Jammu & Kashmir High Court - Srinagar Bench
Purni Devi And Another vs Babu Ram And Others on 9 April, 2018
Author: Mohammad Yaqoob Mir
Bench: Mohammad Yaqoob Mir
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
C. Rev No.33/2008,
MP No.36/2008
Date of order:-09.04.2018
Purni Devi and Anr. Vs. Babu Ram and Ors.
Coram:
Hon'ble Mr. Justice Mohammad Yaqoob Mir, Judge.
Appearance:
For the Petitioner/Appellant(s) : Mr. Raghu Mehta, Advocate.
For the Respondent(s) : Mr. L K Sharma, Senior Advocate with
Mr. Rahul Sharma, Advocate.
i) Whether approved for reporting in Yes
Law Journals etc.:
ii) Whether approved for publication
in Press: Yes/No
1. This revision petition is directed against the order dated 28.11.2007 passed by the Court of Munsiff, Hiranagar, dismissing execution Petition captioned "Madan Lal and Ors. V. Babu Ram and Anr.", as barred by limitation.
2. Suit for possession filed with regard to land measuring 5 marlas covered under Survey No.787 situated at Jatwal on 01.06.1984 stand decreed on 10.12.1986, in terms whereof, defendants therein (respondents) were directed to remove the material of their hut which existed on the said land and were also directed to surrender the vacant land to the plaintiffs (petitioners herein).
3. Civil 1st Appeal filed was dismissed by the Appellate Court on 09.02.1990. Then Civil 2nd Appeal filed on 05.10.1990 was dismissed by this Court vide judgment dated 09.11.2000.
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4. Application for execution of the decree has been filed on 03.10.2005. Various objections were raised by the respondents (Judgment debtors) but finally they restricted their objection vis-à-vis limitation. Learned Executing Court accepted the objection and opined that the execution petition is barred by time. While doing so, has relied on the judgment rendered by this Court in the case J and K Bank Ltd. Etc. v. Amar Poultry Farm, AIR 2007 J&K 56 (Equivalent Citation: 2007 (2) JKJ 153), and concluded that the application for execution should have been filed within three years as is the time limit prescribed by Article 182 of the J & K Limitation Act. On the same basis while computing the period of limitation, learned Executing Court has observed that the Civil 2nd Appeal of the Judgment debtors has been dismissed on 09.11.2000. The application for execution has been filed on 03.10.2005, therefore, the execution petition has been filed after almost five years.
5. The question which arises for consideration is as to whether for execution of a decree, application has to be filed within 12 years as prescribed by Section 48 of the Code of Civil Procedure or within three years as prescribed by Article 182 of the J&K Limitation Act.
6. Similar question arose for consideration in the judgment rendered in the case of J and K Bank (supra) wherein it has been held that Section 48 of the Code of Civil Procedure shall not apply to first execution application as the same has to be filed within three years as prescribed by Article 182 of the J & K Limitation Act. Para 17 of the judgment is relevant to be quoted:
17. For the above reasons, I answer the question formulated above in the following manner:-
(a) that the limitation for the first execution application shall be governed by Article 182 of the Limitation Act, which runs from the dates specified in clauses 1 to 7 of Article 182;
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(b) where the first execution application has been dismissed on merits, no fresh execution application would lie for seeking the enforcement of the decree because the decision of the first execution application will operate as res judicata;
(c) Section 48 per se does not entitle a decree holder to file independent and fresh successive applications;
(d) In case an execution application filed within the period prescribed under Article 182 has not been dismissed on merit and the fresh application is not barred by any law, such application shall lie if filed within the inner period of three years as prescribed by Article 182 of the Limitation Act and the outer period of 12 years as prescribed by Section 48 Civil Procedure Code provided the decree is not for granting an injunction;
(e) In case an execution application filed within the period prescribed under Article 182 of the Limitation Act has not been dismissed on merits, the decree holder shall be entitled to file revival application for reviving the previous execution application within the outer limit of 12 years prescribed by Section 48 Civil Procedure Code, if such revival application satisfied the following tests;
(i) the previous application in the eye of law is still pending or has been dismissed for no fault of decree holder; (ii) if the two applications are in substance similar scope and character.
