J RAMA Vs. VIJAYA BANK HEAD OFFICE MANGALORE

JUDGEMENT

(1.) this civil revision petition raises an interesting point with regard to the manner in which the Provisions of article 136 of the Limitation Act are required to be interpreted insofar as the twelve year period in relation to the time limit for execution of decrees is concerned. A few relevant facts are that the respondent-bank had filed a suit in original suit No. 146 of 1974 in which a decree came to be passed on 10-6-1975. An application for execution of the decree being No. 249 of 1984 was filed before the lower court roughly 9 years after the passing of the decree. Undoubtedly, since article 136 prescribes a limitation of 12 years, the court entertained the application. It is presumed that the bank made certain efforts to execute the decree and that it was unsuccessful as a result of which, after the lapse of another 8 years an amendment application dated 13-8-1992 was filed before the executing court. Effectively, this was in the position of a new application because the law does not provide for any amendments as far as execution applications are concerned. The relief asked for was not anywhere akin to what was prayed for in the original application, but on the other hand the application sought to have the judgment-debtor arrested and confined to prison. The application was opposed by the present petitioner who was the original defendant on the ground that it is barred by limitation as also on the ground that it was not at all maintainable. The learned trial judge after hearing the parties observed that the objection canvassed was to the effect that the proceeding was virtually in the nature of a new petition because it was a new relief and is misconceived; but insofar as the execution petition which was filed within the period of limitation was very much alive, that therefore it was certainly open to the applicant bank to pray for a different mode of execution. The learned judge also observed that the question of limitation would not come in because it was virtually a fresh application to the court in the existing proceeding and as long as the main execution application No. 249 of 1984 was filed within the period of limitation that it was open to the bank to apply within that framework. The learned judge accordingly allowed the application and this revision petition is directed against that order.

(2.) an interesting argument has been advanced before mewhich princ ipally proceeds on the footing that even if the execution application No. 249/84 filed within the period of 12 years from the date of passing of the decree had been presented to the court in time and even if that proceeding was pending, that if the petitioner bank had been unsuccessful in recovering its dues, that they ought to have been sufficiently careful and vigilant with regard to the time period. What is submitted is that whereas the original execution proceeding could have been proceeded with, that if any fresh application were to be made to the court, it could only be through a new application and in that event, such an application would have to be still within the original period of limitation. The learned Advocate for the petitioner submitted that merely by seeking to couch the application within the framework of the earlier application which is incidentally not permissible in law, that the period of limitation can under no circumstances be extended. This is a very gross case because it is demonstrated to me that the application was presented to the court as late as on 13-8-1992 and that it came to be allowed on 20-10-1992. Learned Advocate submits that this application made on 13-8-1992, which is a little over 17 years from the date on which the decree has been passed, is hopelessly barred by time by virtue of the Provisions of the Limitation Act and that it could not have been granted.

(3.) the arguments canvassed on behalf of the bank is that the bank had its own difficulties in executing the decree insofar as it was unable to do so and as a last resort it had to seek arrest of the judgment-debtor. They contend that after exhausting all available remedies that this was the last resort and effectively what is contended is that it was an extension of the earlier proceeding. The learned trial judge has accepted this argument but has principally overlooked the fact that unlike plaints or unlike several other pleadings, that there is no provision under which execution applications can be amended. All that the law permits under order 21, Rule 17 is that any errors or defects are to be corrected at the inception itself which means that these have to be done at the initial stage. This does not mean that a party executing a decree is precluded from reapplying to the court for a different mode of execution but what needs to be emphasised is that each such application is a fresh, distinct and independent one and cannot come within the ambit or umbrella of the earlier proceeding. This aspect of the matter is of some consequence because the learned Advocate is justified in pointing out that over 18 years had elapsed when the last application was made to the court and the argument that it dates back to the original application is fallacious. It is true that order 21, Rule 17 does make provision for a situation whereby corrections or alterations are permitted in an execution application within the time prescribed by the court and that this shall date back to the original application but that presupposes the fact that the corrective steps are taken within the outer limit of the prescribed period of limitation. It is equally necessary to have a very clear view of the Provisions of law in this regard because the Limitation Act prescribes a time limit within which a decree should be put in execution but that would only be the starting point of the proceeding. Normally, one would expect that the execution proceeding would conclude within reasonable time but the present case is a classic instance of how it could, for whatever reason, drag on for an abnormally long period of time and it is certainly not the scheme of the law to sanction this. Though there is no specific provision either in the C.P.C. or in the Limitation Act, the power is implicit under Section 151, C.P.C. for a court to dismiss the execution application if it is not being prosecuted diligently and if the process is not completed within a reasonable period of time. This is very necessary as otherwise it would lead to a highly incongruous situation bordering on the absurd as has happened in the present case where an amendment application was made over 17 years after the date on which the decree was passed.