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2001 DIGILAW 134 (CAL)

Niva Das v. Jogananda Das

2001-03-08

Bhaskar Bhattacharya

body2001
JUDGMENT Bhaskar Bhattacharya, J. : This revisional application is at the instance of judgment debtors in a proceeding for execution of a final decree for partition and is directed against Order No. 124 dated August 31, 2000 passed by the learned Civil Judge, Senior Division, Burdwan in Miscellaneous Case No. 80 of 1991 arising out of Title Execution Case No. 10 of 1981 thereby rejecting an application under section 47 of the Code of Civil Procedure. 2. A suit for partition filed by the opposite party No.1 was decreed in preliminary form thereby declaring his 8 annas share in the suit properties. In the final decree proceeding, the Commissioner for partition suggested that the defendants would pay a sum of Rs. 6,000/- to the opposite party No.1 as owelty money within six months from the date of acceptance of the report failing which the portion allotted to the defendants in Plot No. 7527 should form part of the allotment of the opposite party No.1 on his payment of the said amount. The said report was accepted by the court and the same formed part of the final decree dated August 21, 1981. 3. The opposite party No.1 put the aforesaid final decree into execution thereby giving rise to the Title Execution Case No. 10 of 1981. 4. The petitioners did not deposit the said amount of Rs. 6,000/- nor did they file any application for extension of the time within February 21, 1982 i.e. the stipulated time of six months. 5. Thereafter on May 26, 1983, the petitioner No.1 alone filed an application before the Executing Court thereby praying for extension of the time for deposit of the amount of Rs. 6,000/- as, in the mean time, the opposite party No.1 on April 21, 1982 prayed before the Executing Court for allotment of Plot No.7527 in his favour for non payment of the owelty money by the defendants. 6. Subsequently, on June 7, 1983 the petitioner No.1 filed another application thereby praying for permission to deposit Rs. 6,000/- after allowing her earlier application dated May 26, 1983. The court merely permitted the petitioner to deposit Rs. 6,000/- at her own risk and such amount was deposited on June 9, 1983. 6. Subsequently, on June 7, 1983 the petitioner No.1 filed another application thereby praying for permission to deposit Rs. 6,000/- after allowing her earlier application dated May 26, 1983. The court merely permitted the petitioner to deposit Rs. 6,000/- at her own risk and such amount was deposited on June 9, 1983. However, subsequently the application filed by the petitioner No.1 for extension of time and rejection of the prayer of the opposite party No.1 for allotment of Plot No. 7527 was rejected on some technical grounds. 7. Long thereafter, the petitioners came up with an application under section 47 of the Code of Civil Procedure thereby praying for (1) extension of time for deposit of owelty money mentioned in the final decree for partition (2) acceptance of the delayed deposit of Rs. 6,000/- and (3) rejection of the prayer of the opposite party No.1 for allotment of Plot No. 7527. Such application gave rise to Miscellaneous Case No. 80 of 1991. 8. The only reason assigned by the petitioners in the said application under section 47 of the Code for not complying with the direction of payment of owelty money was that "under some unspeakable difficulties and under financial hardship and being in distress on account of the death of the husband of the petitioner No.1 and father of petitioner Nos. 2 to 6 and son of petitioner No. 7" the petitioners could not deposit the amount within the time mentioned in the decree. 9. The learned Executing Court by Order No. 80 dated August 22, 1992 rejected the said application on the sole ground that the learned Executing Court could not go beyond the decree and extend the time fixed by the decree. 10. Being dissatisfied, the petitioners, in the past, moved a civil revisional application before this court being C.O. No. 3168 of 1992 which was disposed of on April 19, 1999 by setting aside the said order and directing the learned Executing Court to decide the said application in accordance with law. In passing such direction, this court relied upon a Division Bench decision of this court in the case of Biswanath Kundu vs. Sm. Subala Dasi, reported in AIR 1962 Cal. In passing such direction, this court relied upon a Division Bench decision of this court in the case of Biswanath Kundu vs. Sm. Subala Dasi, reported in AIR 1962 Cal. 272 and concluded that the question of extension of time for deposit of money fixed by a decree came within the meaning of "execution, discharge or satisfaction of decree" authorising an Executing Court to pass appropriate order. However, this court pointed out that the decree holder would be entitled to take all available defences including the plea that the application was barred by the principles of res judicata at the time of hearing and that this court did not enter into the merit of the said miscellaneous case. 11. Pursuant to such direction given by this court the learned Executing Court has by the order impugned herein, dismissed the application under section 47 of the Code not only the ground that the petitioners failed to prove sufficient cause for not depositing the owelty money within the time fixed by the decree but also on the ground that the said application was barred by limitation. 