Jammu & Kashmir High Court
J And K Bank Ltd. And Ors. vs Amar Poultry Farm on 22 March, 2007
Equivalent citations: 2007(2)JKJ153, AIR 2007 JAMMU AND KASHMIR 56, 2007 AIHC (NOC) 550 (J. & K.) = AIR 2007 JAMMU AND KASHMIR 56
JUDGMENT Y.P. Nargotra, J.
1. The common but important question of law arising for consideration in these revision petitions is What is the period of limitation for filing an application seeking enforcement of the decree of a civil Court and for that matter whether the successive independent application(s) for execution of the decree of the Civil Court are permissible and if permissible what is the period of limitation for such execution application?
2. Answer to the above question has to be found from the provisions made in Sections 48 of the Jammu and Kashmir Code of Civil Procedure, 1977 and Article 182 of the Jammu and Kashmir Limitation Act. It shall, therefore, be apt to take notice of the above provisions. Section 48 C.P.C. reads:
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.
And Article 182 of the Limitation Act provides as follows:
Description of Period of Limitation Time from which period begins to
application run.
For the execution of Three years or, 1. The date of the decree or order, or,
a decree or order of where a certified
any Civil Court not copy of the decree.
provided for
2. (Where there has been an appeal)
the date of the final decree or order
of the Appellate Court, or the
withdrawal of the appeal, or
3. (where there has been a review of
judgment) the date of the decision
passed on the review, or
4. (where the decree has been amended)
the date of amendment, or
5. (where the application next
hereinafter mentioned has been made)
the date of the final order passed
on application made in accordance
with law to the proper Court for
execution or to take some step in
aid of the execution of the decree
or order, or
6. (in respect of any amount, recovered
by execution of the decree or order,
which the decree holder has been
directed to refund by a decree passed
in a suit for such refund) the date
of such last mentioned decree or,
in the case of an appeal there from,
the date of the final decree of the
Appellate Court or of the withdrawal
of the appeal, or
7. (Where the application is to enforce
any payment which the decree or order
directs to be made at a certain
date) such date.
3. From the bare reading of above two provisions juxta posed, it is manifest that Article 182 deals with the period of limitation for filing an execution application for the first time for seeking enforcement of a decree or final order of a Civil Court, whereas Section 48 deals with the subsequent application(s) which may be filed for seeking execution of the decree where the decree has remained un-satisfied despite filing of the first (previous application). Section 48 fixes the outer limit after which the execution of the unsatisfied decree or final order cannot be granted by executing Court.
4. For the first application, the period prescribed by Article 182 is three years, which starts to run firstly from the date of the decree or final order of a Civil Court in terms of Clause 1 of Third Column, and in the cases which are covered by clauses 2 to 7 from the dates specified in such clauses. There cannot be any dispute to this legal position. However, the controversy being raised here relates to the filing of fresh application (s) where the decree has remained un-satisfied despite the filing of the first execution application within the period stipulated in Article 182.
5. The contention of Mr. S.D. Sharma, learned Counsel for the petitioner in Civil Revision No. 38/05, is that the period of three years prescribed for the first execution application also applies to such fresh execution application(s) which may be filed for seeking enforcement of the decree or final order, which has remained un-satisfied. According to him the period of limitation prescribed for such fresh application(s) would not be and cannot be 12 years as envisaged by Section 48 of the Code of Civil Procedure. Alternatively, he submits that such fresh application(s), if independently has/have to be filed can be filed within three years from the date of filing of the previous execution application and not later than that.
6. On the other hand, Mr. Sethi, learned Counsel for petitioner in Civil Rev. No. 91 /2002 concedes that the first execution application is governed by Article 182 and, therefore, the limitation prescribed there-for 'would be three years either from the date of decree or from the extended date in the cases covered by Clauses 2 to 7. However, according to him, the subsequent execution application(s), if filed where the decree or final order has remained unsatisfied, the limitation prescribed therefor would be twelve years in terms of Section 48 CPC and not three years under Article 182 of Limitation Act.
