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IN THE SUPREME COURT OF INDIA

             CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.   2524          OF 2012 (Arising out of S.L.P. (civil) No. 25038 of 2009

Bimal Kumar & Another        ... Appellants

Versus

Shakuntala Debi & Others                ...  

Respondents

J U D G M E N T   

Dipak Misra, J.

Leave granted.

2. In  this  appeal,  the  assail  is  to  the  order  dated  

19.9.2009 passed by the learned single Judge of Jharkhand  

High Court at Ranchi in C.R. No. 53 of 2007 by which he  

has  dislodged  the  order  dated  10.7.2006  passed  by  the  

learned Sub-Judge (I),  Ranchi,  whereby he had dismissed

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the Execution Case No. 8 of 2004 filed by the respondents  

as being barred by limitation.

-

3. Filtering the unnecessary details, the facts which are  

requisite to be frescoed for the purpose of disposal of the  

present appeal are that one Kanilal Kasera filed a Partition  

Suit No. 131 of 1962 against his father, Nanak Kasera, and  

other  brothers.  The  suit  was  compromised  leaving  aside  

Kishori Lal Kasera, the father of the present appellants, and  

a joint petition of compromise between the plaintiff and the  

defendant Nos. 1, 2, 4 to 9 and 11 to 18 was filed.  It is  

worth noting that Kishori Lal Kasera had appeared in the  

suit and filed the written statement but thereafter chose not  

to contest.     

4. The  petition  of  compromise  contained  that  the  

defendant Nos. 1, 9, 11 and 12 had relinquished and given  

up  all  their  interests  in  item  Nos.  3  and  8  of  the  suit  

schedule of property, being Holding No. 285 of new holding  

No. 509A of Ward No. II situated on portion of Municipal  

Survey Plot  No.  621 and Holding No.  431 of  Ward No.  1

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situated  on  Municipal  Survey  Plot  No.  902,  and  further  

declared that they had no claim or concern with any other  

properties involved in the suit; that the business, namely,  

“SEVEN BROTHERS STEEL FURNITURE WORKS”, item 5 of  

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the schedule,  belonged exclusively to the defendant No. 2,  

Moti  Lal  Kasera,  and neither  the  plaintiff  nor  any of  the  

other  defendants  either  ever  had  or  shall  ever  have  any  

claim  or  interest;  and  that  one  half  of  the  house  and  

premises comprised in Municipal Holding No. 431, Ward No.  

1, item 3 of the schedule, and half of Holding No. 509 A of  

Ward II, situated on portion of M.S. Plot No. 631, item 2 of  

the schedule,  shall belong to the defendant No. 2 with all  

the liabilities and outstanding dues and the plaintiff and the  

other defendants shall have no liabilities or interest in the  

said properties; and that the business carried on under the  

name of ‘Chotanagpur Tin Works’, item 6A of the schedule,  

was  the  sole  separate  business  of  the  defendant  No.  5,  

Prakash  Kumar  Kasera,  and  the  plaintiff  or  the  other  

defendants had no claim on the said property.

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5. The application further contained that the partition of  

the house and premises comprised in Holding No. 431 of  

Ward I, item 3 of the schedule, marked in green colour in  

the exhibit, shall belong exclusively to the defendant no. 4,  

Mohan Lal Kasera, and neither the plaintiff nor the other  

defendants shall have any claim or interest; that the -

business of iron shop at Bazaar Tan Ranchi, item 6 (c) of  

the schedule,  was the separate and exclusive business of  

the defendant No. 6, Surendra Lal Kasera, and none others  

had any claim or interest and the portion of the building  

and premises comprised in Municipal  Holding No.  431 of  

Ward No. I, item 3 of the schedule, marked in yellow colour,  

shall also belong to the defendant No. 6 and no one else had  

any claim or interest; that the portion of the building and  

premises comprised in Municipal Holding No. 431 of Ward  

No. I, item 3 of the schedule, marked in blue colour, and  

one-half of the shop premises comprised in Holding No. 509  

A over portion of M.S. Plot No. 621 being item No. 2 of the  

schedule  to  the  plaint  shall  exclusively  belong  to  the  

plaintiff and he shall have absolute right over the same.  

