MARTIN BURN LIMITED Vs. RAMNATH JHUNJHUNWALA

JUDGEMENT

(1.) This is an appeal by the judgment debtor. The opinion advanced by the appellant's legal advisor may be erroneous or this court may not agree with it but it needs to be said that the grounds on which the application to resist the decree were maintained before the learned trial court were most novel and intriguingly interesting.

(2.) Under the terms of settlement on which a consent decree was passed on 21/5/2002, strangely, construction of the building had to be completed on 31/5/2002. In July 2005, an application for extension of time to inter alia complete the building under those terms was made by the respondents. This application was opposed by the appellant on inter alia the ground that the suit had resulted in a decree. This court did not retain the power to extend the time for performance of the decree. The application was only argued on this point and became contested. The court applied Sec. 148 of the Civil Procedure Code together with rule 46 of Chapter XXXVIII of the Original Side Rules which gave it power to extend the period of time fixed by it to do any act. On 11/7/2005 the court allowed the application. On 18/7/2005 this order was clarified by prescribing "six weeks from the date thereof" for completion of the building. Aggrieved, the appellant preferred an appeal before a division bench of this court. It was dismissed on 16/10/2007 by a reasoned judgment. In the third column of the tabular statement in the execution application (EC NO.220 of 2014) taken out by the respondents to enforce this consent decree, where there is provision for the date of the decree, their advocate had inserted 21/5/2002, as the date of the consent decree. Mr. Sakya Sen, learned advocate appearing for the appellant submits that the original consent decree had merged with the subsequent order dtd. 11/7/2005. Thereafter, both these pronouncements of the court had merged in the judgment and order of the division bench dtd. 16/10/2007. Hence the decree to be executed was one dtd. 16/10/2007. Thus, the date of the decree in the tabular statement was wrong, the execution application was defective, not maintainable and had to be dismissed.

(3.) Now if this point of the appellant judgment debtor was to succeed, then the execution application would have to be dismissed. A further execution application would not be maintainable, being barred by the laws of limitation.