Jammu & Kashmir High Court
Union Of India And Others vs Raj Kumar on 23 October, 2019
Author: Rajesh Bindal
Bench: Rajesh Bindal
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
CR No. 154/2010 (O&M)
Reserved on : 14.10.2019
Pronounced on : 24.10.2019
Union of India and others ....Petitioners
Through:- Mr. Sandeep Gupta, Advocate
v/s
Raj Kumar .... Respondent(s)
Through: Mr. M. P. Gupta, Advocate.
Coram: HON'BLE MR. JUSTICE RAJESH BINDAL, JUDGE
ORDER
1. The present petition has been filed challenging the order dated 12.11.2010 passed by the learned Court below whereby rejecting the objections raised by the Judgment debtor, the learned Court below directed the petitioner/judgment debtor to pay the decretal amount.
2. Learned counsel for the petitioner submitted that suit filed by the respondent was decreed vide judgment of the trial court dated 21.08.2003. The petitioner challenged the aforesaid judgment and decree by filing appeal. As there was delay, application seeking condonation of delay of 275 days was filed. The same was dismissed by 1st Appellate Court vide order dated 20.10.2005. The order was challenged by filing Civil Revision No. 37/2006 in this Court. The same was dismissed on 28.12.2007. 2 CR No.154/2010
3. The respondent filed first application for execution of decree on 28.12.2005. However, the aforesaid execution application was dismissed in default on 03.02.2007. Thereafter fresh execution was filed on 06.05.2009, i.e. 3 years and 9 months after filing of the first execution application. As the second execution application filed by the respondent was barred by limitation, objections were filed before the executing court. The same were dismissed on 04.02.2010 and thereafter vide impugned order, the review filed against that order was also dismissed.
4. Further argument raised is that limitation as prescribed for in Section 48 CPC is for filing fresh application for execution. As in the case in hand, first application for execution filed by the respondent was dismissed for non prosecution, for filing any subsequent application limitation as provided for under Article 182 of the Limitation Act will apply and the period would be three years and that period can maximum be counted from the date the appeal is decided as is mentioned in the aforesaid Article. If counted from that date, the execution was beyond three years.
5. In support of his arguments, reliance was placed upon judgment of this Court in J&K Bank Limited and others vs Amar Poultry Farm, 2007 (2) JKJ 153 [HC].
6. On query by the Court as to how much money and time has been spent by the petitioner to contest litigation where the decree was passed by the Trial Court way back in the year 2003 only for a sum of ₹ 20,000/-, there was no answer.
7. On the other hand, learned counsel for the respondent decree holder submitted that first execution filed by him was dismissed for non 3 CR No.154/2010 prosecution on 03.02.2007. It was when civil revision filed by the petitioner was pending in this court. After the dismissal thereof, execution was filed on 06.05.2009. The same was not barred by limitation. The period has to be counted from the date the revision petition was dismissed as it was in continuation of the proceedings. In support of his arguments, reliance was placed on judgment of this court in State vs Hindustan Construction and Company, AIR 1993 J&K 16.
8. Heard learned counsel for the parties and perused the paper book.
9. Certain dates which are relevant for appreciating the contentions raised by learned counsel for the parties, are summed up hereunder.
28.04.1993 Suit for mandatory injunction filed by the respondent.
30.03.2000 During the pendency of the suit, the plaintiff filed application seeking amendment of the plaint. The same was rejected by the Trial Court.
Order was challenged by the plaintiff by filing Civil Revision No. 118/2002, which was disposed of on 21.11.2002 opining that there was no need to amend the plaint as alternate plea has already been taken.
21.08.2003 The aforesaid suit was decreed.
21.08.2004 The appeal against the judgment and decree of the trial court along with application seeking condonation of delay of 275 days in filing thereof, was filed.
20.10.2005 Application seeking condonation of delay in filing the appeal was dismissed.
28.12.2005 Application for execution filed by the decree holder.
4 CR No.154/201017.03.2006 Civil Revision No. 37/2006 was filed in this Court challenging order dated 20.10.2005 passed by the Principal District Judge Jammu dismissing the application seeking condonation of delay.