7. As already observed, Section 48 CPC can have no application to the first execution application, which may come to be filed for seeking enforcement of the decree. The limitation for filing such an application is three years as envisaged by Article 182 of the Limitation Act. But, there may be such a situation where a decree or final order of a Civil Court may not be executed/satisfied due to some reason' beyond the control of the decree holder and the fresh execution application might be needed to be filed for seeking execution/satisfaction of the decree. Section 48 refers to such fresh applications. Section 48 of the Code of Civil Procedure, does not in itself create any right in the decree holder for entitling him to file any fresh or subsequent application(s). It only bars the execution in certain cases. It only provides that the decree other than a decree granting injunction shall not be executed on any such fresh application presented after 12 years after the date of the decree or the date of default in making the payment or delivering of any property where the decree or any subsequent order has fixed a date or period there-for except, however, in the cases covered by Clause (a) of Sub-section (2) of Section 48 CPC. Only the outer limit of time for filing fresh application for execution of a decree has been fixed up by Section 48 CPC. All the subsequent applications filed for seeking execution of a decree have to stand the test of both Section 48 CPC and Article 182 of the Limitation Act; meaning thereby that all independent and subsequent execution applications can be filed within the inner limit of three years from the dates specified by Article 182 of Limitation Act and outer limit of 12 years as contemplated by Section 48 CPC. If first application comes to be dismissed or disposed of and the decree remains un-satisfied then the fresh execution application would lie only, if it meets the above test. For instance, suppose the first execution application is filed within one year from the date the decree by a decree holder for seeking execution of a decree and the same is dismissed say in default of appearance of the; decree holder or for non-prosecution, such order of dismissal not being an order on merits, cannot operate as res-judicata for fresh application(s), so the decree holder would have two options i.e. either to file fresh execution application or to file the restoration application for revival of dismissed application. If he chooses to file fresh application, the same would be governed by the limitation rule of 3 years as envisaged by Article 182, and thus would be maintainable independently within the period of next two years.
But if he files the restoration application for reviving the first execution application, such restoration would be governed by such period of limitation as has been prescribed independently in the Limitation Act, subject however, to the outer limit of 12 years as envisaged by Section 48 CPC. There may also be a situation where first execution application is disposed of without there being execution of the decree because of some obstacle coming in the way of the execution proceedings like some Court order staying the execution or because of the application filed by the judgment-debtor or the person claiming under him under Clause (6) of Article 182. What the decree holder should do? In the former case the decree holder would have two options i.e. either he would have to take step-in-aid for removal of the obstacle in the execution of the decree or to wait for the removal of such obstruction. If lie takes steps in aid, the limitation period of three years as envisaged by Article 182 would be extended to a future date provided the step-in-aid taken by him falls within the ambit of Clause 5 of Article 182 and in case of an application of clause 6, still the period of limitation would start running from a future date. It would be beneficial here to re-produce Clause 5, though it is at the cost of repetition. Clause 5 of Article 182 of the Limitation Act reads:
5. Where the application next hereinafter mentioned has been made the date of the final order passed on application made in accordance with law to the proper Court for execution or to take some step in aid of the execution of the decree or order,
8. From the close reading of the above clause, it transpires that it deals with two situations in which the limitation of three years would be deferred to a future date. Firstly in case where the application under Clause (6) of Article 182 has been filed by the judgment debtor or the person claiming through him for seeking refund of any amount recovered in execution of a decree or final order in the proper Court i.e. the Court competent to execute the decree or the final order, three years period prescribed for filing application for seeking execution of the decree would start running from the date such application is decided or to the date on which any appeal, if filed against such decision has been decided or the date on which such appeal has been withdrawn and secondly in the case where decree holder files an application for taking steps to expedite the execution of the decree in the Court which is competent under law to execute the decree the period of three years would run from the date of decision of such application or from the date on which any appeal against such order if filed by him is decided or withdrawn.
9. Such an application be in any form, like in the form of application, plaint, memo of appeal etc. made to the proper Court i.e. the Court competent to execute the decree in question, to be a step-in-aid is the one which is made during the pendency of execution proceedings. An application made by a decree holder when no execution proceedings are pending cannot be treated as step-in-aid in execution. It shall be a fresh application for seeking execution. Step-in-aid application cannot be a fresh independent execution application. And in case the decree-holder instead of taking steps in aid prefers to wait and has to file fresh application for seeking execution after the removal of the obstacle, he would be entitled to file the same if period of 3 years as envisaged by Article 182 has not expired, or if the same has expired after the removal of the obstacle/vacation of the stay order within such extended period during which the obstacle/stay remained operational because the said period would have to be excluded for computation of period of limitation in terms of Section 15 of the Limitation Act.
