.3.1984 which was clearly beyond the period of limitation. 
F 
(474-8; 476-H; 477-A, C; 478-D, F, BJ 
Biswapati Dey v. Kennisington Stores and Ors., AIR (1972) Calcutta 
172 and Subhash.Ganpairao Buty v. Maroti Krishnaji Dor/ikar, AIR (1975) 
Dom 244, approved. 
2. Furnishing of stamp paper was an act entirely within the domain and 
control of the appellant and any delay in the matter offurnishing ~fthe same 
G cannot possibly be said to be putting a stop to the period oflimitation being 
run-no one can take advantage of his own wrong. The legislature cannot be 
sub-servient to any personal whim or caprice

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