03.02.2007 The aforesaid application was dismissed in default.
28.12.2007 CR No. 37/2006 was dismissed by this Court.
06.05.2009 Fresh application for execution was filed.
04.02.2009 Rejecting the objections filed by the judgment debtor, the Executing Court issued warrants for recovery of the decretal amount of ₹ 20,000/-.
10.03.2010 The judgment debtor filed application for review of the order dated 04.02.2010.
12.11.2010 Rejecting the application for review
filed by the judgment debtor of the
order dated 04.02.2010, the
Executing Court directed the
judgment debtor to pay the decretal
amount of ₹ 20,000/- within one
month.
30.12.2010 Order dated 12.11.2010 challenged
before this court by the judgment
debtor by filing the present revision
petition.
10. Briefly the facts as could be gathered from the records pertaining to the earlier litigation on the issue are that the respondent/decree holder had purchased Indira Vikas Patra from the Post Office at Raghunath Bazar for ₹ 10,000/- on 16.03.1988. The same were to be repaid back on maturity after five years on 16.03.1993. A sum of ₹ 20,000/- was to be paid. On the same day, while the respondent was carrying the Indira Vikas Patras, he lost the 5 CR No.154/2010 same. F.I.R. for the same was got registered at Police Post, Residency Road, Jammu. Request was made to the postal authorities to issue the duplicates. Even legal notice dated 01.12.1988 also did not yield any result. When even on maturity the decree holder was not given any guidance as to how he could get the same encashed, he was forced to file the civil suit praying for mandatory injunction, on 28.04.1993. The suit remained pending for 10 years. The same was decreed on 21.08.2003. The decree holder was able to prove that he had purchased the Indira Vikas Patras and the same had not been encashed by anyone. Considering the aforesaid evidence on record, the trial court decreed the suit and directed the petitioner/judgment debtor to pay a sum of ₹ 20,000/- to the respondent.
11. The petitioner-judgment debtor thereafter slept over the matter. Appeal was filed against the judgment and decree of the trial court, on 21.08.2004 along with application seeking condonation of delay of 275 days in filing thereof. As there was no reasonable explanation for seeking condonation of huge delay of 275 days in filing the appeal and the grounds set out were found to be mis-conceived, the application was dismissed by the learned Principal District Judge, Jammu. Still aggrieved even though the amount involved was meager, the petitioner-judgment debtor filed Civil Revision No. 37/2006 in this court on 17.03.2006 with delay of 29 days in filing thereof. The same remained pending for 01 year 9 months 11 days. Vide order dated 28.12.2007, this court dismissed Civil Revision finding that the learned Court below had not committed any error in dismissing the application seeking condonation of huge delay of 275 days in filing the appeal as no ground was made out. Observation was also made even on merits that 6 CR No.154/2010 there was no case made out. During the pendency of the revision petition before this court, there was no interim stay granted to the petitioner/judgment debtor.
12. The decree holder filed execution application on 28.12.2005. The same was dismissed in default on 03.02.2007. It was after the appeal filed by the petitioner/judgment debtor had been dismissed by the 1st Appellate Court, however, before filing of revision petition before this Court. After the dismissal of the Civil Revision filed by the petitioner/judgment debtor on 28.12.2007, the decree holder filed fresh execution petition. To this objection was raised by the petitioner/judgment debtor that the execution filed by the decree holder was time barred. Rejecting the objections raised by the petitioner/judgment debtor, the learned Executing Court vide order dated 04.02.2010 issued warrants for recovery of the decretal amount. An application was filed by the petitioner seeking review of the aforesaid order. While dismissing the review application, the learned executing court vide order dated 12.11.2010 directed the judgment debtor to pay the decretal amount within a period of one month failing which appropriate order shall be passed. The matter was directed to be put up on 12.12.2010. Still not satisfied, the petitioner/judgment debtor challenged the same before this Court.