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6. That  apart,  the  plaintiff  had  agreed  to  pay  up  all  

outstanding  dues  of  Bindrilal  Agarwalla  against  the  

defendant No. 1 and none of the defendants shall be liable  

for the same.

7. It  was also agreed upon that the House situated on  

Holding  6  Ward  II  of  the  Ranchi  Municipality  being  

comprised of Khata No. 71 plot No. 72 area 61 decimal and  

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plot  No.  79  area  7½  decimal  total  area  measuring  14  

decimal, being item No. 4 of the schedule and the house and  

premises  comprised  of  Holding  No.  180  Ward  III  being  

survey plot No. 92 area 0.30 Karies and Municipal Survey  

Plot  No.  92 area  0.063  Karies  total  area  0.093  Karies  of  

Hajamtolio,  Ranchi  being  item  No.  5  were  separate  and  

exclusive  properties  of  Smt.  Rama Devi  and  shall  belong  

exclusively to the defendant No. 7, Srimati Rama Devi, the  

widow of Hira Lal Kasera, and no one else shall have any  

claim  or  concern  in  the  said  property;  that  the  shop  

premises  being  holding  No.  509  B  of  Ward  II  of  Ranchi  

Municipality situated on portion of M.S. Plot No. 621 being

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item  No.  1  of  the  schedule  and  the  house  premises  

comprised of Holding No. 133(g) of Ward II being item No. 8  

and the properties comprised Holding No. 145 A of Ward No.  

I measuring 6½ decimals being plot No. 268 of Khata No. 34  

of Village Konka, being item No. 9 of the schedule belonged  

to  the  defendant  No.  8,  Sreemati  Munitri  Debi,  wife  of  

Prakash Lal Kasera, the defendant No. 5, and none had any  

claim or interest; that the house and the premises situated  

at Madhukam, Ranchi comprised in Holding No. 318 of -

Ward I being item No. 10 of the schedule was the property of  

the defendant No. 13, Shreemati Deojani Debi, wife of Moti  

Lal Kasera, the defendant No. 2.

8. It  was  stipulated  that  the  business  and  properties  

mentioned  in  item  Nos.  6(b)  and  7  were  erroneously  

included in the suit.

9. Be it noted, in Clause (K) of the petition of compromise,  

it was clearly stated as follows: -

“k) That  the  parties  are  in  separate  and  exclusive  possession  of  the  properties  respectively  belonging  to  them  and  have  obtained separate and exclusive possession of

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the  properties  allotted  to  their  respective  shares.”

10. The  learned  trial  Judge  being  satisfied  accepted  the  

petition of compromise and passed a compromise decree on  

3.4.1964 treating Kishori Lal Kasera ex parte.

11. When the matter stood thus, the legal representatives  

of  Kishori  Lal  Kasera,  the  present  appellants,  initiated  a  

fresh partition suit No. 49 of 1973 on the ground that the  

earlier decree was obtained by fraud.  In the said suit, they  

claimed 1/11th share of the property for themselves which -

was involved in the earlier suit being P.S. No. 131 of 1962.  

The said suit was dismissed on 27th August, 1994.  Being  

dissatisfied  with  the  said  decision,  Kishori  Lal  Kasera  

preferred Title Appeal No. 109 of 1994 which was dismissed  

for want of prosecution on 6.1.2004.  At this juncture, the  

respondents  herein  filed  execution  case  No.  8  of  2004  

seeking execution of the decree passed in P.S. No. 131 of  

1962.  Be it noted, in the meantime, Kishori Lal Kasera had  

breathed his last and, therefore,  the execution was levied  

against the legal heirs, the appellants herein.

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12. An  objection  was  raised  by  the  appellants  that  the  

execution proceeding was barred by limitation and hence,  

deserved  to  be  dismissed.   The  learned  Sub-Judge  

dismissed the execution proceedings on the ground that it  

was absolutely barred by limitation.

