Calcutta High Court
Prem Kumar Chowdhury vs Jiyajeerao Cotton Mills Ltd. And Ors on 6 January, 2025
IN THE HIGH COURT AT CALCUTTA
ORDINARY ORIGINAL CIVIL JURISDICTION
ORIGINAL SIDE
(COMMERCIAL DIVISION)
PRESENT:
THE HON'BLE JUSTICE BIVAS PATTANAYAK
IA NO. GA-COM/2/2024
IN
EC/278/2022
PREM KUMAR CHOWDHURY
VS
JIYAJEERAO COTTON MILLS LTD. AND ORS.
For decree holder : Mr. Jishnu Chowdhury, Advocate
Mr. Anirudha Agarwalla, Advocate
Ms. Ujjaini Chatterjee, Advocate
Ms. Debashri Mukherji, Advocate
For judgment debtor no.2 : Mr. Pratik Ghose, Advocate
Reserved on : 20th August, 2024
Delivered on : 6th January, 2025
ORDER
Bivas Pattanayak, J. :-
1. By the present application, the applicant has prayed for the following orders:
"a) An order be passed setting aside the judgement and decree dated 30th July, 2007;
b) Stay of all further proceedings in the above execution case, being E.C. No. 278 of 2022 (Prem Kumar Chowdhury -Versus- Jiyajeerao Cotton Mills Ltd & Ors) till disposal of this application.
c) In the alternative the applicant herein be given liberty to transfer only the shares lying with Investor Education & Protection Fund (IEPF) Authority.
d) Leave be given to the application herein to add Investor Education & Protection Fund (IEPF) Authority as a party to the execution case.2
e) Leave be given to the applicant herein to include the Official Liquidator, High Court, Madhya Pradesh as a party to the proceedings in place and stead of Judgement Debtor No.1.
f) An interim order in terms of prayers made hereinabove;
g) Such further and/or other orders be passed and/or direction or directions be given as this Hon'ble Court may deem fit and proper."
2. The execution proceedings being EC 278 of 2022 has been filed for execution of an ex parte judgment and decree dated 30th July, 2007 passed by this court in Suit No. 258 of 1992.
3. The applicant-judgment debtor no.2 contends as follows.
(i) The judgment debtor no.2 allotted partly convertible debentures to judgment debtor no.1 in the first series on 22nd February, 1989. The number of debentures allotted was 1225 against 7000 shares held by the judgment debtor no.1. The said 7000 shares were comprised of 4000 normal shares and 3000 bonus shares. The partly convertible debentures numbering 1225 were thereafter converted into shares being 1225 on 31st March, 1989.
(ii) The judgment debtor no.1 sold its entire holding of 4,80,875/- partly convertible debentures which it received from judgment debtor no.2 along with 1225 which were allotted as part of series 1, to Citi Bank N.A, Bombay under Folio No. 115441 dated 17th August, 1989.
(iii) The judgment debtor no.2 had never allotted any partly convertible debentures in the second series to the judgment debtor no.1 as alleged by the decree holder.
(iv) On the date of filing of suit on 30th March, 1992 by the decree-holder, the judgment debtor no.1 held 2,63,112 having face value of Rs. 10/- each. On the date of passing of order for winding up on 4th May, 1998 by the Gwalior Bench of the Madhya Pradesh High Court the judgment debtor no.1 held 100 shares 3 having a face value of Rs.10/- each. Lastly, on the date of judgment and decree passed by this Court on 30th July, 2007, the number of shares held by judgment debtor no.1 remained 100 shares with the face value of Rs. 10/- each. The said 100 shares were further divided into 500 shares with the face value of Rs. 2/-
each as on 17th October, 2016. The said 500 shares had been transferred to the Investor Education & Protection Fund Authority (in short 'IEPF') in terms of Section 124 of the Companies Act, 2013 (hereinafter referred to as the 'Act of 2013').
