Ishwarayya Girimallayya Kambi v. Special Land Acquisition Officer
2022-04-18
SURAJ GOVINDARAJ
body2022
DigiLaw.ai
JUDGMENT 1. In these batch of matters, the petitioners are before this Court seeking for setting aside the order passed by the Additional Senior Civil Judge at Jamkhandi in various execution petitions all dtd. 17/3/2020 dismissing the execution petitions as being barred by time. 2. The petitioners in the various Civil Revision Petitions are the owners of certain extents of land which were acquired under a notification issued by the respondents for the purpose of implementing the Upper Krishna Project. 3. Initially award was passed on 10/10/1996 fixing the market value of the land at Rs.48,000.00 per acre. On a reference being made, the market value was fixed at Rs.3,39,700.00 per acre by the Reference Court. An appeal and cross appeal having been filed, the appeal by the State came to be dismissed and the cross-appeal filed by the land losers was partly allowed by enhancing the compensation to Rs.4,70,448.00 per acre vide order dtd. 18/1/2002. 4. The execution proceedings were filed on 14/3/2014. The Execution Court being of the opinion that the award came to be enforceable on 18/1/2002 and the period of limitation having expired on 19/1/2014, dismissed the execution proceedings which were filed on 14/3/2014 stating that there is a delay of one month and 26 days. It is aggrieved by the same that the petitioners are before this Court. 5. Sri.Mrutyunjaya Tata Bangai, learned counsel for the petitioners submits that the execution proceedings could only be filed after the enhancement was made by this Court in a miscellaneous first appeal and as such the decree become enforceable only thereafter and the petitioners are required to be given due credit for the time taken in the disposal of the miscellaneous first appeal. 6. In this regard, he relies upon decision of the Andhra Pradesh High Court in Posani Ramachandraiah vs. Daggupati Seshamma [ AIR 1978 AP 342 ], more particularly para 10 thereof, which is reproduced hereunder for easy reference: 10. When the Legislature enacted Art. 136 by omitting S. 48 C.P.C. and reproducing it Art. 136, we have to take it that they must have been aware of the interpretation of S.46 by the Courts and approved of it. Consequently, we hold that under Art. 136 of the present Limitation Act, the period of limitation can be reckoned from the date of the appellate decree, even though there was no stay in the appeal.
Consequently, we hold that under Art. 136 of the present Limitation Act, the period of limitation can be reckoned from the date of the appellate decree, even though there was no stay in the appeal. If there is an appeal, the decree that can be enforced is that of the appellate court, and the period of limitation has to be reckoned form the date of that decree. In this case, the L.P.A. was dismissed on 30/10/1969. From that date the decree became enforceable. Therefore, E.P.No. 39/1973 filed on 23- 4-1973 within time, for it was filed within 12 years under Art. 136 of the Limitation Act. Consequently, we affirm the decision of Punnayya, J., and dismiss L.P.A. No. 4/1977. 7. Reliance is also placed on the decision reported in K.Muniswamappa vs. P.Chennakrishnappa [AIR 1971 Mys 266], more particularly para Nos.5, 6 and 19 thereof, which are reproduced hereunder for easy reference: 5. The two points raised in the appeal before the Supreme Court were: (1) The previous execution petition having been dismissed, it was not pending at the time of the filing of Ext. Petn. 13/39 and therefore the later application was ft fresh application under Sec. 48, Civil Procedure Code. (2) Even if the previous application was "closed" for statistical purposes, and the decree-holders could apply for reviving those proceedings, Exn. Petn. 13/39 was a fresh execution because the properties proceeded against are different and the relief asked for was also different. 6. It was held that the passing of orders by the executing court using the expressions like "closed for statistical purposes", "struck off", "recorded" etc., cannot tantamount to an order of dismissal, for the intention of the court in making such an order is for statistical purposes, and that it was not intended to finally dispose of the application which was kept pending. It was also observed that it is not the pharseology used by the executing court that really matters, but it is really the substance of the order that is material, and it is for the court to ascertain, having regard to the circumstances under which the said order was" made, whether the Court intended to finally terminate the execution proceedings. If it did not intend to do so, it must be held that the execution proceedings were pending on the file of the court.