10. For illustrating the above view point, I would take the aid of the case of Prem Raj v. Ram Charan . In that case the facts involved in brief were:
Kariya and his wife Seva purchased the house in dispute by a registered deed on April 20,1905. Kariya died in 1936 leaving behind him Seva and Ram Charan, his son. On August 16, 1951 Ram Charan mortgaged the house to Prem Raj (the appellant). Prem Raj obtained a preliminary decree for foreclosure on August 16,1952, and also the final decree on July 16, 1953. In the meanwhile on 7-2-1952 Seva gifted the entire house to Prakash Chandra, son of Ram Charan, the respondent. Fortified by this Gift, Prakash Chandra frustrated several attempts of the appellant to get possession of the house in execution of his decree. He made three unsuccessful attempts to execute the decree till the end of 1954. He made the fourth attempt on April 25,1956. Shortly thereafter on December 07, 1956, Prakash Chandra instituted a suit against the appellant and his father Ram Charan for a declaration that the preliminary and final decree for foreclosure in favour of the former were not binding on him and for a perpetual injunction restraining the appellant from taking possession of the house in execution of the aforesaid decree. The suit was dismissed on November 25,1958. He filed an appeal and obtained an order staying execution of the decree on December 31,1958. The appeal Court partly allowed his appeal on October 21,1959. It was held that he was the owner of a half share in the house by virtue of the gift deed from Seva in his favour. So the appeal Court issued an injunction restraining the appellant from executing his decree with respect to a half share in the house. The appellant filed a second appeal in the High Court of Madhya Pradesh against the judgment of the appeal Court. Prakash Chandra also filed a cross-objection in respect of his claim for the remaining half share in the house. Both the appeal and the cross-objection were dismissed by the High Court on January 01, 1962.
Turning back to the fourth execution application filed by the appellant, it was dismissed on June 23,1958. The fifth execution application was filed by the appellant on July 28, 1964 for possession over half of the house. The respondent objected to this application on the ground of limitation. The objection was dis-allowed by the execution court as well as by the appeal Court. It was however, upheld by the High Court of Madhya Pradesh. So the application was dismissed as time-barred.
11. From the above facts it needs to be noticed that the decree in question was passed on 16-7-1953. First three execution applications in which decree could not be executed were filed upto the end of 1954 i.e. within three years period from the date of the decree and therefore, were within the period of limitation prescribed by Article 182 of the Limitation Act. The decree holder filed the 4th execution application on April 25,1956. The same was also within time being with the period of three years from the date of decree. The Fifth execution application which had been dismissed by the Court being time barred had been filed on 28-7-1954 i.e. beyond the period of three years as envisaged by Article 182, but was within the period of 12 years from the date of the decree i.e. within the period prescribed for by Section 48 CPC.
12. Going by the contention of Mr. Sethi, learned Counsel for one of the revision petitioner, the same having been filed within the period of 12 years from the date of the decree would not be barred by limitation in terms of the provisions made in Section 48 CPC.
13. Now keeping the above factual position and submission of Mr. Sethi, let us see how the Honble Supreme Court dealt with the question of limitation. Before their Lordships for urging that 5th execution application was within time and not barred by limitation, the following three conditions were raised:
(1) Limitation is saved by clauses, 1,2 and 4 of Article 182;
(2) Limitation is saved by Clause 5 of Article 182;
(3) The fifth application for execution was really an application to revive the fourth execution proceeding and therefore, it: was not time barred.
Regarding the contention No. 1 their Lordships held, We are unable to appreciate how the High Court decree in Prakash Chandras suit will give afresh starting point of limitation to the appellant under Clause (1) of Article 182. Clause (1) is to be read against the backdrop of the words in the first column for the execution of a decree. So the date of the decree (whether of the first Court or of the appellate Court) which is put in execution furnishes the starting point of limitation. Their Lordships observed, It is plain that neither the decree of the appeal court nor the decree of the Higli Court reversed, varied or amended in any manner the final fore-closure decree of the appellant. The fore-closure decree remained intact and fully alive. It could be executed against the respondent according to its tenor. He could be ejected from the whole house. But it could never have any effect against Prakash Chanderas paramount title to a half share in the house. Parkash Chandra obtained his decree in a collateral suit. The appellants second appeal against the decree of the appeal Court in favour oj Prakash Chandra was not directed against the foreclosure decree now in execution, nor would it, as shown earlier, affect the decree in any manner in relation to the respondent/judgment-debtor. So his appeal and the High Court decree passed in his appeal would not fall within Clauses (2) and (4) of Article 182 and would not furnish a fresh starting point of limitation for executing the foreclosure decree against the respondent/judgment-debtor.
