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2011 DIGILAW 1824 (RAJ)

L. R’s of Hanuman v. Dhanraj

2011-08-26

VINEET KOTHARI

body2011
JUDGMENT 1. - Heard learned counsel. 2. This revision petition is directed against the order dated 6/7/2011, whereby, the judgment debtor's objection as to execution of decree by the learned appellate court under Order 21, Rule 11 CPC has been rejected. 3. Learned counsel for the petitioner - judgment debtor, Mr. R.K.Singhal relying upon the judgment of Supreme Court in the case of Madhavrao Narayanrao Patwardhan v. Ram Krishna Govind Bhanu & Ors. - AIR 1958 SC 767 urged that when the decree of mandatory injunction of the trial court dated 21/4/1997 was sought to be executed by the decree holder, even though the said decree dated 21/4/1997 was modified by the appellate court on 12/2/1998, the execution could not be undertaken by the learned trial court and objection filed by the judgment-debtor before the Executing Court on 17/12/2002 was upheld and execution application of the decree holder was rejected by the learned trial court on 27/2/2006, therefore, the execution application was filed before the learned appellate court, which had modified the decree on 12/2/1998, on 28/7/2006, after about five months by that time but more than three years have passed since the decree was modified by the learned appellate court on 12/2/1998, such execution application was barred by limitation of three years and decree could not executed by the appellate court. He submitted that learned court below has wrongly invoked the provisions of Section 14 of the Limitation Act & even without application filed by the decree holder, has condoned the delay and rejected the objection of judgment-debtor by the impugned order dated 6.7.2011. 4. Having heard the learned counsel, this Court is of the view that there is no error in the impugned order and, therefore, present revision petition is liable to be dismissed. The bare perusal of Section 14 of the Limitation Act, 1963 in Part III of the Act which deals with computation of period of limitation provides for exclusion of time of proceeding bonafide in court without jurisdiction. The bare perusal of Section 14 of the Limitation Act, 1963 in Part III of the Act which deals with computation of period of limitation provides for exclusion of time of proceeding bonafide in court without jurisdiction. The said provision is reproduced below for ready reference:- "14.Exclusion of time of proceeding bona fide in court without jurisdiction.- (1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. (2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. (3) Notwithstanding anything contained in Rule 2 Order 23 of the Code of Civil Procedure,1908 (5 of 1908), the provisions of sub-section (1) shall apply in relation to a fresh suit instituted on permission granted by the court under rule 1 of that Order, where such permission is granted on the ground that the first suit must fail by reason of a defect in the jurisdiction of the court or other cause of a like nature. Explanation: For the purposes of this section- (a) in excluding the time during which a former civil proceeding was pending, the day on which that proceeding was instituted and the day on which it ended shall both be counted; (b) a plaintiff or an applicant resisting an appeal shall be deemed to be prosecuting a proceeding; (c) misjoinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction." 5. A perusal of said provision makes it clear that even no application for seeking such condonation of delay is necessary. A perusal of said provision makes it clear that even no application for seeking such condonation of delay is necessary. The court concerned can take into account the fact that the decree holder has been pursuing his remedy in a wrong court of law, which for want of jurisdiction or for defective jurisdiction rejected such execution application. In the present case, admittedly, the decree was passed by the learned trial court on 21/4/1997 for which execution application was filed in the year 1998. However, the said decree was modified by the learned appellate court on 12/2/1998 and obviously, the decree of trial court merged with that of the appellate court. Since the objection of judgment debtor that the trial court could not execute the said decree was upheld on 27/2/2006, it cannot be said that plaintiff decree holder was wrongly pursuing his remedy before the learned trial court upto 27/2/2006. Soon after the rejection of execution application by the learned trial court on 27/2/2006, within five months, the said decree holder approached the appellate court on 28/7/2006 for execution of modified decree. 6. In these circumstances, the execution application cannot be said to be time barred. The delay, if any, computed from the date of modified decree dated 12/2/2008 deserved to be condoned in view of clear provision of Section 14 of the Limitation Act. 7. The judgment relied upon by the learned counsel for the petitioner in Madhavrao Narayanrao Patwardhan's case (supra) is not applicable to the facts of present case. In that case, the Hon'ble Supreme Court held in para 7 that both the courts below have viewed the controversy under Section 14 of the Limitation Act, as if it was for the defendant to show malafides on the part of the plaintiff when he instituted the previous suit and was carrying on the proceedings in that court. In our opinion, both the courts below have misdirected themselves on this question. In our opinion, both the courts below have misdirected themselves on this question. Though they do not say so in terms, they appear to have applied the definition of "good faith" as contained in General Clauses Act, to the effect that "A thing shall be deemed to be done in good faith where it is in fact done honestly, whether it is done negligently or not." But the Indian Limitation Act contains its own definition of good faith to the effect that "nothing shall be deemed to be done in good faith which is not done with due care and attention" 8. In the present case, it cannot be said that the decree holder was pursuing the remedy before the trial court malafidely. His pursuing the execution proceedings before the trial court despite the fact that said decree was modified by the appellate court on 12/2/1998 could not be said to be misconceived. 9. Be that as it may, once the objection of the judgment debtor was upheld by the trial court on 27/2/2006, immediately thereafter, the decree holder has approached the appellate court for execution of the decree on 28/7/2006 & such application cannot be said to be barred by limitation and delay, if any, clearly deserves to be condoned in view of Section 14 of the Limitation Act. 10. Accordingly, there is no error in the impugned order dated 6/7/2011 passed by the learned Executing Court and the present revision petition being devoid of merit is liable to be dismissed and is hereby dismissed. Copy of this order be sent to opposite side and concerned court forthwith.Revision Petition Dismissed. *******