(v) The documents clearly demonstrate the number of shares being held by the judgment debtor no.1 in the judgment debtor no.2-company and that the judgment debtor no.2 in no way can allot shares contrary to the records available in electronic form.
(vi) The judgment debtor no.1 is presently under liquidation in terms of the order dated 4th May, 1998 of the Hon'ble High Court of Madhya Pradesh, Gwalior Bench and all assets of the judgment debtor no.1 are under the aegis of the Official liquidator who was not made a party in the suit and, therefore, the suit suffered from non-joinder of necessary parties.
(vii) Although the suit was filed prior to winding up but the decree was passed in the year 2007 after the order of the winding up was passed. However, no leave was sought for under Section 446 of the Companies Act, 1956 (in short 'Act of 1956'). The judgment debtor no.2 did not contest or refute the claims made by the decree holder-plaintiff since there are no material prayers against judgment debtor no.2 and the dispute was inter se between other parties in the suit. The judgment debtor no.2 can in no way allot shares and/or debentures to 4 the decree holder sans any directions and/or orders passed by any Court of Law. The decree passed by this Court on 30th July, 2007 is non-est and needs to be set aside primarily for non-compliance of Section 446 of the Act of 1956.
4. The decree holder keenly contested the application by filing affidavit-in- opposition with the following contentions. The judgment debtor nos. 1 and 2 were fully aware of the pendency of the suit and chose not to contest and challenge the same and as such the issues raised at this stage cannot be decided in execution proceedings for the simple reason that the decree cannot be questioned in an execution proceeding. The decree has not been appealed and as such it has reached finality and it is binding on all parties of the suit. In an execution proceeding, the Hon'ble Court may not go behind the decree. Further no question under Section 47 of the Civil Procedure Code (hereinafter referred to the 'Code') arises in the present application. The application is barred by law of limitation. Accordingly, the application needs to be dismissed in limini.
5. Mr. Pratik Ghose, learned advocate appearing for applicant-judgment debtor no.2 submitted that on 4th May, 1998 order of winding up of judgment debtor no.1 was passed by the Hon'ble Madhya Pradesh High Court, Gwalior Bench and in terms of the provisions contained in Section 124 of the Act of 2013, 500 shares of judgment debtor no.1 have been transferred to the IEPF. With the leave of this Hon'ble Court, only 500 shares may be transferred to the decree holder since judgment debtor no.2 after such winding up cannot allot shares contrary to the records available. Though at the time when the suit was instituted there was no order of winding up passed by the Hon'ble High Court 5 of Madhya Pradesh, Gwalior Bench, but at the time of passing of the decree in the year 2007, the judgment debtor no.1 was admitted into the winding up and liquidation. The decree holder-plaintiff did not seek leave under Section 446 of the Act of 1956 to proceed with the hearing of the suit and thus the decree passed by this Court during subsistence of the order of winding up is non-est in the eye of law and needs to be set aside on such ground. He seeks for appropriate orders in terms of prayers made in the application.
6. On the contrary, Mr. Jishnu Chowdhury, learned advocate for the decree holder submitted at the outset that it is settled proposition of law that the executing Court cannot go behind the decree unless it is shown that it is passed by the Court having inherent lack of jurisdiction which would make it a nullity. There is nothing on record to suggest that this Hon'ble Court lacked inherent jurisdiction to pass the decree. To buttress his contentions, he relied on the decisions of Hon'ble Supreme Court passed in Bhawarlal Bhandari versus Universal Heavy Mechanical Lifting Enterprises1 and Rafique Bibi (Dead) by LRs. versus Sayed Waliuddin (Dead) by LRs. and Others2. Further the contentions raised by applicant-judgement debtor no.2 in the present application are beyond the scope of Section 47 of the Code. Moreover, the decree-holder issued letter on 22nd February, 2008 to judgment debtor no.2 to comply the decree dated 30th July, 2007 and was also requested to rectify the debenture and/or shares Register of judgement debtor no.1 arising out of 'first' and 'second' series of partly convertible debentures and to insert the name of the decree holder in place of judgment debtor no.1 in shares and debentures 1 (1999) 1 SCC 558 2 (2004) 1 SCC 287 6 Register pursuant to the aforesaid decree passed by this Court. Though time and again the judgment debtor no.2 was intimated of the decree but it failed to respond in compliance to the decree passed by this Court. Thus, the present application is hopelessly barred under Article 137 of the Limitation Act since it has not been filed within the statutory period of three years from the date when right to apply accrued. He further indicated that in the application the applicant-judgement debtor no.2 has not made out any grounds for condonation of delay in filing the application belatedly. In light of his aforesaid submissions, he prayed for dismissal of the application.