13. Aggrieved by the said order, the respondents preferred  

C.R. No. 53 of 2007 under Section 115 of the Code of Civil  

Procedure (for short ‘the CPC’) and the learned single Judge  

allowed the said Revision on the ground that the execution  

case  preferred  by  the  revisionists  was  not  barred  by  

limitation.  For the said purpose, the learned single Judge -

placed  reliance  on  the  decision  in  Bharti  Devi  v. Fagu  

Mahto1.  The legal  substantiality  of  the said order  is  the  

subject-matter of challenge in this appeal.

14. We  have  heard  Mr.  Amboj  Kumar  Sinha,  learned  

counsel for the appellants, and Mr. S.S. Shamshery, learned  

counsel for the respondents.

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2009 (3) JLJR 90 : AIR 2010 Jhar 10

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15. The two seminal and spinal issues that had emanated  

before the executing court and the High Court and have also  

spiralled to this Court are whether the decree passed by the  

court  of  first  instance  on  the  basis  of  compromise  had  

become enforceable  or  it  had the status of  a  preliminary  

decree requiring completion of a final decree proceeding to  

make it  executable and whether the execution proceeding  

was untenable being hit by the law of limitation.        

16. We shall advert to the first issue first.  On a perusal of  

the tenor of the entire compromise application, we are of the  

considered view that the parties to the compromise settled  

the entire controversy.  The defendant No. 3 who was the  

predecessor-in-interest of the present appellants was not -

allotted any share.  As is perceptible from the terms of the  

compromise which formed a part of the decree, the parties  

had  conceded  that  they  were  in  separate  and  exclusive  

possession of the properties respectively belonging to them  

and further had obtained separate and exclusive possession  

of the properties allotted to their respective shares.   Thus,  

their  respective  shares  and  exclusive  possession  were  

admitted on the basis of the said compromise petition and a

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decree had been drawn up.  The Court had taken note of the  

contents of the compromise wherein it had been prayed that  

the decree be passed in accordance with the terms of the  

compromise.   It  is  clearly  evincible  that  the  Court  had  

proceeded on the basis that it was finally disposing of the  

suit in accordance with the terms set out in the compromise  

petition.  The factum of exclusive possession had also been  

recorded  in  the  application  of  compromise.   It  had  been  

clearly  stated  that  parties  have  been  put  in  separate  

possession of the various immovable properties.   

17. Quite  apart  from the  above,  in  the  counter  affidavit  

filed by the respondents, it is admitted that possession had  

remained with the parties as per the allotment.  It is -

profitable  to  reproduce  the  said  portion  of  the  counter  

affidavit:-

“It is pertinent to mention here that the parties  who were allotted the share as per the decree  were stated to be in possession of their share  and  it  was  written  in  the  judgment  that  no  preliminary,  final  decree  or  execution  was  required  to  be  filed.   Though  Kishori  Lal  Kasera had full knowledge of the compromise  decree  but  he  did  not  challenge  the  decree  within  the  period  of  limitation  therefore  the  compromise decree became final and absolute

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against  all  the  parties,  including  Kishori  Lal  Kasera.”

18. Despite the aforesaid, a contention has been advanced  

by the learned counsel for the respondents that in a suit for  

partition, drawing up of a final decree is imperative.  In this  

context,  we  may  usefully  refer  to  the  decision  in  

Rachakonda Venkat Rao And Others v. R. Satya Bai (D)  

by  L.R.  And  Another2 wherein  it  has  been  stated  as  

follows:-

“The compromise application does not contain  any clause  regarding future  course  of  action  which gives a clear indication that nothing was  left  for future on the question of partition of  the  joint  family  properties.   The curtain  had  been finally drawn.”

