VALSAMMA KURIAN Vs. RAPHEAL CHURCH

JUDGEMENT

(1.) The order challenged in the revision arises from an application moved by the judgment debtors in E.P.No.404 of 2004 in O.S.No.897 of 1995 passed by the learned Principal Munsiff, Ernakulam. Pursuant to the execution of the decree passed in the above suit for eviction, the judgment debtors were evicted from a Mill situate in the plaint schedule property. Delivery was effected in the absence of the judgment debtors and, then, extensive damages were caused to their properties and machineries was the case of the judgment debtors to claim compensation of Rs. 2,40,000/- from the decree holders by filing an application before the execution court. Machineries removed from the Mill situate in the plaint schedule property had been entrusted by the Amin to the decree holders and since the judgment debtors failed to take delivery of the articles, an application was moved by them for issuing direction to the judgment debtors to receive such articles, and in default dispose them of by sale appointing an Advocate Commissioner. The application moved by the judgment debtors and also that of the decree holders as aforesaid were jointly considered and disposed under a common order by the learned Munsiff. The application of the judgment debtors claiming compensation was dismissed and that of the decree holders was allowed, directing the judgment debtors to receive all the articles, failing which, the articles were directed to be sold by appointing a Commission and depositing of the sale proceeds in the court. As against the order dismissing the application moved for compensation, the judgment debtors, three of them, impleading the remaining judgment debtor as a co-respondent with the decree holders have filed this revision.

(2.) I heard the counsel on both sides. A preliminary question emerges for consideration as regards the maintainability of the petition filed by the judgment debtors to claim compensation for the alleged loss and damages sustained on account of the removal of the machineries from his Mill in execution of the decree through court at the instance of the decree holders. Admittedly, the delivery giving rise to the cause of auction for the claim of compensation took place on 16.1.2006 and the application for compensation by the judgment debtors was moved three years later. The question emerges for consideration is whether such a claim petition at the instance of the judgment debtors is entertainable. The execution court had allowed the application moved under Section 5 of the Limitation Act for condoning the delay in filing the claim petition, and so much so, that question is not of much significance in entertaining this revision is the submission made by the learned counsel for the revision petitioners/judgment debtors. I cannot accept that submission. The question to be considered is whether a claim petition mooted by the judgment debtors, which no doubt, was an application under Section 47 of the CPC imputing loss and damages on account of the act committed by the decree holders in executing the decree, which has been filed beyond the period of limitation of three years, is entertainable or not. Whether the delay in filing such an application under Section 47 of the CPC can be condoned by resort to Section 5 of the Limitation Act is also of vital significance. Section 3 of the Limitation Act interdicts a court from entertaining a suit or proceedings whether or not any objection is raised beyond the prescribed period of limitation. So far as the claim petition canvassed by the judgment debtors, the period of limitation is three years as governed by Article 137 of the Limitation Act is not disputed. Whether an application under Section 47 of the CPC for raising a claim beyond the period prescribed in Article 137 of the Limitation Act advancing a case that in execution of the decree the claimant had suffered injury or damages is entertainable is the question to be considered. So far as the suit for damages, the prescribed period of limitation is three years, and beyond that period, there cannot be any condonation of delay by resort to Section 5 of the Limitation Act. Similar is the situation when a claim is raised under Section 47 of the CPC for entertaining a claim for compensation setting forth a case that in execution of the decree claimant has suffered damages Section 5 of the Limitation Act cannot extent or condone any delay beyond the prescribed period in entertaining such a claim. The execution court entertaining and allowing the application moved by the judgment debtors under Section 5 of the Limitation Act has exercised authority without jurisdiction. Claim petition filed under Section 47 of the CPC beyond the period of three years ought to have been dismissed in limini and there was no question of entertaining such petition condoning the delay under Section 5 of the Limitation Act. In that view of the matter, I find that the revision challenging the dismissal of the claim petition by the court below does not require to be examined with reference to its merits as the claim itself was barred by limitation. Revision is accordingly dismissed.