12. Being dissatisfied, the petitioners have come up with the revisional application. 13. Mr. Chakraborty, the learned advocate appearing on behalf of the petitioners has made three fold submissions before this court. 14. First, Mr. Chakraborty contends that the learned Executing Court acted illegally and with material irregularity in holding that the application under section 47 of the Code was barred by limitation. According to him, such application is not required to be filed within 3 years from the initiation of the execution case. Even, Mr. Chakraborty proceeds, such application can be filed after an applicant has been dispossessed in execution of a decree after the disposal of the execution case. Thus, before disposal of the execution case, such application having been filed, the same is quite within the period of limitation. In other words, Mr. Chakraborty contends that right to apply under section 47 really accrues when the applicant is dispossessed in execution of the decree and the limitation does not run from the mere knowledge of pendency of the execution case. 15. Secondly, Mr. In other words, Mr. Chakraborty contends that right to apply under section 47 really accrues when the applicant is dispossessed in execution of the decree and the limitation does not run from the mere knowledge of pendency of the execution case. 15. Secondly, Mr. Chakraborty submits that the petitioners having already deposit the amount in the year 1983, the court should simply accept such delayed payment by applying the principles mentioned in section 148 of the Code and that Article 137 of the Limitation Act has no application. Mr. Chakraborty even goes to extremes by contending that in this type of a situation Limitation Act has no application. 16. Lastly, according to Mr. Chakraborty the learned Executing Court acted illegally and with material irregularity in not considering the case of poverty pleaded by the petitioners in holding that there was no sufficient reason for condoning the delay. At any rate, Mr. Chakraborty contends that in considering "sufficient cause" the approach of the court should be more liberal than the one with which a court proceeds to dispose of an application under section 5 of the Limitation Act. 17. I propose to deal with the first two contentions of Mr. Chakraborty together as those are inter linked. 18. As pointed out by the Division Bench of this court in the case of Biswanath Kundu vs. Sub ala Dasi (supra), the consistent view of this court is that the question of extension of deposit of money fixed by a decree comes within the expressions "execution, discharge or satisfaction of decree" within the meaning of section 47 of the Code and thus, the learned Executing Court is competent to decide such question. While deciding such question if the Executing Court condones the delay and grants extension, such court will do so by exercising power conferred upon it by section 148 of the Code. (See Jogdhyan vs. Babu Ram & Ors., AIR 1983 SC page 57). Therefore, the provision contained in section 148 of the Code does not give any extra power to the learned Executing Court. For the purpose of approaching an Executing Court for exercise of power of extension at the instance of a defaulting party under section 47 read with section 148 of the Code, the law prescribes a period of limitation viz. Article 137 of the Limitation Act. 19. For the purpose of approaching an Executing Court for exercise of power of extension at the instance of a defaulting party under section 47 read with section 148 of the Code, the law prescribes a period of limitation viz. Article 137 of the Limitation Act. 19. According to Article 137, the period of limitation is 3 years and the time from which the period begins to run is the date when right to apply for extension accrues. Therefore, the extreme contention of Mr. Chakraborty that there is no period of limitation for filing such application is absurd and deserves outright rejection. 20. Now the question is when does a right to apply under section 47 of the Code accrue. 