7. In reply, Mr. Ghose, learned advocate for the judgment debtor no.2 submitted that the decree holder himself did not comply with the order of the court directing for depositing an amount of Rs.1,50,048/- within a reasonable period and only in the year 2024 the decree-holder sought for leave of the court to deposit the said amount. The argument advanced on behalf of the decree- holder that since no appeal has been preferred against the judgment and decree, hence the application is barred by limitation is actually self-deprecating inasmuch as the execution has been held by this Court to be within limitation by order dated 28th March, 2024 passed in GA-COM 1 of 2024. Thus the present application is within the period of limitation from date of such order.
8. Upon hearing the learned advocates representing the respective parties following issues have fallen for consideration in the present application:
(i) Whether the decree passed by this Court is a nullity since no leave under Section 446 of the Act 1956 to proceed with the hearing of the suit was sought for from the Hon'ble High Court of Madhya Pradesh, Gwalior 7 Bench before which the proceedings for winding up and liquidation of judgement debtor no.1-Jiyajeerao Cotton Mills Limited was pending?
(ii) Whether the contention raised by the applicant-judgement debtor no.2 in the present application is beyond the scope of Section 47 of the Code?
(iii) Whether the executing court can go behind such a decree?
(iv) Whether the present application is barred by limitation under Article 137 of the Limitation Act?
Issue No.1: Whether the decree passed by this Court is a nullity since no leave under Section 446 of the Act 1956 to proceed with the hearing of the suit was sought for from the Hon'ble High Court of Madhya Pradesh, Gwalior Bench before which the proceedings for winding up and liquidation of judgement debtor no.1 was pending?
9. It is the primary contention of the applicant-judgment debtor no.2 that the decree passed by this court dated 30th July, 2007 is non-est and needs to be set aside primarily for non-compliance of Section 446 of Act of 1956. In order to appreciate the above contention, it would be apposite to reproduce the relevant provisions contained in Section 446 of the Act of 1956 as hereunder:
"446. Suits stayed on winding up order .-(1) When a winding up order has been made or the Official Liquidator has been appointed as provisional Liquidator, no suit or other legal proceeding shall be commenced, or if pending at the date of the winding up order, shall be proceeded with against the company, except by leave of the Tribunal and subject to such terms as the Tribunal may impose.
(2) The Tribunal shall, notwithstanding anything contained in any other law for the time being in force, have jurisdiction to entertain, or dispose of-
(a) any suit or proceeding by or against the company;
(b) any claim made by or against the company (including claims by or against any of its branches in India);
(c) any application made under section 391 by or in respect of the company;
(d) any question of priorities or any other question whatsoever, whether of law or fact, which may relate to or arise in course of the winding up of the company;
whether such suit or proceeding has been instituted, or is instituted, or such claim or question has arisen or arises or such application has been 8 made or is made before or after the order for the winding up of the company, or before or after the commencement of the Companies (Amendment) Act, 1960.