After so stating, the Bench proceeded to observe as follows:-  

“The decree as a matter of fact leaves nothing  for future.  As noticed earlier in a preliminary  decree normally the court declares the shares  of the parties and specifies the properties to be  partitioned  in  the  event  of  there  being  a  dispute about the properties to be partitioned.  After  declaring the shares of  the parties and  the  properties  to  be  partitioned,  the  Court  appoints a Commissioner to suggest mode of  partition in terms of O. XXVI, R. 13, C.P.C.  A  

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AIR  2003 SC 3322 : 2003 7 SCC 452

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perusal of Order XXVI, R. 13 C.P.C. shows that  it  comes  into  operation  after  a  preliminary  decree for partition has been passed.  In the  present case, there was no preliminary decree  for partition and, therefore, R. 13 of O. XXVI  does not come into operation.  If the plaintiffs  considered the decree dated 13th July, 1978 as  a  preliminary  decree,  why  did  they  wait  to  move  the  application  for  final  decree  proceedings for 13 years?  The only answer is  that  the  plaintiffs  knew  and  they  always  believed  that  the  1978  decree  was  a  final  decree for partition and it was only passage of  time  and  change  in  value  of  the  properties  which was  not  up to  their  expectations  that  drove plaintiffs to move such an application.”    

19. In Muzaffar  Husain  v. Sharafat  Hussain3, it  has  

been held as follows:-

“We think the decree passed by the civil Court  should be treated as a final order for effecting  a  partition.   It  is  true  that  the  decree  was  passed on the basis of a compromise filed by  -

the parties, but the fact remains that it was  passed in a partition suit, and had the effect  of allotting a specific portion of the property to  the plaintiff as his share in the property.  The  conclusion  at  which  we  have  arrived  is  supported by a decision of the Madras High  Court  in  Thiruvengadathamiah  v.  Mungiah4”  

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 AIR 1933 Oudh 562

4

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20. In  Raghubir  Sahu  v. Ajodhya  Sahu5, the  Division  

Bench of Patna High Court had ruled thus: -

“In the present case, the decree was passed on  compromise.   It  was  admitted  that  by  the  compromise,  the  properties  allotted  to  the  share of each party were clearly specified and  schedules of  properties  allotted to each were  appended  to  the  compromise  petition.  Therefore,  no  further  inquiry  was  at  all  necessary.  In such circumstances, the decree  did not merely declare the rights of the several  parties  interested  in  the  properties  but  also  allotted  the  properties  according  to  the  respective shares of each party.  Therefore, it  was not  a preliminary  decree but it  was the  final decree in the suit.”

21. In  Renu Devi  v. Mahendra Singh and others6,  the  

effect  of  a  compromise  decree and allotment  of  shares in  

pursuance  of  the  said  decree  was  dealt  with.   The  two-  

Judge Bench referred to the decisions in Raghubir Sahu v.  

Ajodhya Sahu (supra) and Muzaffar Husain (supra) and -

(1912)  ILR  35 Mad 26

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AIR 1945 Pat 482

6

AIR 2003 SC 1608

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opined that the law had been correctly stated in the said  

authorities.    

22. In the said case, after referring to CPC by Mulla, this  

Court, while drawing a distinction between the preliminary  

and the final decree, has stated that a preliminary decree  

declares the rights or shares of the parties to the partition.  

Once the shares have been declared and a further inquiry  

still  remains  to  be  done  for  actually  partitioning  the  

property and placing the parties in separate possession of  

the divided property, then such inquiry shall be held and  

pursuant to the result of further inquiry, a final decree shall  

be passed.  A preliminary decree is one which declares the  

rights and liabilities of the parties leaving the actual result  

to be worked out in further proceedings.  Then, as a result  

of  the  further  inquiries  conducted  pursuant  to  the  

preliminary  decree,  the  rights  of  the  parties  are  finally  

determined and a decree is passed in accordance with such  

determination,  which  is  the  final  decree.   Thus,  

fundamentally,  the  distinction  between  preliminary  and  

final decree is that: a preliminary decree merely declares the  

rights and shares of the parties and leaves room for some -

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further inquiry to be held and conducted pursuant to the  

directions  made  in  the  preliminary  decree  which  inquiry  

having been conducted and the rights of the parties finally  

determined  a  decree  incorporating  such  determination  

needs to be drawn up which is the final decree.