Regarding contention No. 2 their Lordships observed as follows:
In order to get the advantage of Clause 5 of Article 182, the appellant has to satisfy three conditions:
(a) The written statement filed by him in Prakash Chandras suit, his resistance to the first appeal of Prakash Chandra and his second appeal in the High Court are an application.
(b) The Court in which Prakash Chandras suit and first appeal were instituted and the High Court wherein the appellants second appeal was filed are the proper Court;
(c) The proceedings specified in (a) are a step-in-aid of execution of the decree sought to be executed by the appellant.
14. Their Lordships observed:
An application is the making of an appeal, request or petition to a person, the request so made (Shorter Oxfort English Dictionary, 1955 Edn, 86). Thus the making of a request to a person is of the essence of an appl ication. In some cases it has accordingly been held that the plaint is an application within the meaning of that word in Clause 5 of Article 182. See Rudra Naraiu v. Maharaja of Kapurthala AIR 1936 Oudh 248. The Bombay, Calcutta and Madras High Courts have, however, held to the contrary. See Raghunandan Pershad v. Bhugoolal (1890) ILR 17 Cal 268. It is unnecessary to resolve this conflict of opinion between the High Courts in this appeal. To oppose Prakash Chandras suit, the appellant had filed a written statement. So we are directly concerned with the question whether a written statement is an application within the meaning of Clause 5 of Article 182. According to Order VII, Rule-1, Civil Procedure Code the plaint should specify; the relief which the plaintiff claims. So it may be plausibly argued that the plaint, which makes a request to the Court, is an application. But unlike the plaint, the written statement ordinarily does not include any request to the Court. It is simply a defence to the plaintiffs claim. Order VIII, Code of Civil Procedure deals with matters which ought to be included in a written statement. Rule 6 thereof, enables the defendant to make a claim for set-off. To the extent a written statement includes the claim for set off, it may be treated as a plaint. It is perhaps arguable that a written statement filed in an inter-pleader suit may also be treated as; a plaint. But we express no opinion on this aspect. Leaving aside Rule 6 and the inter-pleader suit there is nothing in Orders VI and VIII, Code of Civil Procedure to show that a written statement could legally include any request to the Court. We are aware of the general practice in the: Mufassil of including in the written statement, a prayer that the suit should be dismissed with costs. But this prayer is supererogatory and would not convert a written statement simpliciter into an application within the meaning of Clause 5 of Article 182.
15. Their Lordships further observed:
Just as the written statement of the appellant cannot be regarded as an application, so also the resistance to the appeal filed by Prakash Chandra cannot be held to be an application. Counsel for the appellant, however, submits that the appellants second appeal in the High Court would be an application.
16. Their Lordships while dealing with the above submission observed It may be assumed that the appellants second appeal in the High Court is an application within the meaning of Clause 5 of Article 182. But this does not conclude the matter in favour of the appellant. He has to show that the High Court is the proper court, proper Court is defined in Explanation II to Article 182, as the court whose duty it is to execute the decree. Ordinarily, the High Court will not be the proper court as so defined, because it is normally not the duty of the High Court to execute a decree. According to Section 38, Civil Procedure Code a decree may be executed either by the court which passed it or by the court to which it is sent for execution. So the proper court would be the court which passed the foreclosure decree in favour of the appellant.
17. Their Lordships held in that case:
So it is not certain whether Prakash Chandras suit was instituted in the Court which could execute the final foreclosure decree of the appellant. But even if it is assumed that the suit was instituted in the Court which could execute the said decree, We are unable to hold that the appellants second appeal to the High Court arose out of an application made to the proper Court because his written statement in the suit was not an application made to the proper Court.
18. Regarding contention No 3, it was held:
An application may be said to be one seeking to continue or to receive the previous execution application if--
(1) It is in the eye of law still pending or has been dismissed for no fault of the decree-holder; and (2) If the two applications are in substance similar in scope and character.