21. In my opinion, the answer depends on the facts of each case; but the date of filing of an execution case is not always relevant. In some cases, it may accrue even before filing of an execution case; in some other, it may on execution of a decree and an application under section 47 of the Code can be filed at a time when the execution case has been disposed of on full satisfaction. 22. For instance, if a judgment debtor before filing of an execution case makes any payment of money payable by a decree to a decree holder or any decree is otherwise adjusted in whole or in part to the satisfaction of the decree holder in accordance with the provisions contained in Order 21 Rules 1 or 2 of the Code but subsequently such payment or adjustment is specifically denied by the decree holder, the judgment debtor can move the Executing Court for determining such disputed question even before filing of an execution case by the decree holder and the right of the judgment debtor to approach the executing court accrues from the date of denial of payment or adjustment by the decree holder. (See M.P. Shreevastava vs. Mrs. Veena, AIR 1967 SC page 1193). 23. Similarly, if in a given case, the decree holder takes possession of a property from the judgment debtor which is not covered by the decree in execution thereof, the judgment debtor has a right to apply before the Executing Court for redelivery of possession in his favour by virtue of the power conferred under section 47 of the Code and right to file such application accrues only on being so dispossessed. In such a situation, the judgment debtor can file application before the Executing Court within 3 years from the date of dispossession notwithstanding the fact that the execution case has since been disposed of. 24. In the instant case, the petitioners being parties to the decree are bound by the terms thereof and were liable to pay the owelty money within February 21, 1982. Thus on the very next day viz. February 22, 1982, a right accrued in favour of the opposite party No.1 to pray for allotment of the property situated on Plot No. 7527 and the right to pray for extension of time for payment also accrued in favour of the present petitioners from that day. Even if no execution case was pending on that day, the petitioners could approach the execution department of the court for condonation of delay. Therefore, the present application under section 47 of the Code praying for extension filed in 1991 was patently barred by limitation. 25. Thus, although I do not approve the reason assigned by the Executing Court that the right to apply accrued from the date of filing of the execution case, the ultimate conclusion that the application is barred by limitation being a correct one, I do not find any reason to entertain this application. 26. I am also not at all impressed by the submission of Mr. Chakraborty that the money having been deposited on June 9, 1983 the same should be treated to have been deposited in accordance with the provision contained in Order 21 Rule 1 of the Code. As mentioned earlier, the amount was deposited at the risk of the petitioner No.1 and subsequently her prayer for extension of time was rejected on technical ground but she did not challenge such order. Thus, such deposit cannot in any way be described as in terms of Order 21 Rule 1 of the Code. 27. Even on merit, the learned Executing Court has disbelieved the case of distress made out in the application on appreciation of oral evidence. The learned Executing Court has pointed out that the husband of the petitioner No.1 died on February 28, 1983 long after the expiry of the last date of payment. Moreover, it further appears from the evidence on record that at the time of death of the husband of the petitioner No.1 all his children except a daughter were major. The learned Executing Court has pointed out that the husband of the petitioner No.1 died on February 28, 1983 long after the expiry of the last date of payment. Moreover, it further appears from the evidence on record that at the time of death of the husband of the petitioner No.1 all his children except a daughter were major. The petitioners have not specifically denied that one of the sons of the petitioner No.1 was in service at least four or five years prior to his father's death. Moreover, there is no material to show that the husband of the petitioner No.1 was in penurious condition before his death. On the basis of such materials, the learned Executing Court rightly assessed the evidence and declined to accept the case of poverty. Such finding being essentially one of fact based on correct appreciation of evidence, there is no scope of interference with such finding in this revisional application. 28. Thus, all the points raised by Mr. Chakraborty having failed, I find no substance in this application and the same is dismissed. No costs. Application dismissed.