23. Applying  the  principles  laid  down  in  the  aforesaid  

authorities, it is graphically clear that in the case at hand,  

the parties entered into a compromise and clearly admitted  

that they were in separate and exclusive possession of the  

properties and the same had already been allotted to them.  

It was also admitted that they were in possession of their  

respective  shares  and,  therefore,  no  final  decree  or  

execution was required to be filed.   It is demonstrable that  

the  compromise  application  does  not  contain  any  clause  

regarding  the  future  course  of  action.   The  parties  were  

absolutely conscious and rightly  so,  that their  rights had  

been fructified  and their  possession had been exclusively  

determined.  They were well aware that the decree was final  

in  nature  as  their  shares  were  allotted  and  nothing  

remained to be done by metes and bounds.  Their rights

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had  attained  finality  and  no  further  enquiry  from  any  

spectrum -

was required to be carried out.   The whole thing had been  

embodied  in  the  decree  passed  on  the  foundation  of  

compromise.    

24. It is to be borne in mind that the term ‘compromise’  

essentially  means  settlement  of  differences  by  mutual  

consent.  In such process, the adversarial claims come to  

rest.  The cavil between the parties is given a decent burial.  

A compromise which is arrived at by the parties puts an end  

to the litigative battle.  Sometimes the parties feel that it is  

an  unfortunate  bitter  struggle  and  allow  good  sense  to  

prevail  to  resolve  the  dispute.    In  certain  cases,  by  

intervention  of  well-wishers,  the  conciliatory  process  

commences and eventually, by consensus and concurrence,  

rights get concretised.    A reciprocal settlement with a clear  

mind  is  regarded  as  noble.   It  signifies  magnificent  and  

majestic  facets of  the human mind.  The exalted state of  

affairs  brings  in  quintessence  of  sublime  solemnity  and  

social stability.  In the present case, as the factual matrix  

would reveal, a decree came to be passed on the bedrock of

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a compromise in entirety from all angles leaving nothing to  

be done in the future.   The curtains were really drawn and  

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the Court gave the stamp of approval to the same.  Thus,  

the inescapable conclusion is that the compromise decree  

dated 03.04.1964 was a final decree.   

25. Presently, we shall dwell upon the issue whether the  

execution  levied  by  the  respondents  was  barred  by  

limitation or not.  The executing Court, by its order dated  

10.07.2006, accepted the plea of the present appellants and  

came to hold that the execution petition filed by the decree  

holder  was  hopelessly  barred  by  limitation.   In  the  Civil  

Revision, the learned Single Judge overturned the decision  

on  several  counts;  (i)  that  no  steps  were  taken  and  no  

objection was raised by the father of the opposite parties for  

setting aside the ex parte decree passed in the first suit, if  

he was aggrieved by it,  for about 9 years, though he had  

appeared and had full  knowledge about the first  suit;  (ii)  

that  as  per  the  compromise  decree,  the  parties  were  in  

possession of  the  respective  shares  allotted  to  them and,

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accordingly, neither preliminary nor final decree was drawn  

up and there was no occasion for the petitioners for filing  

execution case for enforcement of the compromise decree;  

(iii) that the second suit challenging the compromise decree  

-

passed  in  the  first  suit  remained  pending  for  about  21  

years; (iv) that the appeal filed against the dismissal of the  

second suit also remained pending for about 10 years; (v)  

that after the appeal was dismissed and the judgment and  

decree passed in the second suit became final, the execution  

case was filed by the petitioner alleging dispossession from  

the family  business  being  run in  the  ground floor  of  the  

building; and (vi) that on the basis of such allegation, the  

compromise  decree  passed  in  the  first  suit  became  

enforceable.   

26. Apart  from the aforesaid reasons,  the learned Single  

Judge  has  opined  that  after  the  execution  case  was  

admitted  by  the  predecessor  of  the  learned  Sub-Judge  

presumably after condoning the delay, the successor should  

not have dismissed it on the ground of limitation.  He placed

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reliance  on the  decision  rendered in  Bharti  Devi (supra)  

and buttressed the  reasoning that  there  was no delay in  

levying  of  the  execution  proceeding.   The  learned  single  

Judge further took note of the pending Misc. Appeal No. 369  

of 2008 preferred by the present appellants to reinforce the  

conclusion.      

