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2014 DIGILAW 1078 (CAL)

Mahasin SK. v. Memjan Bewa

2014-11-18

SANJIB BANERJEE

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JUDGMENT : Sanjib Banerjee, J. The petitioning decree-holder has questioned the propriety of an order of July 9, 2014 passed on a petition under Section 115A of the Code arising out of an order dated June 15, 2011 passed in execution proceedings. 2. The short issue before the executing court and the revisional court was whether the execution proceedings launched on August 16, 2002 could be maintained in respect of a decree passed on July 18, 1990 after the expiry of a period of twelve years from the date of the decree. 3. It appears that the revisional court fell into error by relying on Article 136 of the Schedule to the Limitation Act, 1963 without appreciating the circumstances in which certain decrees may be executable even if execution proceedings are launched more than twelve years after the date of the passing of the decree. 4. The entry in the third column in the Schedule pertaining to Article 136 provides as follows: "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: Provided that an application for enforcement or execution of a decree granting a perpetual injunction shall not be subject to any period of limitation." 5. The decree of July 18, 1990 passed by the Berhampore court in favour of the petitioner herein, recorded as follows: "that the suit be decreed ex parte against the defdt. with cost. The plaintiff do get a decree of title and khas possession in connection with (ka) schedule land of the plain. It is hereby declared that the plff has 16 annas right, title and interest in connection with 'ka' schedule land of the plaint. The defdts. are directed to place in possession the plaintiff of the 'ka' schedule land within 3 (three) months from this day i.d. the plaintiff is at liberty to take possession of the 'ka' schedule land through the process of law." 6. The decree permitted the defendants to the suit to make over possession of the 'ka' schedule land to the plaintiff within three months of the date of the decree. The decree permitted the defendants to the suit to make over possession of the 'ka' schedule land to the plaintiff within three months of the date of the decree. Thus, it was possible for the judgment-debtors to resist the decree-holder's attempt at possession on any day prior to the expiry of the period of three months from the date of the decree. Conversely, it would have been perfectly legal and bona fide on the part of the judgment- debtors to retain possession of the relevant land for a period of two months and 29 days from the date of the decree and make over possession thereof on the final day as directed therein. 7. It is evident that the decree-holder's right to execute the decree arose upon the default on the part of the judgment-debtors to comply with the direction contained in the decree to make over possession of the decretal premises by a certain date. In such circumstances, Article 136 in the Schedule to the Limitation Act permitted the institution of the execution proceedings within a period of twelve years from the date when the decree-holder became entitled to seek execution. 8. For the purpose of the present adjudication, Article 136 may be reduced to its material contents relevant herein, whereupon it will read thus: "When ... the decree ... directs ... the delivery of any property to be made at a certain date ..., ... when default in making the ... delivery in respect of which execution is sought, takes place" 9. There can be no doubt that the decree of July 18, 1990 directed delivery of the decretal premises to be made by a period of three months from the date of the decree and, as such, the default on the judgment-debtors' part began upon the expiry of a period of three months following the date of the decree and the clock of limitation started ticking for the judgment-debtors only thereafter. Since the decree was passed on July 18, 1990 and the period of three months may be taken to have elapsed, at the earliest, on October 18, 1990, a period of twelve years had not expired between October 19, 1990 and August 16, 2002, when execution was levied in respect of the decree. Thus, the execution proceedings were instituted within the period of limitation. 10. Thus, the execution proceedings were instituted within the period of limitation. 10. The order impugned dated July 9, 2014 passed in Civil Revision No. 3 of 2011 by the Additional District Judge, 5th Court at Murshidabad is set aside and the order dated June 15, 2011 passed by the Civil Judge (Junior Division) 2nd court at Berhampore in Misc. Case No.5 of 2008 is restored and affirmed. 11. The executing court is requested to ensure that the execution proceedings are brought to a logical conclusion as expeditiously as the business of the executing court would permit and without granting any unnecessary indulgence to the judgment-debtors. 12. C.O. 3175 of 2014 is allowed as above without any order as to costs. 13. Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance of the requisite formalities.