Rabindra Kumar Saha v. Firm Biswanath Bhander, Tripura
1969-12-04
R.S.BINDRA
body1969
DigiLaw.ai
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.