-

27. It  is  well  settled  in  law  that  a  preliminary  decree  

declares  the  rights  and liabilities,  but  in  a  given  case,  a  

decree may be both preliminary and final and that apart, a  

decree may be partly preliminary and partly final.  It has  

been  so  held  in  Rachakonda Venkat  Rao  v. R.  Satya  

Bai7.  It is worth noting that what is executable is a final  

decree and not a preliminary decree unless and until  the  

final decree is a part of the preliminary decree.  That apart,  

a final decree proceeding may be initiated at any point of  

time.  It has been so enunciated in Hasham Abbas Sayyad  

v. Usman Abbas Sayyad and others8.

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(2003) 7 SCC 452

8

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28. In  Bikoba Deora Gaikwad and others  v. Hirabai  

Marutirao Ghorgare and others9, a two-Judge Bench of  

this  Court  has  held  that  only  when  a  suit  is  completely  

disposed of, thereby a final decree would come into being.  

In  the  said  case,  it  has  also  been  laid  down  that  an  

application for taking steps towards passing a final decree is  

not an execution application and further, for the purposes  

of construing the nature of the decree, one has to look to -

the  terms thereof  rather  than speculate  upon the  court’s  

intention.   

29. Regard  being  had  to  the  aforesaid  principles  and  

having  opined  that  the  decree  passed  on  the  basis  of  a  

compromise in the case at hand is the final decree, it is to  

be addressed whether the execution is barred by limitation.  

Article 136 of the Limitation Act (for brevity ‘the Act’) reads  

as follows: -

“Description of  application

Period of Time from which period begins  to run

(2007) 2 SCC 355

9

(2008) 8 SCC 198

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Limitation

136. For  the  execution of any  decree  (other  than  a  decree  granting  a  mandatory  injunction)  or  order  of  any  civil court.

Twelve  years

When  the  decree  or  order  becomes enforceable or where  the decree or any subsequent  order  directs  any payment of  money or the delivery of any  property  to  be  made  at  a  certain  date  or  at  recurring  periods,  when  default  in  making  the  payment  or  delivery  in  respect  of  which  execution  is  sought,  takes  place;

Provided  that  an  application  for  the  enforcement  or  execution of a decree granting  a  perpetual  injunction  shall  not be subject to any period of  limitation.”

30. On a perusal of the said Article, it is quite vivid that an  

application for execution of a decree (other than a decree -

granting a mandatory injunction) or order of any civil court  

is  to  be  filed  within  a  period  of  twelve  years.   In  Dr.  

Chiranji  Lal (D)  by LRs.  v.  Hari  Das (D)  By LRs.,10 the  

question arose whether a final decree becomes enforceable  

only when it is engrossed on the stamp paper.  The three-

Judge Bench dealing with the controversy has opined that  

10

(2005) 10 SCC 746

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Article 136 of the Limitation Act presupposes two conditions  

for the execution of the decree; firstly, the judgment has to  

be converted into a decree and secondly, the decree should  

be enforceable.  The submission that the period of limitation  

begins  to  run  from  the  date  when  the  decree  becomes  

enforceable, i.e., when the decree is engrossed on the stamp  

paper, is unacceptable.  The Bench, while elaborating the  

said facet, proceeded to lay down as under: -

“24. A decree in a suit for partition declares the rights of the  parties in the immovable properties and divides the shares by  metes and bounds. Since a decree in a suit for partition creates  rights and liabilities of the parties with respect to the immovable  properties, it is considered as an instrument liable for the  payment of stamp duty under the Indian Stamp Act. The object of  the Stamp Act being securing the revenue for the State, the  scheme of the Stamp Act provides that a decree of partition not  duly stamped can be impounded -

and once the requisite stamp duty along with penalty, if any, is  paid the decree can be acted upon.