(3) x x x (4) Nothing in sub-section (1) or sub-section (3) shall apply to any proceeding pending in appeal before the Supreme Court or a High Court." 9.1. The aforementioned provisions contains that when a winding up order has been made or the Official Liquidator has been appointed as provisional Liquidator, no suit or other legal proceeding shall be commenced, or if pending at the date of the winding up order, shall be proceeded with, against the company, except by leave of the Court. It is not in dispute that leave under 446 of the Act of 1956 was not obtained by the decree-holder-plaintiff from the Hon'ble Court before which the petition for winding up and liquidation of judgement debtor no.1-Jiyajeerao Cotton Mills Limited was pending. The question to be examined whether in the absence of such leave the decree passed by this Court in the suit is a nullity. Similar question fell for consideration before this Hon'ble Court in Roopnarain Ramchandran Private Ltd versus Brahmapootra Tea Co. (India) Ltd. And Another3 wherein this Hon'ble Court has held as follows:
"13. The only contention on behalf of the applicant was that the decree was a ity by reason of the court having no jurisdiction to pass the decree and by reason of the appointment of the Provisional Liquidator. I am unable to accept the contention. The court has full jurisdiction to entertain suits and to pass decrees where the company is a party to the suit and such company is in the course of liquidation. It is true that the provisions in the Companies Act and the rules thereunder contemplate that if the suit is pending on the date of die presentation of the winding up petition or on the date of the winding up order the suit or proceeding is not to be continued except by leave of the court. Leave to proceed with the suit in such circumstances is not similar to leave under cl. 12 of the Letters Patent. In the absence of leave under cl. 12 the court has no jurisdiction. The existence of jurisdiction depends upon leave under cl. 12. In suit or proceeding against the company in the course of liquidation the absence of leave to continue or proceed does not, in my 3 AIR 1962 CAL 192 9 opinion, deprive the court of the jurisdiction to pass any decree. The court has jurisdiction to hear such suits. The existence of jurisdiction does not depend upon any such leave. It is the court which hears the suit, also confers leave to proceed with the suit when leave is asked for. If leave has not been obtained, the decree does not become a ity for lack of jurisdiction. Leave is asked for to continue the suit. In the present case the plaintiff was not aware of any winding up order and therefore could not ask for any leave. In my opinion the absence of leave is not fatal as to render the decree a ity. In appropriate case leave can be given even retrospectively if circumstances of the case justify."
9.2. Bearing in mind the aforesaid proposition, it manifests that even if leave has not been obtained by the decree-holder-plaintiff under the provisions of Section 446 of Act of 1956, the decree does not become a nullity for lack of jurisdiction. In suit or proceeding against the company in the course of liquidation the absence of leave to continue or proceed does not deprive the court of the jurisdiction to pass any decree. The court has jurisdiction to hear such suits. The existence of jurisdiction does not depend upon any such leave. The absence of leave to continue or proceed with the suit is not fatal so as to render the decree a nullity. Therefore, the contention of the applicant-judgment debtor no.2 that the decree passed by this court on 30th July, 2007 is non-est and should be set aside primarily on the ground of non-compliance of Section 446 of the Act of 1956 is not tenable and is thus unacceptable. Issue No.2: Whether the contention raised by the applicant-judgement debtor no.2 in the present application is beyond the scope of Section 47 of the Code?
