P L D 1990 Supreme Court 778 (PLP)

(c)

Now admittedly in the present case the execution application in question was the first ever made after the decree passed in the suit. Section 48, C.P.C. was amended by the, Law Reforms Ordinance, 1972 and the period of six years was substituted in place of the original period of 12 years prescribed by the said' provision. D.F. Mulla in his commentary on the Code of Civil Procedure Code, before its amendment explained the object underlying the provisions of section 48 as under:-- "This section deals with the maximum limit of time for execution; it does not prescribe the period within which each application for execution is to be made .............. A decree-holder is entitled to present in succession any number of applications for execution of the same decree, and the Court has no power to refuse execution, unless-- (i) the application is barred by virtue of general principles of law analogous to those of res. judicata; or (ii) the application is barred under Article 182 of the Limitation Act, 1908; or (iii) 'the execution of the decree is barred under the present section, though the application for execution may not be barred under (i) or (ii) above." In other words since section 48 prescribes the outer limit of time for making execution application of the same decree, it does not really prescribe a time limit for an application for execution, which is controlled by the Articles in the third division of the first Schedule to the Limitation Act. By Law Reforms Ordinance (XII of 1972), the Limitation Act was also amended with the result that Article 182 was omitted. But for the omission of Article 182 the execution application in the present case would have been governed by the said Article of the Limitation Act. Article 182 was specifically applicable to an application for execution of a decree or order of any Civil Court, and it provided a period of three years (or where a certified copy of the decree has been registered six years), whereas the third column prescribed various dates from which the period of limitation commenced, to run. Seven different clauses were provided in the third column with regard to the termius a quo of the period of limitation. The first clause dealt with the date of decree or order. Clause 5 referred to an application for execution where there has been a previous proceeding in execution in the Court. This was the only clause which dealt with such a situation and it provided that successive applications could be made for execution or step in aid of execution of decree could be taken within the period prescribed by column 2 of the Article. With the result that by itself Article 182 did not create any hindrance in making any number of successive execution applications extending over indefinite period of time, provided that such applications are made within the period, from time to time as required by clause ~

5. Now the relevant part of Article 182 may with advantage be set out as under:

Description of application

182. For the execu­tion of a decree or order of any Civil Court other than (1) application to which section 48 of the Code of Civil Procedure, 1908 applies; and (2) application provided for by Article

183. Period of limitation. Three years; or, where a certified copy of the decree has been registered, six years. Time from which period begins to run. (1) The date of the decree or order, or (5) (where the application next hereinafter mentioned has been made) the date of the final order passed on an application made in accordance with law to the proper Court for execution or to take some step in aid of execution of the decree or order ,or It was in this context that section 48 was construed not to lay down a period of time for an execution application as a statute of limitation, but only to lay down an outer limit for keeping a decree alive for execution and to bring an end to an otherwise indefinite succession of applications. Mr. Khalid Anwar learned advocate who appeared as amicus curiae on Court notice, submitted before us that the amendment effected in section 48 C.P.C. and the omission of Article 182 of the Limitation Act was in consequence of the recommendations contained in the Report of the Law Reform Commission 1967-70. This is correct as acknowledged in the preamble to the Law Reforms Ordinance (XII of 1972). The relevant portion dealing with execution of decrees in the Report of the Commission in paragraph 10 at page 377 reads as under:-- "

10. Time limit for execution of decree .-- After a decree-holder has obtained a decree, he gets twelve years to execute the same under section 48 of the Code. As he can execute his decree at any time during this long period, he does not generally rile any application under Order XXI, rule 11 for execution unless he has a reasonable expectation of obtaining full or partial satisfaction of his decree. But Article 182 of the Limitation Act, 1908, requires him to start execution proceedings within three years of the decree and then ' within three years of the final order passed on each application, if the judgment-debtor has not the capacity to satisfy the decree. He has to make these applications only to take what are known as steps in aid of execution within the meaning of Article