25. The engrossment of the final decree in a suit for partition  would relate back to the date of the decree. The beginning of the  period of limitation for executing such a decree cannot be made  to depend upon date of the engrossment of such a decree on the  stamp paper. The date of furnishing of stamp paper is an  uncertain act, within the domain, purview and control of a party.  No date or period is fixed for furnishing stamp papers. No rule  has been shown to us requiring the court to call upon or give any  time for furnishing of stamp paper. A party by his own act of not  furnishing stamp paper cannot stop the running of period of  limitation. None can take advantage of his own wrong. The  proposition that period of limitation would remain suspended till  stamp paper is furnished and decree engrossed thereupon and

23

only thereafter the period of twelve years will begin to run would  lead to absurdity. In Yeshwant Deorao Deshmukh v.  Walchand Ramchand Kothari [1950 SCR 852 : AIR 1951 SC  16] it was said that the payment of court fee on the amount  found due was entirely in the power of the decree holder and  there was nothing to prevent him from paying it then and there;  it was a decree capable of execution from the very date it was  passed.

26. Rules of limitation are meant to see that parties do not resort  to dilatory tactics, but seek their remedy promptly. As  abovenoted, there is no statutory provision prescribing a time  limit for furnishing of the stamp paper for engrossing the decree  or time limit for engrossment of the decree on stamp paper and  there is no statutory obligation on the Court -

passing the decree to direct the parties to furnish the stamp  paper for engrossing the decree. In the present case the Court  has not passed an order directing the parties to furnish the  stamp papers for the purpose of engrossing the decree. Merely  because there is no direction by the Court to furnish the stamp  papers for engrossing of the decree or there is no time limit fixed  by law, does not mean that the party can furnish stamp papers  at its sweet will and claim that the period of limitation provided  under Article 136 of the Act would start only thereafter as and  when the decree is engrossed thereupon. The starting of period of  limitation for execution of a partition decree cannot be made  contingent upon the engrossment of the decree on the stamp  paper.”

31. In  Ram Bachan Rai and others  v. Ram Udar Rai  

and others11, a contention was advanced to the effect that  

as the cost for enforcement of decree was not quantified, the  

period  of  limitation  could  not  have  commenced  from the  

11

(2006) 9 SCC 446

24

date  of  judgment  and decree.   The  Court  referred to  the  

decision in  Dr. Chiranji Lal (supra) and, after referring to  

paragraphs 24 and 25 of the said decision, expressed the  

view  in  unequivocal  terms  that  the  inevitable  conclusion  

was that the suit was barred by limitation.   

-

32. In  the  present  case,  the  learned  counsel  for  the  

respondents,  in  support  of  the  order  passed  in  Civil  

Revision,  has  canvassed  that  when  a  suit  was  filed  for  

declaring  the  earlier  compromise  decree  to  have  been  

obtained by fraud and the same remained pending for more  

than 21 years, the period of limitation commenced only after  

the suit  and the appeal  arising therefrom were dismissed  

since  only  on  the  conclusion of  the  said  proceeding,  the  

decree became enforceable and further, the time consumed  

in the said proceeding is to be excluded for computation of  

the period of limitation under Article 136 of the Limitation  

Act.   We  have  already  held  that  the  decree  was  a  final  

decree.   Therefore,  it  was  immediately  executable.   The  

question,  thus,  would  be  ‘was  the  time  arrested?’   On a

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query being made, it was fairly conceded at the Bar that at  

no point of time, there was any order by any court directing  

stay of operation of the judgment and decree passed in P.S.  

No.  131  of  1962.   The  question  that  emanates  for  

consideration is whether the period during which the suit  

and appeal preferred by the appellants remained pending is  

to be excluded for the purpose of limitation.  In this context,  

-

we  may  usefully  refer  to  the  dictum in  Ratan Singh  v.  