10. In order to decide the aforesaid issue, it would be profitable to reproduce relevant portion of the decree passed by this Court on 30th July, 2007 in Suit No. 258 of 1992 (Prem Kumar Chowdhury versus Jiyajeerao Cotton Mills Limited & Ors.) as hereunder:
"This cause coming on this day i.e. the Thirteenth day of July, Two thousand Seven for final disposal before the Hon'ble Prabuddha Sankar Banerjee, one of the Judges of this court in the presence of the Advocate for the plaintiff Prem Kumar Chowdhury (defendant no. 1 Jiyajeerao Cotton Mills Ltd. and 10 no. 2 Grasim Industries Limited not appearing either through its representatives or by advocates) and sufficient court fees having been paid and it appears that the defendant no 3 Citi Bank entered appearance but did not contest the suit and upon hearing the evidence given in this suit it is declared that the plaintiff Prem Kumar Chowdhury was and be and he is hereby entitled to the partly convertible debentures numbering 1225 (one thousand two hundred twenty five) in respect of the 'first' series and numbering 887 (eight hundred eighty seven) in respect of the 'second' series and the same is ordered and decreed accordingly and it is further declared that the plaintiff Prem Kumar Chowdhury was and be and he is hereby entitled to the shares numbers 1225 in respect of first and numbers 887 (eight hundred eighty seven) in respect of second series, now stands converted in the capital of the company and the same is ordered and decreed accordingly and upon and/or subject to payment by the plaintiff Prem Kumar Chowdhury to the defendant no.1 Jiyajeerao Cotton Mills Ltd. It is further ordered and decreed that the defendant no. l shall return the convertible debentures numbering 2112 (two thousand one hundred twelve) in aggregate and/or shares numbering 2112 (two thousand one hundred twelve) in the capital of defendant no. 2 Grasim Industries Limited. And it is further ordered and decreed that a perpetual injunction be and the same is hereby granted restraining the defendant no. 1 Jiyajeerao Cotton Mills Ltd. and/or its servants and agents to exercise voting rights in respect of Two thousand one hundred and twelve (2112) equity shares in aggregate arising out of two several series of partly convertible debentures and it is further ordered and decreed that the application forms, allotment notice and debentures and/or shares scripts allotted by defendant no.2 Grasim Industries Ltd. to defendant no.1 Jiyajeerao Cotton Mills Ltd. in respect of the aforesaid two series 'first' and 'second' of debentures and/or shares, now converted be and the same are hereby treated as cancelled and be delivered up and the defendant no. 2 Grasim Industries Ltd. is hereby directed to rectify the debenture and/or share register of defendant no. 2 Grasim Industries Ltd. arising out the said 'first' and 'second' series of partly convertible debentures and the same is ordered accordingly and the defendant no. 2 Grasim Industries Ltd is hereby directed to insert the names of the plaintiff Prem Kumar Chowdhury in place and stead of defendant no.1 Jiyajeerao Cotton Mills Ltd. in the shares and debenture register of the company subject to payment of Rupees one lakh fifty thousand forty eight only to defendant no.1 Jiyajeerao Cotton Mills Ltd. being the price paid by the defendant no.1 Jiyajeerao Cotton Mills Ltd. to the defendant no. 2 Grasim Industries Ltd. and the same is further ordered accordingly and it is further ordered and decreed that the defendant no. 1 Jiyajeerao Cotton Mills Ltd. and no.2 Grasim Industries Ltd. do pay to the plaintiff Prem Kumar Chowdhury the cost of this suit (to be taxed by the Taxing officer of this court) and it is further ordered that the defendant no. 1 Jiyajeerao Cotton Mills Ltd. and no. 2 Grasim Industries Ltd. do comply with this order within three months from the date hereof failing which the plaintiff Prem Kumar Chowdhury will be at liberty to proceed as per Law."