(f) For filing the revival application falling in (e) above there cannot be any period of limitation there for, except the one prescribed by Section 48 because a decree holder cannot be punished for a cause for which he is not responsible.
7. Period of limitation for execution of the decree is prescribed by Section 48 of the Code of Civil Procedure and also by Article 182 of the J&K Limitation Act. For facility of reference, Section 48 of the Code of Civil Procedure and also Article 182 of the J&K Limitation Act with situation 1 and 2 C. Rev No.33/2008, MP No.36/2008 Page 3 of 9 under the caption "time from which period begins to run'' is relevant to be quoted hereinbelow:
48.Execution barred in certain cases (1) Where an application to execute a decree not being a decree granting an injunction has been made, no order for the execution of the same decree shall be made upon any fresh application presented after the expiration of twelve years from-
(a) the date of the decree sought to be executed, or
(b) 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, the date of the default in making the payment or delivery in respect of which the applicant seeks to execute the decree.
(2) Nothing in this section shall be deemed-
(a)to preclude the Court from ordering the execution of a decree upon an application presented after the expiration of the said term of twelve years, where the judgment-debtor has, by fraud or force, prevented the execution of the decree at some time within twelve years immediately before the date of the application;
(b) Omitted.
Description of application Period of Limitation Time from which period begins to run
182. For the execution of a Three years, or, 1. The date of the decree or order of any where a certified decree or order, or Civil Court not provided copy of the decree 2. (where there has for [ by Article 183 or ] or order has been been an appeal) by section 48 of the Code registered, six the date of the of Civil Procedure years. final decree or order of the Appellate Court or the withdrawal of the appeal or
3. ....
4. ....
5. .....
6. .....
7. .....
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8. The issue of limitation has also been settled by the Hon'ble Apex Court in the judgment rendered in the judgment rendered in the case of "Prem Lata Agarwal Vs. Lakshman Prasad Gupta and others" reported in 1970 (3) SCC
440. Para 17 is advantageous to be quoted:
"17. The other question which arose before the Madras High Court was whether Section 15 of the Limitation Act, 1908, would apply to limitation prescribed in statutes other than the Limitation Act. Section 48 of the Code of Civil Procedure until its amendment on the passing of the Limitation Act, 1963, enacted that the decrees of the Civil Courts were to be executed within 12 years and not after that. The present case is governed by Section 48 of the Code of Civil Procedure as it stood prior to the deletion of that Section along with the passing of the Limitation Act, 1963. In Section 15 of the Limitation Act, 1908 it is enacted that in computing the period of limitation prescribed for any suit or application for a decree, execution of which has been stayed by injunction, the time of the continuance of the injunction shall be excluded. In the Madras High Court it was argued that the word 'prescribed' occurring in Section 15 of the Limitation Act could apply only to cases of limitation prescribed by the First Schedule to the Limitation Act, 1908, with the result that the benefit of exclusion of time by reason of operation of stay could not be availed of in cases of limitation prescribed by Section 48 of the Code of Civil Procedure. The Madras High Court relied on the decision in Kandaswami Pillai v. Kannappa Chetty (1951) 2 Mad. LJ. 668=(AIR 1952 Mad
186)(FB) which held that the expression 'prescribed' in Section 15(1) of the Limitation Act would apply not only to limitation prescribed in the First Schedule to C. Rev No.33/2008, MP No.36/2008 Page 5 of 9 the Limitation Act but also to limitation prescribed in general statutes like the Code of Civil Procedure. That is the correct statement of law and counsel for the appellant did not advance any contention to the contrary. It may, however, be stated that the effect of Section 48 of the Code of Civil Procedure is not to supersede the law of limitation with regard to execution of decrees. The Limitation Act prescribes a period of limitation for execution of decrees. Section 48 of the Code of Civil Procedure dealt with the maximum limit of time provided for execution, but it did not prescribe the period within which each application for execution was to be made. An application for execution was to be made within three years from any of the dates mentioned in the third column of Article 182 of the Limitation Act, 1908. An application for execution of a decree would first have to satisfy Article 182 and it would also have to be found out as to whether Section 48 of the Code of Civil Procedure operated as a further bar."