Vijay Singh and Ors.12 wherein,  while  dwelling upon the  

concept  of  enforceability  of  a  decree  and the effect  of  an  

order  of  stay  passed  by  the  appellate  court,  the  Bench  

stated thus:

“8.  When  is  a  decree  becoming  enforceable?  Normally  a  decree  or  order  becomes  enforceable  from its  date.  But  cases  are  not  unknown  when  the  decree  becomes  enforceable  on  some  future  date  or  on  the  happening  of  certain  specified  events.  The  expression  “enforceable”  has  been  used  to  cover  such  decrees  or  orders  also  which  become enforceable subsequently.

12

2000 (8) SCALE 214

26

9.  Filing  of  an  appeal  would  not  affect  the  enforceability  of  the  decree,  unless  the  appellate court stays its operation. But if the  appeal  results  in  a  decree  that  would  supersede  the  decree  passed  by  the  lower  court,  it  is  the  appellate  court  decree  which  becomes enforceable. When the appellate order  does not amount to a decree there would be no  supersession and hence the lower court decree  continues to be enforceable.”

33. In  Ram Bachan Rai  (supra),  the  two-Judge  Bench  

took note  of  the  fact  that  an application under  Order  IX  

Rule 13 for setting aside the ex parte decree was dismissed  

which was assailed in a miscellaneous appeal and -

ultimately in a civil revision.  At no stage, stay was granted  

by  any  court.   The  decree  holders  therein  filed  an  

application for execution after 12 years.  Regard being had  

to the same, it was held that the execution proceeding was  

barred by limitation.  

34. In  this  context,  it  is  fruitful  to  refer  to  the  

pronouncement  in  Manohar  v.  Jaipalsing13. In  the  said  

case, it has been held as follows:

13

AIR 2008 SC 429

27

“15. The order of purported stay passed by this  Court in terms of its Order dated 21.3.1988 is  also  of  no  assistance  to  the  plaintiff  decree- holder.  The  Special  Leave  Petition  was  filed  only against the Order dated 1.7.1985 refusing  to  review  its  judgment  and  decree  dated  2.9.1983.  The stay of  operation of  the Order  dated 1.7.1985 for all intent and purport was  meaningless  as  the  review  petition  already  stood dismissed.  

16.  Further  direction  of  this  Court  that  computation of  mesne profit would go on and  the same would be deposited by the appellant  is of no consequence inasmuch as by reason  thereof neither proceeding was stayed nor had  the operation of the judgment and decree been  stayed.  In  fact,  it  was  an  order  passed  in  favour of the decree holder. The said direction  did not come in his way to execute the decree  for possession.”

-

35. In the case at hand, the compromise decree had the  

status  of  a  final  decree.  The  latter  suit  filed  by  the  

appellants  was  for  partition  and  declaring  the  ex  parte  

compromise decree as null and void. As has already been  

stated,  there  was no stay of  the  earlier  judgment  or  any  

proceedings  emanating  therefrom.  In  the  absence  of  any  

interdiction from any court, the decree-holder was entitled  

to execute the decree. It needs no special emphasis to state  

that there was no impediment or disability in the way of the

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respondents to execute the decree but the same was not  

done.  Therefore,  the  irresistible  conclusion  is  that  the  

initiation of execution proceedings was indubitably barred  

by limitation. Thus analyzed, the reasons ascribed by the  

learned  single  Judge  are  absolutely  unsustainable.  The  

period of limitation stipulated under Article 136 of the Act  

could not have been condoned as has been so presumed by  

the  learned  single  Judge.  The  reliance  placed  on  the  

decision  in  Bharti  Devi  (supra)  is  totally  misconceived  

inasmuch as in the said case, the execution proceeding was  

initiated for permanent injunction.  No exception can be -

taken to  the  same and,  therefore,  reliance  placed on the  

said decision is misconceived.  

36. Ex consequenti, the appeal is allowed, the order passed  

by the High Court in Civil Revision is set aside and that of  

the executing court is restored.  The parties shall bear their  

respective costs.  

.....................................J.

29

     [Dalveer Bhandari]

.....................................J.       [Dipak Misra]

New Delhi; February 27, 2012.