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2013 DIGILAW 547 (GAU)

Kanti Bhusan Deb v. Sudhangshu Nath and Anr.

2013-08-08

T.VAIPHEI

body2013
Both Mr. N. Dhar, learned counsel appearing for the petitioner and Mr. M. Nath, learned counsel appearing for the respondents have been heard extensively. This application under article 227 of the Constitution of India ought to have been registered as Civil Revision Petition (article 227) and not as a writ petition. Necessary correction may be done by the Registry even at this belated stage. This application is directed against the order dated 30.9.2005 passed by the learned Civil Judge (Junior Division) No.l, Karimganj in Misc. Case No.180 of 2004 allowing the application filed by the respondents for amendment of their execution application. On carefully perusing the contents of the impugned order, I am of the view that the same does not suffer from any grave jurisdictional error calling for interference of this court. 2. Nevertheless, the learned counsel for the petitioner has strenuously urged this court to the effect that when the application for execution of the decree in question is, prima facie, time-barred, the learned Civil Judge ought not to have been taken up the application for amendment of the execution application without first deciding the issue on limitation. According to the learned counsel, the decree sought to be executed in the .execution application was passed by the learned Civil Judge on 27.7.1992 whereas the application for execution of the decree was filed only on 19.10.2004 i.e. over twelve years after the said decree, and since under article 136 of the Limitation Act, 1962, the period of limitation prescribed for execution of decree is 12 years, the application is helplessly time barred. The learned counsel submits that it was the duty of the learned Civil Judge to dismiss the application for execution filed by the respondents as and when same was presented on the ground of limitation, and as such the impugned order suffers from grave jurisdictional error, which cannot be sustained in law. In the instant case, the respondents filed Title Suit No. 288 of 1999 before the learned Munsiff No. l, Karimganj against the petitioner and others for declaration of title over the suit land and for correction of the land record thereof. The learned Munsiff decreed the suit on 27.7.1992 whereafter the respondents without filing any application for execution of the decree before the competent court of jurisdiction straightaway approached the Settlement Officer, Karimganj for correction of the land record in respect of the suit land. The learned Munsiff decreed the suit on 27.7.1992 whereafter the respondents without filing any application for execution of the decree before the competent court of jurisdiction straightaway approached the Settlement Officer, Karimganj for correction of the land record in respect of the suit land. The Settlement Officer, Karimganj by the order dated 15.12.1994 in Misc. Case No. 44 of 1993-94 allowed the application and corrected land record in respect of the land. The petitioner preferred an appeal against the order of the Settlement Officer before the Assam Board of Revenue which by the order dated 30.10.2000 in Case No. 18 RA(KJ) of 1995 set aside the order of the Settlement Officer and remanded the matter to the Court below for fresh disposal. The respondents thereafter filed Misc. Case No. 180 of 2004 before the learned Civil Judge (Junior Division) No.l, Karimganj for execution of the decree dated 27.7.1992. As already noted, on 3.8.2005, they filed an application before the learned Civil Judge for amendment of their application for execution of the decree, which was opposed by the petitioner by filing his written objection before the learned Civil Judge (Junior Division) No.l, Karimganj, who, by the impugned order, allowed his application for amendment. 3. At this stage, it may be observed that the petitioner did not raise any issue about limitation against the application for execution filed by the respondents before the learned Civil Judge. Aggrieved by the order dated 30.9.2005, this application under article 227 of the Constitution is filed by the petitioner. It may be reiterated that the execution application was filed by the respondents after the lapse of 12 years of passing the decree by the trial court. This ought to have been noticed immediately by the learned Civil Judge while entertaining the application for execution of the decree. Under article 136 of the Limitation Act, 1963, it is provided that for execution of any decree (other than a decree granting a mandatory injunction) or order of any civil court, the period of limitation is 12 years. Furthermore, time begins to run when the decree or order becomes enforceable or where the decree or any subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods, when default in making the payment or delivery in respect of which execution is sought, takes place. Furthermore, time begins to run when the decree or order becomes enforceable or where the decree or any subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods, when default in making the payment or delivery in respect of which execution is sought, takes place. Section 3 limits the time after which the suit or other proceedings would be barred. Thus, it makes the question of limitation a material one for determination in every case irrespective of whether the question is raised by the parties or not. In every suit or petition filed by the party, the court shall correctly ascertain the date on which the cause of action to file the suit has arisen to decide if the suit is within time or barred by limitation. In other words, under section 3 of the Limitation Act, it is the duty of the court not to proceed with the suit, appeal or application, if it is made beyond the period of limitation prescribed irrespective of the fact whether the plea of limitation has been set up in defence or not. The court has no choice in the matter. When a suit is clearly time barred it cannot be decreed in the teeth of section 3 of the Act. If any of the provisions contained in sections 4 to 24 (inclusive) are inapplicable, the mandatory provision of section 3 is attracted and the result is that the court is bound to dismiss the suit, appeal or application which on the face of it is barred by time. So it is clear that court is required to consider the question of limitation even if no objection is taken by the opposite party. The learned Civil Judge in entertaining the application for execution ought to have noticed the ambit and scope of section 3 of the application and ought to have decided the question as to whether the application for execution is time barred or not. Having failed to decide this issue at the very threshold, there is improper exercise of jurisdiction by the learned Civil Judge. 4. As I have decided not to interfere with the impugned order, this Civil Revision is hereby dismissed. Notwithstanding the dismissal, it is, however, directed that the learned Civil Judge (Junior Division), Karimganj now takes up. Having failed to decide this issue at the very threshold, there is improper exercise of jurisdiction by the learned Civil Judge. 4. As I have decided not to interfere with the impugned order, this Civil Revision is hereby dismissed. Notwithstanding the dismissal, it is, however, directed that the learned Civil Judge (Junior Division), Karimganj now takes up. the issue as to whether the execution application filed by the respondents is barred by article 136 of the Limitation Act 1963 or not and decide the same without any further delay. It is made clear that my observations in the foregoing are purely tentative in nature and shall not bind the learned Civil Judge, who shall take independent decision as to whether the execution application filed by the respondents is barred by article 136 of the Limitation Act, 1963. Both the parties shall appear before the learned Civil Judge, Karimganj on 4.9.2013 for further proceedings. ___________________