If it did not intend to do so, it must be held that the execution proceedings were pending on the file of the court. Since on the date of the order of the executing Court, namely, 28-12- 1948, the order was passed on account of the fact that the appellate court had stayed execution of the decree, it was held that Exn. Petn. No. 13/39 was still pending on the file of the executing court and that the present application is only an application to revive the same. It was contended on behalf of the judgment-debtors in that case that Exn. Petn. No. 58/53 is a fresh application. It was held that an application made after 12 years from the date of the decree would be a fresh application within the meaning of Sec. 48 of the Code of Civil Procedure, if the previous application was finally disposed of. It would also be a fresh application if it asked for a relief against parties or properties different from those proceeded against in the previous execution petition or asked for a relief substantially different from that asked for in the earlier petition. Applying that test, it was held that it was not a fresh application. 19. It was next urged on behalf of the appellant that in the present execution petition No. 1390/66 the prayer is for the relief of realisation of the decretal amount by sale of the immovable properties as well as the other reliefs prayed for in the first execution petition, namely Ext. No. 338/54. It is contended that in the subsequent Execution Petition No. 255 of 1956 the prayer was only for arrest of the judgment-debtor and that therefore, the decree-holder cannot ask for the reliefs which were omitted in the second execution petition. It is stated by Sri Pranesh Rao, the learned counsel for the decree-holder-respondent, that the second execution petition was filed during the period when the execution petition had been stayed i.e., between 2/9/1955 and 18/12/1956. The second execution petition is numbered as 255/56, but there is no material on record to show definitely that it was filed during that period.
It is stated by Sri Pranesh Rao, the learned counsel for the decree-holder-respondent, that the second execution petition was filed during the period when the execution petition had been stayed i.e., between 2/9/1955 and 18/12/1956. The second execution petition is numbered as 255/56, but there is no material on record to show definitely that it was filed during that period. It has been held by the Supreme Court in , Venkanna v. Bangararaju, that merely because in the subsequent execution petition, the decree-holder omitted to ask for relief against some of the properties, did not render the subsequent execution petition a fresh execution petition. The tests kid down in that case to decide whether the subsequent execution petition is a fresh one, are these: (1) the subsequent execution petition will be a fresh execution petition if the previous application was finally disposed of. (2) It would be a fresh application if it asked for a relief against parties or properties different from those proceeded against in the previous execution petition; (3) It would be a fresh application if ft asked for a relief substantially different from that asked for in the earlier petition. 8. On the basis of the decision of this Court in Muniswamappa's case (supra), he submits that once again an execution proceeding was filed and withdrawn on account of partial satisfaction. The decree holder is entitled to file any number of execution proceedings and the limitation period for the second execution proceedings is deemed to have commenced from the date on which the first execution proceedings was dismissed or withdrawn on account of the partial satisfaction. Thus, he submits that in the present case earlier execution proceedings having been dismissed, in the year 2010 the period of 12 years would expire on 2022. Execution proceedings having been filed on 14/3/2014 within the period of 12 years, the second execution proceedings is within time and therefore he submits that the Execution Court could not have dismissed the matter on the ground that the same is barred by limitation. 9. Per contra, Sri.Praveen K Uppar, learned HCGP would submit that the Execution Court has rightly dismissed the execution proceedings. Apart therefrom, the entire amounts have been paid and there are no amounts which are liable to be paid.