13. The argument raised is that the application for execution filed by the respondent/decree holder was time barred as the limitation as prescribed under Section 48 C.P.C. will not be applicable as it was not a fresh application. The limitation is to be seen in terms of Article 182 of the Limitation Act, 1995. The aforesaid contention was controverted by the decree holder stating that for satisfaction of a decree even multiple 7 CR No.154/2010 applications could be filed within the overall period of limitation and further the second application for execution having been filed within three years from the date of dismissal of Civil Revision by this court, the same can not be treated as beyond limitation.
14. However, I do not find that at this stage, merits of the controversy have required to be gone into by this Court. The case in hand is a glaring example of non application of mind by the petitioners at every stage of the case. It is a case pertaining to loss of Indira Vikas Patras purchased by the respondents. As his prayer for issuance of duplicates was rejected and despite request he was not paid the amount on maturity, suit was filed. During the pendency of the suit, the respondent/plaintiff filed application seeking amendment of the plaint to seek relief of recovery. The same was rejected, however, Civil Revision No. 118/2002 filed the respondent/plaintiff was disposed of by this Court with the observation that there was no need to amend the plaint as alternate relief has already been claimed.
15. The civil suit remained pending for more than 10 years. Thrice the matter had come to this court besides the appeal before the Principal District Judge and contest of the execution application. In the whole process running into more than 26 years, if taken from the date the civil suit was filed the petitioner/ judgment debtor must have spent more than ₹ 20,000/-, the decretal amount, on litigation besides other cost and the man hours spent by the officers/officials of the petitioners. This clearly shows that from the very first stage, the petitioner did not apply mind in taking proper decision as to whether case is worth contesting or not.
8 CR No.154/2010
16. On account of non-application of mind by legal cell or the officers/officials in such type of litigation the Courts are being flooded with frivolous litigation. For about 10 years, the present case remained pending in this court whereas the earlier litigation also remained pending for different periods. The period spent in the civil suit is not been referred to as that was the first stage and it was after final decision therein that the mind had to be applied by the authorities as to whether the case is worth contesting. The result of non-application of mind by the petitioners is that they have spent avoidable huge sum on litigation. Instead of shirking their duty, the officers in the legal department in any institution are bound to take responsibility and not just throw the frivolous litigation in Courts or the cases where meager amount is involved, especially taking those matters even up to the High Court level.
17. The mindset of the petitioner is evident from the fact that even after losing the case upto this Court, when Civil Revision filed by them was dismissed, the effort was not to pay the amount to the decree holder, immediately. They were waiting for the execution to be filed. This cannot be expected from the State authorities. Immediately thereafter decretal amount should have been paid to the respondent, without waiting for the execution to be filed. This conduct needs to be deprecated. Their action even resulted in undue harassment to the decree holder who is fighting for his petty sum of ₹ 20,000/-. Execution is normally required to be filed only where certain effective steps are to be taken by the Court for the purpose of execution of decree otherwise every litigant who is judgment debtor is bound to comply with the judgment and decree of its own after the same has attained finality. He should not wait for the execution to be filed. In fact what is experienced is 9 CR No.154/2010 that substantial part of litigation is generated in execution of the orders and decrees passed by the Court. It is because of the mindset of the judgment debtor which needs to be changed.
18. Rather in such type of cases it was the duty of the senior officers of the petitioners to find out as to who were the persons who were involved in delay in filing of the appeal and also taking decision to file frivolous appeal and take action against them instead of flooding the Courts with litigation and further harassing the opposite side. In fact in the process even the respondent may have spent money and energy which may be more than ₹ 20,000/-.
19. Considering the fact that the amount involved in the present litigation is meager sum of ₹ 20,000/-, this court would not like to interfere on merits.
20. For the reasons mentioned above, the present petition is dismissed.
(RAJESH BINDAL) JUDGE Jammu 24.10.2019 Raj Kumar Whether the order is speaking : Yes Whether the order is reportable : Yes RAJ KUMAR 2019.10.24 16:29 I attest to the accuracy and integrity of this document