Where the previous application for execution has been properly and finally disposed of by the execution Court, the subsequent application cannot be said to be in continuation of it or to be a revival application (See Tripura Sundaramma v. Abdul Khader AIR 1933 Mad 418 (FB). In the present case the previous applications (the fourth application) for execution was dismissed on June 23, 1956. The execution Court made this order, Decree-holder in person; Judgment-debtor absent. Process fee not paid. Dismissed as wholly infructuous. It appears from the judgment of the appeal Court, dated November 28, 1956 that the execution Court had dismissed the execution application on June 23, 1956, as the appellant had failed to pay process fee for the warrant of possession. It is plain from these orders that the previous execution application was not kept pending. On the contrary, it was dismissed on account of the appellants failure to pay process fee for the warrant of possession. Accordingly the last application for execution made on July 28, 1964 was not an application for continuing or reviving the previous application made on November 28,1956.
19. So on the above reasoning, their Lordships held the fifth application filed by the decree holder to be time barred.
20. Now in the case, the first application has not been disposed of finally, a decree holder who has not taken steps in aid as contemplated by Clause (5) is entitled to seek revival of his previous application by filing a revival application within the outer limit of 12 years as envisaged by Section 48 of the Code of Civil Procedure, provided his application satisfies the following two conditions, as stipulated by the Apex Court in the above judgment while considering contention No. 3 raised in the said case:
(a) the previous application in the eye of law is still pending or has been dismissed for no fault of decree-holder;
(b) if two applications are in substance similar in scope and character.
If the decree holder satisfies the above two conditions, his fresh application can be deemed to be a revival application for reviving his previous application which if filed within the limitation prescribed by Article 182 of the Limitation Act, which has not been finally disposed of.
21. 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;
(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 resjudicata;
(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 only if filed within the inner period of three years as contemplated by Article 182 of the Limitation Act and the outer period of 12 years as prescribed by Section 48 CPC 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 CPC, if such revival application satisfies 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 in 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.
Civil Revision No. 91/2002.
22. This revision petition has been filed by the Jammu and Kashmir Bank Ltd, who is represented by Mr. Sunil Sethi, Advocate. The respondents have not chosen to appear despite service to contest this petition.
23. The suit instituted by the revision petitioner against M/s Amar Poultry Farm, predecessor-in-interest of respondents No. 2 to 4, namely, Khazan Singh and respondent No. 5 Sain Dass for recovery of an amount of Rs 97,108. 27 with interest at the rate of 12.5% per annum with yearly rests from the date of filing of suit till the whole amount is liquidated, was decreed by the learned District Judge (Bank Cases) jammu by his judgment and decree dated 29-10-1991. The decree holder filed the first execution application bearing No. 22 on 3-7-1992. Same was within the period of limitation i.e. three years from the dare of the decree. The learned executing Court therefore, took the cognizance and started the proceedings for execuling the decree. The said application ultimately, came to be dismissed by order dated 11-12-1992. The order reads.
Nemo for the petitioner, nor has the list of properties been furnished. Thus, petition is therefore, dismissed for default. Consigned the file to the records.
Sd/-
District judge, Bank cases, Jammu
24. After the dismissal of the first application the decree holder Bank did not lake any steps for restoration of the first execution application No. 22 and instead filed second execution petition on 9-9-2000 i.e. after the lapse of seven years and nine months and two days from the date of dismissal of the previous application. Before the executing Court the judgment debtor took up the plea that execution proceedings should be dropped as the same were barred by time. Learned Additional District Judge (Bank Cases), Jammu (executing Court) dismissed the said application of the judgment debtor by holding that limitation prescribed was 12 years in terms of Section 48 CPC for filing fresh application for seeking execution of a decree. Therefore, it was not time barred.
25. Being aggrieved of the said order, the decree holder sought review of the order from the executing Court by filing review application No. 16/2000. Learned executing Court by its order dated 30-4-2002 allowed the review and held that the second execution application filed by the decree holder was barred by time. Being aggrieved of the order dated 30-4-2002 the decree holder Bank has preferred this revision petition.
