BHANU BHAKTA Vs. TEK CHAND

JUDGEMENT

(1.) The only question that arises for determination in this appeal is whether the learned District Judge is right in holding that the execution of the money-decree, passed in 1976 but put into execution for the first time in 1982, is not barred by limitation. In the rest of India where the present Limitation Act, 1963, governs the matter, the execution would not obviously be barred by time as Art. 136 of that Act provides a period of 12 years as the period of limitation for the execution of any such decree. But the Limitation Act of 1963, has not yet been extended to the State of Sikkim and, therefore, those provisions are not available here.

(2.) Previous to the Limitation Act, 1963, the Law on the point in the rest of India was contained in S. 48 of the C. P. C. 1908, read with Art. 182 of the preceding Limitation Act of 1908 and though S. 48 of the Code has been repealed by S. 28 of the Limitation Act of 1963 with effect from 1-1-1964, Art. 136 thereof has substantially reproduced the provisions of the repealed S. 48 (1) of the Code. The provisions of S. 48 of the Code were, like the provisions of Art. 136 of the present Limitation Act of 1963, simple enough and the Section only provided the outer period or the outer time-limit of 12 years after which no fresh application for execution of decree could be entertained. Article 182 of the Limitation Act, 1908, however, required, the first application for execution of decree to be made within three years and each successive application to be made within three years from the date of the final order passed on the last application, but all these exercises were to be made within the outer time-limit of 12 years fixed under S. 48 of the C. P. C. This Art. 182 of the Limitation Act of 1908, having been found to be a veritable and prolific source of endless and fruitless litigations, has been rejected by the present Act of 1963, which, as already noted, has substantially reproduced the provisions of S. 48 (1) of the C. P. C. in Art. 136 of the Act, while removing the former provisions from the Code of Civil Procedure and accordingly the outer period or time-limit of 12 years as fixed by S. 48 (1) of the C. P. C. has now become the only period of limitation for execution of decree and it is no longer necessary to keep the execution alive by successive applications within 3 years as was required by the Art. 182 of the Limitation Act, 1908.

(3.) In Sikkim, however, the preceding Limitation Act of 1908, containing Art. 182, was not extended or adopted at any point of time and the sketchy and the skeletal Sikkim Law of Limitation does not provide any period whatsoever for the application for the execution of a decree. The provisions of the Code of Civil Procedure of 1908 however, have all along been applied by the Courts in Sikkim in matters relating to Civil Procedure. As pointed out by this Court in Sagarmull Agarwal v. Union of India, AIR 1980 Sikkim 22 at 27, law need not invariably flow from a formal legislative authority and may be, as defined by Salmond, "the body of principles recognised and applied by the State in the administration of justice" and "rules recognised and acted on by Courts of Justice" and it has been pointed out further that there could be "no doubt that those provisions of the Civil Procedure Code, 1908, which have been consistently followed, applied, recognised and acted upon by the Courts of Sikkim have become the laws of Sikkim, notwithstanding the Baconian dictum that the function of the Court is not 'jus dare' but only 'jus dicere'". In the Division Bench decision of this Court in Jas Bahadur Rai v. Putra Dhan Rai, (1978) 3 Sikkim LJ 6 at 8 it was observed that "if this is characterised as making of laws by the Courts, it may be pointed out that the very same thing was done by the Courts in India during the early British period when the legislative laws in India were scanty and the Courts in India freely followed and adopted the principles of English Law in deciding points not covered by the Indian Laws in force" and it was observed further that "the Courts in Sikkim would have to continue to do that amount of law-making until such time when direct legislative laws will begin to hold and occupy the field. " It may, however, be noted that the concerned authority has now been able to find time to extend the Code of Civil Procedure, 1908, to Sikkim by Notification dated 16th Oct. 1982, but is again taking time to enforce the same by issuing necessary notification.