10.1. Upon cursory going through the aforesaid decree it manifests that it is recorded in the decree that the plaintiff Prem Kumar Chowdhury is entitled to 11 the partly convertible debentures numbering 1225 (one thousand two hundred twenty five) in respect of the 'first' series and numbering 887 (eight hundred eighty seven) in respect of the 'second' series and is also entitled to the shares numbers 1225 in respect of 'first' and numbers 887 (eight hundred eighty seven) in respect of 'second' series, now stands converted in the capital of the company and upon and/or subject to payment by the plaintiff Prem Kumar Chowdhury to the defendant no.1 Jiyajeerao Cotton Mills Ltd. 10.2. The applicant-judgment debtor no.2 contends that judgement debtor no.1- Jiyajeerao Cotton Mills Limited moved application under Section 439 of Act of 1956 for winding up before the Gwalior Bench of the Madhya Pradesh High Court and on the date of passing of order for winding up on 4th May, 1998 the judgment debtor no.1 held 100 shares having a face value of Rs.10/- each. and upon division of those shares, 500 numbers of shares have been transferred to IEPF and the judgment debtor no.2 in no way can allot shares contrary to the records available in electronic form. By the present application the applicant- judgment debtor no.2, in the alternative, has sought liberty to transfer only the shares lying with IEPF. The aforesaid fact that the judgment debtor no.1 was holding only 100 shares having a face value of Rs.10/- each on the date of passing of order for winding up was well within the knowledge of the applicant- judgement debtor no.2 when the decree was passed in the suit but admittedly it chose not to contest or refute the claim of the plaintiffs. 10.3. Now the question arises whether a party who omits to raise an issue, can raise such issue under Section 47 of the Code in an execution proceeding. For proficiency in discussion Section 47 of the Code is reproduced hereunder: 12
"47. Questions to be determined by the Court executing decree.-(1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.
(2) * * * (3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court.
Explanation I.-For the purposes of this section, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed are parties to the suit.
Explanation II.-(a) For the purposes of this section, a purchaser of property at a sale in execution of a decree shall be deemed to be a party to the suit in which the decree is passed; and
(b) all questions relating to the delivery of possession of such property to such purchaser or his representative shall be deemed to be questions relating to the execution, discharge or satisfaction of the decree within the meaning of this section."
When the section refers to all questions it only means all questions which were not raised in the suit and decided by the trial court. If a question was raised and decided by the trial court, it is not open to the parties to raise it again at the stage of execution. Similarly, if a question ought to have been raised by a party before the trial court at the stage of trial and if he omits to raise it, even then he cannot raise it under Section 47 of the Code before the executing court. In the present case at hand, it is never in dispute that the summons of the suit was not served upon the judgement debtor no.2. Thus, the judgement debtor no.2 got the opportunity to raise each and every relevant issue in the suit at the stage of trial. However, it chose not to contest or refute the claim of the plaintiff-decree holder, meaning thereby that it omitted to raise such issues, as is raised in the present application, which ought to have been raised by it in the suit. As the judgement debtor no.2 omitted to raise the issues raised in the present application, hence it cannot raise such issues in the execution proceeding under Section 47 of the Code. At this stage it would be profitable to 13 reproduce relevant paragraph of the decision of Hon'ble Madras High Court passed in A. V. Hanifa versus Salima Dhanu4 as hereunder, which laid down similar proposition.
"9. Learned counsel for the petitioner submits that u/ S. 47(1), Civil P. C. all questions arising between the parties to the suit in which a decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit. Learned counsel wants me to interpret this Section as meaning that any question which is raised by a party to the suit should be considered by the executing Court if it relates to execution, discharge or satisfaction of the decree. Such a wide interpretation is unsustainable. When the Section refers to all questions it only means all questions which were not raised in the suit and decided by the trial Court. If a question was raised before the trial Court at the stage of trial and decided by the trial Court it is not open to the parties to raise it again at the stage of execution. Similarly, if a question ought to have been raised by a party before the trial Court at the stage of trial and if he omits to raise it, even then he cannot raise it u/ S. 47 before the executing Court."
In view of the above, the applicant cannot raise issue by way of the present application which it omitted to raise in the suit before the trial court. 10.4. Moreover, the prayer seeking liberty to transfer only shares lying in IEPF is nothing but asking for making a new decree altogether which is not sustainable in law. The powers of executing court are now more or less settled. The executing court can interpret an ambiguous decree but it cannot make a new decree. (See V.Ramaswami Aiyengar and Others versus T.N.V Kailasa Thevar5). Further it is not in dispute that the decree has reached finality since no appeal has been preferred. In absence of any challenge to decree no objection can be raised in execution (See State of Punjab versus Mohinder Singh Randhawa6). From the above discussion it appears that the 4 AIR 1992 Mad 111 5 AIR 1951 SC 189 6 AIR 1992 SC 473 14 contention raised by the applicant-judgment debtor no.2 and the prayers made herein are beyond the scope of Section 47 of the Code.
