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2004 DIGILAW 1276 (PNJ)

State Bank Of India v. Day Old Farm

2004-11-22

S.N.AGGARWAL

body2004
Judgment S.N.Aggarwal, J. 1. This revision petition has been filed by the petitioner against the order dated 29.5.1993 passed by the Court of Sub Judge 1st Class, Faridabad by which the execution application filed by the petitioner/decree-holder was dismissed as barred by limitation. 2. The admitted facts of the case are that a decree for an amount of Rs. 88467.86 paise with costs and future interest was passed in favour of the petitioner against the respondents on 31.10.1974 by the Court of Sub Judge 1st Class, Ballabgarh. For the execution of this decree, the petitioner-bank filed the first execution application in the Court which was dismissed by the Executing Court on 12.6.1986 for non prosecution. The petitioner-bank filed second execution application on 24.4.1987, which was dismissed on 16.3.1990 by the Executing Court for non-filing of process fee. The 3rd execution application was filed by the petitioner-bank on 20.4.1990, which was dismissed by the Executing Court vide order dated 29.5.1993 on the plea that the same was barred by limitation. It is against this order that the present revision has been filed. 3. The submission of the learned counsel for the petitioner-bank was that the first execution application was filed within a period of 12 years from the passing of the decree in favour of the petitioner-bank and, therefore, the third execution application filed on 20.4.1990 was in continuation of the first execution application. Therefore, this execution application was also within the period of limitation. 4. In support of his submission reliance was placed by the learned counsel on the judgments reported as B. Shiva Shankar Das and Ors. v. Mufti Syed Yusuf Hasan, A.I.R. 1934 Allahabad 481. K.P. Chidambara Mudaliar v. V.S. Rukmani Ammal, A.I.R. 1975 Madras 246 and Sohan Singh and Anr. v. Shamsher Singh and Ors., (1950)52 Punjab Law Reporter 345. 5. On the other hand the submission of learned counsel for the respondents was that the execution application filed by the petitioner on 20.4.1990 was filed 15 years after the passing of the decree in favour of the petitioner and under Article 136 of the Limitation Act, the period of limitation for filing of execution application is 12 years. Therefore, it was barred by limitation. It was not in continuation of the first execution application filed by the petitioner-bank. Learned counsel for the respondents also relied upon the judgments reported as Katragadda Ramaya and Anr. Therefore, it was barred by limitation. It was not in continuation of the first execution application filed by the petitioner-bank. Learned counsel for the respondents also relied upon the judgments reported as Katragadda Ramaya and Anr. v. Kolli Nageswararao and Ors., A.I.R. 1969 Andhra Pradesh 250; Bala Tripura Simdaramma v. Abdul Khader, A.I.R. 1933 Madras 418; and Mohammad Tagi Khan v. Raja Ram and Ors., A.I.R. 1936 Allahabad 820 and The State Bank of Travancore by Manager, C.N.B. Unit. Ernakulam, Kerala State v. M. Ramu Maheswariah, A.I.R. 1971 Mysore 113. 6. I have gone through the record of this case and have considered the submissions of learned counsel representing the parties. The first execution application was dismissed on 12.6.1986 for want of prosecution. The second execution application filed on 24.4.1987 was dismissed on 16.3.1990 for non filing of process fee. Since the first two execution applications were finally disposed of one after the other, then the 3rd execution application cannot be considered to be in continuation of the first execution application or of the second execution application. Moreover, both the earlier execution applications were dismissed by the Executing Court because of the negligence of the petitioner. 7. The judgments relied upon by learned counsel for the petitioner do not advance their case. It was held by the Hon ble Full Bench of Allahabad High Court in the case of B. Shiva Shankar Das (supra) as under :- "When an application, is made by a decree holder after the expiry of the period of 12 years from the date of the decree, the Court has to decide whether it is a fresh application or one in continuation of an application already made within time which has been lying dormant. The test is to see whether the character of the fresh application is different from that of the former application, as for instance where the relief claimed, in the second application is against properties or persons different from those mentioned in the former application, the second application will be deemed to be "fresh application" within the meaning of Section 48. Civil P.C. Where the provisions under the prior application come to an end, the second application cannot be taken to be in continuation of the prior application." 8. Civil P.C. Where the provisions under the prior application come to an end, the second application cannot be taken to be in continuation of the prior application." 8. The observations reproduced above clearly prove that this execution application amounts to a fresh application and cannot be considered to be in continuation of the earlier execution applications because the earlier execution applications were finally disposed of. 9. Similarly the case of K.P. Chidambara Mudallar (supra) relied upon by learned counsel for the petitioner is not applicable to the facts of the present case, which is clearly proved by the following observations: "On 4.6.1966 that is to say after E.P. 147 of 1963 had been kept pending for nearly three years the decree holders daughter, evidently to oblige a statistically- minded Court, made the following endorsement:- Without prejudice to filing another petition this application is not pressed now and it may be dismissed for statistical purposes as not pressed. The Court jumped at this endorsement and passed the following order. Dismissed as not pressed. The learned Subordinate Judge has rightly held that the endorsement was made by the decree-holders daughter, not because she had committed any default in carrying forward the execution petition, but because for reasons beyond her control, the letters of administration she had applied for had not yet been granted by the District Court." 10 In the present case, the First and Second execution applications were dismissed because of the default of the petitioner. 11. Similarly Sohan Singhs case (supra) does not help the petitioner because of the observations that the proceedings once ended and disposed of cannot be a revivor of subsequent proceedings. 12. The judgment relied upon by learned counsel for the respondents in the case of Kalragadda Ramayya and another (supra) on the other hand clearly held that where previous execution petition is dismissed in default for non-payment of batta (non-payment of process fee) subsequent application cannot be treated as revival of the previous one. It was also held in the case of The State Bank of Travancore (supra) that if the execution petition is dismissed for default of the decree holder and the order of dismissal has become final, it could not be revived by fresh application filed subsequently. It was also held in the case of The State Bank of Travancore (supra) that if the execution petition is dismissed for default of the decree holder and the order of dismissal has become final, it could not be revived by fresh application filed subsequently. Therefore, the law on the subject is very clear that once the execution application is dismissed and finally disposed of, the filing of the subsequent application cannot be considered to be the revival of the earlier execution application, nor the subsequent application can be considered to be in continuation of the earlier execution application. It will be deemed to be fresh execution application. 13. In the present case, first execution application was dismissed for want of prosecution. The second execution application was dismissed for want of filing of process fee and the third execution application filed by the decree holder-petitioner cannot be considered to be the revival of the earlier execution applications or in continuation of the earlier execution applications. It has to be considered to be a fresh execution application. This execution having been filed beyond the period of limitation was prohibited by law and has been rightly dismissed by the learned Executing Court. There is no merit in the present revision petition and the same is dismissed.