26. The order impugned does not call for any interference. The second execution application filed on 9-9-2000 being not within the inner period of three years limitation from the date of passing of the decree, as prescribed by Article 182 is barred by time and thus is not maintainable. The said execution application is a fresh execution application and as already held could only be filed within the initial period of three years from the date of the decree as contemplated by Article 182. And because the said application can also not be treated as revival application for reviving the previous one as the same stood dismissed on account of the default of the decree holder. The contention of Mr. Sethi that any number of execution applications can be filed for seeking the enforcement of an un-satisfied decree within a period of 12 years from the date of the decree in terms of Section 48 CPC is without any merit for the reasons already given. The revision petition is therefore, without any force. It is as such, dismissed.
Civil Revision No. 17/2005:
27. This revision petition has been filed by S. Iqbal Singh against the respondent Chhanak Rani and Sain Dass. Respondent No. 1 was put on notice but he has not chosen to appear. Respondent No. 2 is stated to have expired but no steps for the impleadment of his LRs have been taken.
28. Mrs Sindhu Sharma, learned Counsel for the petitioner submits that the name of respondent No. 2 be deleted from the array of the respondents as he was also a co-judgment debtor like the revision petitioner and therefore the revision petitioner does not have any claim against him. Prayer is allowed. Name of respondent No. 2 is deleted from the array of the respondents.
29. On a suit filed by respondent No. 1 Chhanak Ram against the revision petitioner and the deleted respondent, an exparte decree came to be passed by the Court of learned Sub Judge, Kathua on 31-7-1990 in the following terms:
Hence an exparte decree for possession of land under Khasra No. 213-Min, 214-Min, 215-Min, 216-Min, 217-Min, 218-Min situated in village Ram Nagar, Tehsil Kathua (K&K State) as detailed in the plaint and the revenue record EXP-K and Aks Tatima Shajra EXPA as envisaged by the copy of Nishandehi report on the file is hereby passed with costs of litigation in favour of the plaintiff and against the defendants.
30. On 16-8-2000 the decree holder filed an application before the learned executing Court for seeking enforcement of the decree. The judgment-debtors opposed the execution on two grounds before the executing Court, viz, (i) that the decree could not be executed being barred by time; and (ii) that the decree in question is without jurisdiction, hence un-executable.
31. The learned executing court rejected both the grounds of challenge set up by the judgment debtor and by order dated 31-10-02 held the execution application within time and decree in question executable. For holding the execution application within time, the learned executing Court relied upon the provisions contained in Section 48 CPC. Being aggrieved of the order dated 31-10-2002 the revision petitioner, who is one of the judgment debtors has filed the present revision petition.
32. The impugned order passed by the learned executing Court cannot be up-held so far as it refers to the question of limitation. As already observed an execution application filed by a decree holder for seeking enforcement of the decree has to satisfy the test of limitation as envisaged by Art 182 of the Limitation Act and Section 48 of the Code of Civil Procedure. The execution application filed by the decree holder in the instant case was hopelessly barred by time for having been filed after the expiry of the initial period of three years, prescribed by Art 182. Same therefore, deserves dismissal. Accordingly, the revision petition is allowed. The order impugned of the executing Court is set aside and the execution application of the decree holder is dismissed as time barred.
Civil Revision No. 38/2005:
33. This revision petition has been filed by Sham Lal judgment debtor representing the interest of one of the deceased judgment debtor Khushia against the contesting respondents No. 1 to 3 and proforma respondents No. 4 to 8. One Mst Vanti W/O Gouri Shanker filed a suit for possession against Late Sh Khushia S/O Shiv Ram; Rora Ram S/O Nathu Singh and Roop Lal S/O Sant Ram in the court of learned Sub judge, Kathua. The learned trial Court by its judgment and decree dated 12-11-1968 dismissed the said suit. The plaintiff filed an appeal before the learned District judge, Kathua on 12-2-1975. Learned District judge, Kathua allowed the appeal and decreed the suit of the plaintiff reversing the judgment of the trial Court.
34. The decree holder Mst Vanti tiled first execution application on 19-7-1975. The said application though presented within the period of three years from the date of the order of the appellate Court and as such within lime came to be disposed of by virtue of the following order passed on 7-1-1977:
35. After the disposal of the afore-said first execution application, the decree holder filed second execution application on 20-12-1989. During the pendency of the second execution application decree holder Mst Vanti died and her legal representative Mst Shakuntala was substituted in her place so as to continue with the execution proceedings for enforcement of the decree against the judgment debtors. She also expired, and her LRs continued the prosecution of the execution application. Some of the judgment debtors aiso expired and therefore, their LRs were brought on record and the petitioner is one of them.