Issue No.3: Whether the executing court can go behind such a decree?
11. It is already found from the discussion in the foregoing paragraphs that the decree passed by this Court cannot be held to be nullity. The lack of jurisdiction in the Court passing the decree must be patent on its face in order to enable the executing Court to take cognizance of such nullity based on want of jurisdiction, else the normal rule that an executing Court cannot go behind the decree must prevail. It is pertinent to note that the judgment debtor no.2 in its instant application contended that it chose not to contest or refute the claims made by the decree holder-plaintiff in the suit since there was no material prayers against judgment debtor no.2. Subsequent to the passing of the ex parte decree neither any application for setting aside the ex parte decree nor any appeal has been preferred in the Appellate Court. Thus, the decree passed by this Court has reached its finality. A decree suffering from illegality or irregularity of procedure cannot be termed inexecutable by the executing Court. The remedy of a person aggrieved by such decree to have it set aside in a duly constituted legal proceedings or by a superior Court failing which he must obey the command of the decree. A decree passed by a Court of competent jurisdiction cannot be denuded of its efficacy by any co-lateral attack or in incidental proceedings. [See Rafique Bibi (Dead) (supra)]. It is settled proposition of law that the executing Court cannot go behind the decree unless it is shown that such decree is passed by a Court having inherent lack of jurisdiction which would make it a nullity. Needless to mention that no case 15 has been made out by judgment debtor no.2 that this Hon'ble Court lacked inherent jurisdiction to pass such decree in the suit. This Court finds substance in the submissions of Mr. Chowdhury, learned advocate appearing for decree holder relying on Bhawarlal Bhandari (supra) and Rafique Bibi (Dead) (supra). Issue No.4: Whether the application is barred by limitation under Article 137 of the Limitation Act?
12. It is contended by the decree holder that the instant application is barred under Article 137 of the Limitation Act, 1963. In order to appreciate the aforesaid issue, it would be profitable to reproduce Article 137 of the Limitation Act, 1963 as hereunder:
"137. Any other application for which no Three When the right to period of limitation is provided years. apply accrues."
elsewhere in this Division.
Article 137 is a residual provision, and provides for a limitation period for any application for which no period of limitation is provided in any of the Articles in the Schedule to the Limitation Act. It provides for a period of limitation of 3 years from the date when the right to apply accrues. Admittedly, the applicant judgment debtor no.2 has contended that it chose not to contest or refute the claims made by the decree holder-plaintiff in the suit since there was no material prayers against judgment debtor no.2, meaning thereby that despite service of summons/notice, the applicant-judgment debtor no.2 chose not to appear and refute the claim of the plaintiff in the suit. Be that as it may, Section 47 of the Code provides that all questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit. 16 Therefore, the present application raising certain issues cannot be independent of the execution proceeding. The applicant could not have filed a separate suit in order to raise such issues. Until and unless an execution proceeding is filed there cannot occasion of filing application by a judgment debtor in order to raise certain issues. Thus, the right to make application would accrue from the date of filing of the execution case and not on a prior date. It is found from the materials on record that the execution case is filed on 12th August, 2022 and the present application is filed on 6th May, 2024, which is well within the period of limitation of three years as provided under Article 137 of the Limitation Act. In light of the above, it is found that the instant application is not barred by limitation.
13. In view of the above discussion, the application being GA-COM 2 of 2024 is dismissed.
14. The execution case being EC 278 of 2022 be listed before the Court having determination.
15. Urgent photostat certified copy of the order, if applied for, be given to the parties upon compliance of all necessary legal formalities.
(Bivas Pattanayak, J.)