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Gauhati High Court · body

1969 DIGILAW 79 (GAU)

Rabindra Kumar Saha v. Firm Biswanath Bhander, Tripura

1969-12-04

R.S.BINDRA

body1969
This revision petition under Section 115 of the Civil Procedure Code by the judgment-debtor Rabindra Kumar is directed against the order, dated 6-2-1968 by which Shri P. K. Roy, Sadar Munsiff, Tripura, held the execution application filed by the decree-holder Biswanath Bhander, on 5-9-1967, as well within time. 2. The decree sought to be executed was passed on 23-4-1962. An execution application made to the Court was pending when the Limitation Act of 1963 hereinafter called the Act, came into force on 1-1-1964. That execution application was disposed of by an order dated 5-6-1964. Thereafter, when the new execution application was made on 5-9-1967 the judgment-debtor raised an ob­jection, founded on clause (b) of Section 31 of the Act, that it was barred by time. The executing Court found no merit in the ob­jection and so rejected the same on hold­ing that the execution application having been made within 12 years from the date of the decree it was not barred by time. The Court was of the view that execution appli­cation fell under Article 136 of the Act. The correctness of that view of the executing Court is challenged in the instant revision petition. 3. After hearing Shri J. N. Paul for the petitioner, I have found no merit in the sub­mission that the execution application filed on 5-9-1967 was barred by time. Section 31 of the Act, bearing the marginal heading "Provisions as to barred or pending suits, etc. reads as under:- Nothing in this Act shall - (a) enable any suit, appeal or application to be instituted, preferred or made, for which the period of limitation prescribed by the Indian Limitation Act, 1908, expired before the commencement of this Act; or (b) affect any suit, appeal or application instituted, preferred or made before, and pending at, such commencement. 3. 3. Shri J. N. Paul's contention is that since the previous execution application was pending on 1-1-1964 when the Act came into force, in terms of clause (b) of Section 31 the provisions of Article 136 of the Act do not apply to the decree sought to be execut­ed, that the execution of that decree is still governed by Section 48 of the Civil Proce­dure Code, and Article 182 of Limitation Act, 1908, and that since the execution application dated 5-9-1967 was filed more than 3 years after the dismissal of the previous execution application it is barred by limitation and so has to be rejected. Clause (b) of Section 31 of the Act at the best could be availed of to support the contention that nothing men­tioned in the Act could affect the execution application which was pending on 1-1-1964 and was disposed of on 5-6-1964. That clause cannot be utilised to sustain the asser­tion that either Section 48 of the Civil Procedure Code at present governs the period of Imitation for execution of decrees, or that Article 136 of the Act does not apply to the decrees which had been passed before the Act came into force. The execution applica­tion which is said to be barred by time was not pending on the date of the commence­ment of the Act and so on the plain reading of clause (b) of Section 31 its provisions have no applicability to that application. 4. Section 28 of the Act has specifically repealed Section 48 of the Civil Procedure Code. Therefore, with effect from 1-1-1964 that section ceased to have any relevancy vis-a-vis the execution applications filed after that date in respect of the decrees passed before that date. Article 136 of the Act prescribes a period of 12 years for the exe­cution of any decree (other than a decree granting a mandatory injunction) or order of any Civil Court, that period commencing from the date the decree or order becomes enforceable. The decree under execution was passed on 23-4-1962 and the execution appli­cation dated 5-9-1967 having been filed with­in 12 years of that date, obviously it was not barred by time either because of Clause (b) of Section 31 of the Act, that being inappli­cable in terms, or by the extinct Section 48 of the Civil Procedure Code or by the re­pealed Article 182 of the Limitation Act 1908. There is no provision in the Act of 1963 corresponding to Art. 182 of the Limitation Act of 1908 prescribing period of 3 years for the first or each successive execution ap­plication. Under Article 136 of the Act of 1963 it is open to the decree-holder to claim execution at any time within 12 years from the date tie decree became enforceable in ^complete oblivion of when the last execu­tion application was disposed of. 5. Shri J. N. Paul did not rely upon any other statutory provision in support of the point canvassed by him. Therefore, agree­ing with the view taken by the executing Court and on holding the execution applica­tion as not barred by time, I reject the revi­sion petition with costs. Advocate's fee Rs. 25/-. Revision dismissed.