36. The judgment-debtors including the petitioner herein in order to oppose the execution application which was being continued by the LRs of the original decree holder Mst Vanti, they took up the objection that the execution application was barred by time, besides the other objections.
37. The learned executing Court by its order dated 31-1-2005 held the application maintainable and within time.
38. Aggrieved by the said order to the extent it deals with the question of limitation the judgment debtor Sham Lal has filed this revision petition.
39. The contention of the learned Counsel for the petitioner, Mr. S.D. Sharma, is that the execution application filed by the decree holder on 20-12-1989 was time barred for having been filed after the expiry of the period of 12 years of the decree as contemplated by Section 48 of the Code of Civil Procedure.
40. The contention of the learned Counsel for the respondent/decree holder Mrs Sindhu Sharma is that as the first application which had been filed by the decree holder for seeking execution of the decree on 19-7-1975 was within time and same by order dated 7-1-1977 was only consigned to records and was not dismissed and therefore, has to be treated as pending and therefore, the subsequent application should be deemed as revival application which can be revived at any time without there being any limitation for such revival. In support of her contention she relies upon the cases B.Shiva Shankar Dass and Ors. v. Mufti Syed Yousuf Hasan AIR 1934 All 481 : Chattar Singh and Anr. v. Kama I Singh and Ors. AIR 1927 All 16; and Katragadda Rmmayya and Anr. v. Kolli Nageswararao and Ors. . These are the authorities which have been relied by the learned executing Court for holding that the application of the decree holder was within time being only a revival application.
41. For the second execution application to be treated as revival application in the first place has to satisfy the following two tests:
(a) Previous application in law is still pending or has been dismissed for no fault of the decree holder;
(b) The two applications are in substance similar in scope and character.
42. The first application by order dated 7-1-1977 has been consigned to records due to the default of the decree holder in appearance for prosecution. The order though does not mention the word Dismissed any where but the character of the order is the dismissal of the execution application. Whether the said order can be construed in the manner where it can be held no dismissal in the eye of law?
43. Mrs. Sharma for urging that the order dt. 7.1.1977 has to be construed as to be no dismissal in the eye of law, relies upon Chattar Singh v. Kamal Singh AIR 1927 All 16 (FB). In the said case a Full Bench of Allahabad High Court held as follows:
44. In my opinion, an order made by a Judge upon an application which is still pending, that it be struck off or sent to the record room, made either without notice to the decree holder, or without giving him an opportunity of being heard, is a ministerial order, and cannot be regarded speaking generally as the judicial disposal of the application on the merits, though special circumstances may appear which make it so. Secondly, whether an application is in substance a fresh one, or an attempt to revive a former one, is, as a general rule, a question of fact to be decided with reference to all the circumstances of the case.
45. The above observation in my considered opinion cannot apply to the present case. It was the execution application filed by the decree holder, who was aware of the date of hearing fixed before the executing Court, but despite that he absented due to which the executing Court consigned the same to the records. Therefore, the order passed cannot be considered as a ministerial order. It was a judicial disposal though not on merits.
46. Order dated 7-1-1977 passed by the executing Court though does not contain the word, dismissed yet it has all the traits of dismissal of the execution application. As the dismissal was on account of default of the decree holder, therefore, the first test referred to above cannot be said to have been satisfied so as to make the second execution application filed by the decree holder an application for revival of the previous application. It is for all practical purposes a fresh execution application and as such no order for execution of the decree could be passed on the application on 20-12-1989 as by then 12 years period as contemplated by Section 48 CPC stood already expired. Therefore, the same being a fresh application filed beyond the period of limitatioiiprescribed by Section 48 CPC is time barred.
47. The other authorities which are being relied upon by Mrs. Sindhu Sharma viz. B.Shiva Shankar Dass and Ors. v. Mufti Syed Yousuf Hasan AIR 1934 All 481; Katragadda Rmayya and Anr. v. Kolli Nageswararao and Ors. have no bearing on the issue involved.
48. For the reasons stated above the order dated 31-1-2005 passed by the executing Court impugned in this revision petition cannot be up-held. Same is therefore, set aside and the execution application filed by the decree holder shall stand dismissed as time barred.