182. Public opinion is in favour of omitting Articles 182 and 183 of Schedule 1 to the Limitation Act and leaving the decree-holder to execute his decree at any time within the period prescribed under section 48 of the Code. It is also unanimously in favour of reducing the period of limitation for execution of decrees prescribed by section 48 of the Code read with Article 183 of the Limitation Act from twelve years to six years, provided Article 182 of the latter Act is so amended as to make it unnecessary for a decree-holder to make an application for execution of the decree every three years. We, therefore, recommend that section 48 of the Code and Article 183 of the Limitation Act be amended to reduce the period of limitation for execution of decrees from twelve years to six years and Article 182 of the latter Act be amended so that it may not be necessary for A decree-holder to make an application for execution of the decree every three years." At page 403 of the said Report while recording their conclusion the Commission observed:-- "We have examined the provisions contained in the Limitation Act and have come to the conclusion that these are not dilatory. We have elsewhere in this Report examined section 48 of the Code of Civil Procedure and Article 183 of the Limitation Act and have recommended that these should be amended so as to reduce the period of limitation for execution of decrees from twelve to six years. We have also recommended that Article 182 of the Limitation Act should be amended so that it may not be necessary for a decree-holder to make an application for execution of a decree within three years from the date of decree or from the date of the last application for execution of the decree. Besides that no amendment in the Limitation Act is necessary." However, Mr. Khalid Anwar stated that in the light of these recommendations of the Law Reforms Commission instead of amending Article 182 so as to make it unnecessary for a decree-holder to make an application for execution of a decree every three years, Article 182 was omitted in its entirety and the period of 12 years prescribed in section 48 was reduced to six years. He referred us to similar amendments made in the law of limitation in vogue in India, where Article 136 of the Limitation Act, 1963, replaces Article 182 of the old Limitation Act, whereby a period of 12 years limitation was provided, for execution of any decree, other than a decree granting a mandatory injunction by a Civil Court. In the third column, dealing with the time from which the period begins to run, clauses 5 to 7 of the old Article 182 were omitted and clauses 1 to 4 were put into simpler language. Also no reference was made to Article 183 and section 48 C.P.C., which were both repealed and omitted. According to the submission of Mr. Khalid Anwar the residuary Article 181 is attracted, to applications for execution, for which no period of limitation is provided in the Limitation Act or by section 48 C.P.C. The latter category, namely, applications governed by section 48 C.P.C., according to the learned counsel are those applications which arc made subsequent to the first application for execution of a decree. For such applications the maximum period of limitation is six years from the date of decree. Article 181 may also at this stage be reproduced as under:-- Description. of application Period of limita- Time from which period tion begins to run.

181. Applications for Three years When the right to apply which no period of limitation accrues. is provided elsewhere in this schedule or by section 48 of the Code of Civil Procedure, 1908. As section 48, C.P.C. is mentioned in Article 181 by way of exclusionary provisions obviously this Article has to be read with section 48, C.P.C., although B the two provisions arc independent and parallel provisions, with different scopes and objects. With the disappearance of Article 182 obviously no other Article of the Limitation Act is specifically attracted to the application for execution of the decree of a Civil Court, other than High Court. On the plain language of ,section 48, C.P.C. the object underlying that section was to provide an outer limit of time and prohibit the making of an order for execution of a decree on a "fresh" application "presented" after expiration of six years from the date of the decree etc. In order to see whether in the present case the limitation contained in section 48 is attracted or not it is necessary to determine whether execution was sought on a fresh application presented after the said period. The word "fresh" has been defined in the Oxford English Dictionary, Volume IV, to mean, inter alia, "new, recent" or "newly made". It, therefore, appears that the application T within the contemplation of the prohibition contained in section 48 was not the first execution application but any subsequent application, after such first application, which was presented beyond the prescribed period of six years. Construed in this light, and reading the two provisions together, it would appear that the effect of the amendment made by the Law Reforms Ordinance, 1972, is that the first application for the execution of the decree of a Civil Court would be I governed by the residuary Article 181 prescribing a period of three years and since any subsequent or fresh application for execution would be governed by section 48, C.P.C., it would be out of the purview of Article 181 on its express terms. In some of the Indian decisions the expression "fresh application" has been so construed to mean application for execution after the disposal of the first execution application. See Yadorao Wasudeorao Pathak v. Govindrao Ramji Pant A I R 1939 Nag. 245, Lekshmi Amma Kochukutty Amma and another v. Raman Pillai Kumara Pillai and others A I R 1952 Travancore-Cochin 268 and Venlappa and others v. Lakshmikant Rao A I R 1956 Hyd.

7. The position that emerges from the above discussion is that, as already stated, the first application for execution of a decree would be governed by the residuary Article 181 and the rest of the applications made, thereafter, will be governed by the six years time limit prescribed by section

48. Although the original purpose underlying section 48, read alongwith Articles 181 and 182 of the Limitation Act, before the amendment of the law was to provide maximum limit of time for execution of a decree. But in the changed position as a result of Law Reforms Ordinance, the only effect of section 48 would be to provide limitation for subsequent execution applications after the first one. The result would be that D if no application at all is made within the period prescribed by Article 181, the execution application made, thereafter, would be barred under the said Article and as such there would be no occasion to avail of the benefits of the extended time provided by section 48, C.P.C. In other words once an application for execution is made within time so prescribed, any number of applications for execution can be presented within the six years period from the date of decree. This construction, in my opinion is the only construction that can be placed on the consequent legal position arising out of the amendments made by the omission of Article 182 and substitution of six years period in section 48, C.P.C. Otherwise the provisions for repeated applications every three years or taking steps in aid of execution provided for in Article 182, having disappeared, section 48 would become redundant and ineffective. In this view of the matter since in the present case the first application for execution was submitted beyond the period of limitation prescribed by Article I 181 the learned Single Judge was right in holding that the same was out of time. This appeal, therefore, fails and is accordingly dismissed with no order as to costs. M.BA./M-1372/5 Appeal dismissed.