RAMCHANDRAN Vs. SUNDARAM FINANCE PVT.LTD.

JUDGEMENT

(1.) This revision petition is against the order dated 24.10.2014 in E.P.No.162/2010 in Arbitration Case No.2/1998 on the file of the Court of the Additional District Judge-V, Palakkad, by the fifth respondent/judgment debtor No.5. Earlier, in order to execute the award dated 17.09.1998, E.P.No.208/1998 was filed before the Subordinate Judge's Court, Palakkad. Subsequently it was dismissed as not pressed on 11.11.2010. Thereafter E.P.No.162/2010 was filed on 22.11.2010. Thereon the fifth respondent and other judgment debtors entered appearance and raised bar of limitation as one of their contentions. It was heard by the execution court/the Additional District Court-V, Palakkad and found that the decree holder is entitled to the benefit under Sec. 14 of the Limitation Act and that the E.P is within time. The said order is under challenge in the present revision.

(2.) Sec. 14 of the Limitation Act gives benefit to a party who has been prosecuting another civil proceeding with due diligence and in good faith, but in a wrong forum. Sec. 14 is really a beneficial provision and a special advantage given so as to advance justice when a person is prosecuting a civil proceeding in a wrong forum under a bona fide belief. The words "due diligence" and "in good faith" are incorporated in Sec. 14 so as to avoid defeating of provisions of the Limitation Act in an exemplary manner. The protection under Sec. 14 is available only on satisfying "due diligence" and "good faith", which are the pre-requisites. Unless these pre-requisites, i.e., "due diligence" and "good faith" coupled with defect of jurisdiction with respect to same subject matter in issue are satisfied, the party claiming exclusion of time cannot succeed. In the present case, originally the execution proceedings were initiated in the Court of the Subordinate Judge, Palakkad on 24.7.1999. It was dismissed as not pressed on 11.11.2010, after a lapse of more than eleven years. The expression "prosecuting with due diligence and in good faith" is not confined only to the time in which the execution proceedings was initiated or the time in which execution petition was filed/civil proceedings were initiated. In order to get the benefit of Sec. 14 of the Limitation Act, the party who claims the benefit should show and satisfy that he has initiated the proceedings with due diligence and in good faith and also prosecuted the same with due diligence and in good faith all along the proceedings till it was rejected or dismissed by that court on the ground of defect of jurisdiction or error in jurisdiction. The execution petition was prosecuted before the Subordinate Judge's Court, Palakkad for a long period of more than eleven years. While applying the above said principle, the decree holder who claims the benefit under Sec. 14 of the Limitation Act should show and satisfy that he had initiated the execution proceedings before the earlier forum under a bona fide mistake and in good faith after exercising due diligence. He must also show that he was prosecuting the execution petition/proceedings all along the period in which it was pending before the earlier forum with due diligence and in good faith. Otherwise, he will not get the benefit under Sec. 14 of the Limitation Act. Needless to say that the burden of showing presence of the element of "due diligence" and "in good faith" is on the party claiming exclusion of time, but no satisfactory evidence was adduced though the execution petition was prosecuted for a long period of more than eleven years. No element of due diligence and good faith was brought out by the decree holder who is the respondent herein.

(3.) In the present case, the suit was dismissed not on defect of jurisdiction or error of jurisdiction, but it was dismissed as not pressed, which would cast a duty on the person who claims the benefit under Sec. 14 of the Limitation Act to show that the earlier forum was having no jurisdiction over the matter and that if it was proceeded, it would result in rejection/dismissal on the ground of defect of jurisdiction. A conjoint reading of the definition clause of Sec. 2(e) defining the expression 'Court' and Sec. 36 of the Arbitration and Conciliation Act, 1996, would show that only the principal Civil Court of original jurisdiction in a district and the High Court in exercise of its original civil jurisdiction having jurisdiction to decide the questions forming the subject matter of the arbitration if the same had been the subject-matter of a suit would alone have jurisdiction to execute an award which is a deemed decree under Sec. 36 of the Arbitration and Conciliation Act, 1996. Hence, the order of the lower court does not reflect proper exercise of jurisdiction vested with it. The order of the lower court is, therefore, liable to be set aside and I do so. The execution petition is dismissed as barred by limitation.