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2004 DIGILAW 355 (MAD)

C. Sabapathy v. Indian Bank

2004-03-05

S.SARDAR ZACKRIA HUSSAIN

body2004
Judgment :- The revision petitioner is the 3rd judgment debtor/3rd defendant. The respondent/the decree holder Indian Bank filed E.P.No.80 of 1995 on 12.04.1995, to realise the amount as per decree dated 23.06.1984, against defendants 2, 5 and 7. Since the Bank was unable to realise the amount, it has filed E.A.No.458 of 1998 seeking to amend the Execution Petition by impleading the 3rd defendant/3rd judgment debtor viz., the revision petitioner herein as respondent in the said Execution Petition. The Executing Court, came to the conclusion that the decree holder filed the E.A. to implead the 3rd judgment debtor as respondent in time, and so allowed the said application on 21.11.2000. Aggrieved over the said order, the petitioner herein, who is the 3rd judgment debtor/3rd defendant has filed this revision petition. 2. The learned counsel for the revision petitioner/3rd judgment debtor has contended that inasmuch as the suit is of the year 1983, which was decreed on 23.06.1984, Execution Petition was filed against judgment debtors 2, 5 and 7 on 12.04.1995 and thereafter E.A.No.458 of 1998 was filed to implead the 3rd judgment debtor as the respondent in the Execution Petition on 21.09.1998 beyond the period of limitation and so, the order of the Executing Court allowing the amendment petition is not proper. 3. The learned counsel for the Respondent/decree holder argued that inasmuch as E.P.No.80 of 1995 was filed against the judgment debtors 2, 5 and 7 to realise the amount decreed in the suit and during the pendency of the said petition, in view of the fact that the bank is unable to realise the amount, application E.A.No.458 of 1998 to implead the 3rd judgment debtor as respondent in the Execution Petition was filed and therefore, the amendment petition allowed by the Executing Court does not call for any interference by this Court. 4. It is not in dispute that the suit filed by the respondent Bank against defendants 1 to 7 was decreed on 23.06.1984 granting four months time. As such, the decree is executable only from 23.06.1984. The respondent Bank filed the E.P.80 of 1995 to realise the amount decreed, only against defendants 2, 5 and 7, on 12.04.1995 within the period of limitation. It is also noted in this regard that the said E.P. was also pending. As such, the decree is executable only from 23.06.1984. The respondent Bank filed the E.P.80 of 1995 to realise the amount decreed, only against defendants 2, 5 and 7, on 12.04.1995 within the period of limitation. It is also noted in this regard that the said E.P. was also pending. Since the Bank was unable to realise the amount decreed from the said judgment debtors viz., from defendants 2, 5 and 7, who alone were made respondents in the Execution Petition, the Bank had filed E.A.No.458 of 1998, to implead the 3rd judgment debtor viz., the revision petitioner herein as respondent in the Execution Petition on 21.09.98, on which date, the decree against the 3rd judgment debtor is not executable since it exceeded the period of 12 years. Merely because E.P.No.80 of 1995 filed against defendants 2, 5 and 7 was pending and the Bank was unable to realise the amount decreed in the suit, it is not open to the Bank to execute the decree against the 3rd judgment debtor by filing E.A.No.458 of 1998 seeking to implead him as respondent in the Execution Petition after the period of limitation. Since the decree against the 3rd judgment debtor viz., the revision petitioner is not executable after 23.10.1996 and inasmuch as E.A. was filed only during the year 1998, it is clearly barred by limitation. Therefore, the order of the Executing Court in allowing E.A.458 of 1998 filed to implead the 3rd judgment debtor viz., the civil revision petitioner herein as respondent in the Execution Petition is not correct. Therefore the order of the Executing Court dated 21.11.2000 is to be set aside. The Civil Revision Petition is allowed. No costs.