{Emphasis added}
9. Learned counsel for the petitioners tried to project that the petitioners had filed an application for execution of decree before Tehsildar which could not fructify and it is thereafter they have filed an application for execution before the Court of Munsiff, Hiranagar, therefore, the time spent in pursuing the proceedings before the Tehsildar is required to be excluded. The submission is totally misplaced. Answer lies in Section 38 of the Code of Civil Procedure which provides that a decree may be executed either by the court which passed it or by the court to which it is sent for execution. Admittedly, decree was neither sent nor could be sent to Tehsildar for execution. Petitioners had chosen a wrong forum. Admittedly, they have filed petition for execution before the C. Rev No.33/2008, MP No.36/2008 Page 6 of 9 competent court after the prescribed period of three years, therefore, applying the law as has been laid down by the Hon'ble Apex Court, the execution petition was clearly barred by limitation, therefore, dismissal of execution petition by the executing court (Court of Munsiff, Hiranagar) is well reasoned, so is not interferable.
10. The said position of law as it existed in Central CPC and Central Limitation Act was noticed to be fruitful source of litigation and a weapon in the hand of dishonest decree holders and dishonest judgment debtors. The Law Commission of India had recommended maximum period of limitation for the execution of a decree or order of any Civil Court should be 12 years from the date when the decree or order became enforceable. It was also mentioned therein that normally a decree holder is to realize his decree within period prescribed but an exception was required to be made to the effect that the Court may order the execution of the decree upon an application presented within twelve years. So after expiration of the period of twelve years, application could not be filed.
11. In pursuance to the recommendation made by the Law Commission of India, Section 48 of the Central Code of Civil Procedure was omitted and Article 182 of Central Limitation Act was replaced by present Article 136 prescribing a period of twelve years for filing execution petition from the date decree or order became enforceable. Section 48 of the Code of Civil Procedure providing for limitation of twelve years for the execution of the decree also stand replaced by Article 136 of the Act.
12. In the judgment rendered by the Hon'ble Apex Court in the case of Akkayanaicker v. A.A.A. Kotchadainaidu reported in 2004 (12) SCC 469, the position of the recommendation of the Law Commission of India and the amendment incorporated repealing Section 48 of the Code of Civil Procedure as C. Rev No.33/2008, MP No.36/2008 Page 7 of 9 well as Article 182 of the Limitation Act introducing Article 136 of the Limitation Act, 12 years period has been prescribed for execution of the decree from the date it has become enforceable.
13. From the judgment of the Hon'ble Apex Court rendered in the case of Anandilal and another v. Ram Narian and others, reported as AIR 1984 Supreme Court 1383, Para 6 is relevant to be quoted:
"6. It is well settled that Section 48 of the Code was controlled by S.15(1) of the Limitation Act. Section 48 of the Code enacted a rule of limitation and prescribed a period of 12 years for an application for execution of decrees and orders. It has since been repealed by Section 28 of the Limitation Act, 1963 which enacts that "in the Code of Civil Procedure, 1908, (Act V of 1908), Section 48 shall be omitted". In its place a new provision Art. 136 has been introduced and that prescribes "for the execution of any decree (other than a decree granting a mandatory injunction) or order of any Civil Court a period of 12 years, etc." Thus, the substance of Section 48 continues to be the law and for that reason, and also for the reason that with regard to pending applications, the law as laid down in the decisions interpreting S.48 might have to be referred to, it is necessary to give reasons."
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14. On the similar lines, amendment in the State Code of Civil Procedure as well as State Limitation Act is required so as to bring it at par with the period of limitation prescribed i.e. 12 years.
15. In the final analysis, the revision petition being without merit is dismissed.
16. Copy of the judgment be sent to the Commissioner/Secretary to Government, Department of Law, for follow up action for amendment on the lines Section 48 of the Central Code of Civil Procedure and Article 182 of the Limitation Act have been amended
17. Copy of the order be also sent to the Court of Munsiff, Hiranagar, for information.
(Mohammad Yaqoob Mir) Judge Jammu 09.04.2018.
Raj Kumar Pronounced today on 09.04.2018 in terms of Rule 138(3) of the Jammu and Kashmir High Court Rules, 1999.
(M. K. Hanjura) Judge C. Rev No.33/2008, MP No.36/2008 Page 9 of 9