9. Per contra, Sri.Praveen K Uppar, learned HCGP would submit that the Execution Court has rightly dismissed the execution proceedings. Apart therefrom, the entire amounts have been paid and there are no amounts which are liable to be paid. The memo of calculation having been exchanged between the parties, he states that the amounts having been reconciled there is no amount liable to be paid by the respondent-State to the petitioners. 10. Heard learned counsel for the parties. Perused papers. 11. It is a matter of fact and record that the Reference Court had initially passed an award on 18/4/1998 and the same was taken in appeal by filing miscellaneous first appeal which came to be disposed of on 18/1/2002. Though it could be contended that it is from 18/4/1998 that the period of limitation commences, fact remains that there was an appeal and cross appeal which had been filed challenging the enhancement made by the Reference Court. Thus, until the said appeal was pending, wherein the Stay has been granted, the petitioners could not have enforced the award by filing execution proceedings. 12. Article 136 of the Limitation Act reads as under: "Article 136 The expression "enforceable" has been used to cover such decrees or orders also which become enforceable subsequently: Ratan Singh v. Vijay Singh AIR 2001 SC 279 . Since S.24 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 applies the provisions of the Limitation Act, 1963, to applications filed before the Tribunal, and since Art.136 of the Limitation Act provides a period of limitation of 12 years for filing an Execution Petition, hence, no such application can be filed since after that period of 12 years expired: Raghunath Rai Bareja v. Punjab National Bank (2007) 2 SCC 230. To an application for initiating a final decree proceedings in terms of S.54 of the Code of Civil Procedure, 1908, Arts. 136 and 137 of the Limitation Act, 193 will have no application: Bikoba Deora Gaikwad v. Hirabai Marutirao Ghorgare (2008) 8 SCC 198 . 13. Article 136 of the Limitation Act, 1963 (for short 'the Act') prescribes a period of twelve years for the execution of any decree (other than a decree granting a mandatory injunction) or order of any civil court. It provides that the period would commence when the decree or order becomes enforceable. 14.
13. Article 136 of the Limitation Act, 1963 (for short 'the Act') prescribes a period of twelve years for the execution of any decree (other than a decree granting a mandatory injunction) or order of any civil court. It provides that the period would commence when the decree or order becomes enforceable. 14. A perusal of the above Article would indicate that time from which the period begins to run for filing of execution of any decree would be when the decree or order become enforceable. In my considered opinion, in the present case, the decree passed by the Reference Court becomes enforceable only upon the award passed by this Court in miscellaneous first appeal i.e. on 18/1/2002. Hence, the period of 12 years would have to be reckoned from 19/1/2002 which expired on 19/1/2014. 15. The contention of Sri.Mrutyunjaya Tata Bangi that the execution proceedings had earlier been filed which resulted in partial satisfaction of the decree and therefore the petitioners withdrew the said execution proceedings and filed the present set of execution proceedings on 14/3/2014 which would give rise to a fresh limitation calculated from the year 2010, in my considered opinion is not sustainable. 16. The limitation period under Article 136 of the Limitation Act as afore observed commences from the date on which the decree becomes enforceable, not on the basis of any acknowledgement made by the judgment debtor or otherwise. 17. The general rules applicable for acknowledgment of debt would not be applicable insofar as an execution proceeding is concerned, inasmuch as the amount due is crystallized on any decree being passed and immediately on the said decree being passed becomes enforceable subject to appeal or otherwise in an Appellate Court. Even the stay granted in various miscellaneous first appeals, came to be vacated on 18/1/2002 with the dismissal of the appeal filed by the State and partly allowing the appeal filed by the land loser. 18. Whether the judgment debtor agrees to the decree or refuses the decree, acknowledges the amount payable or refutes the amount payable, the decree stands on its own and does not depend on the acceptance or refusal of the judgment debtor. 19. The decree having become enforceable on 18/1/2002 the period of limitation had commenced from that date and ended on 19/1/2014.
19. The decree having become enforceable on 18/1/2002 the period of limitation had commenced from that date and ended on 19/1/2014. In the present case there is no event which has occurred subsequently, which has stopped the limitation period from running. The period of limitation continued to run without any interference from 18/1/2002, inasmuch as there is no appeal filed against the award in miscellaneous first appeal to stay the execution of the award in the said miscellaneous first appeal. 20. In view of the above, I am unable to accept the submission of Sri.Mrutyunjaya Tata Bangi that the fresh limitation would commence after dismissal and on or part satisfaction of an earlier execution proceedings. The law of limitation acts in a draconian manner which requires a party to act and do things by approaching the Court in the prescribed time period. The petitioners not having approached the Execution Court within the prescribed time period, the law of limitation has put an end to the remedy of the petitioners, though the right may continue to exist. 21. In view thereof, I do not find any merits in the above petitions. The petitions stand dismissed.