KANTI BHUSAN DEB Vs. SUDHANGSHU NATH

JUDGEMENT

(1.) BOTH Mr. N. Dhar, learned counsel appearing for the petitioner and Mr. M. Nath, learned counsel appearing for the respondents have been heard extensively. This application under Article 227 of the Constitution of India ought to have been registered as Civil Revision Petition(Article 227) and not as a Writ Petition. Necessary correction may be done by the Registry even at this belated stage. This application is directed against the order dated 30.9.2005 passed by the learned Civil Judge (Junior Division) No.1, Karimganj in Misc. Case No.180 of 2004 allowing the application filed by the respondents for amendment of their execution application. On carefully perusing the contents of the impugned order, I am of the view that the same does not suffer from any grave jurisdictional error calling for interference of this Court.

(2.) NEVERTHELESS , the learned counsel for the petitioner has strenuously urged this Court to the effect that when the application for execution of the decree in question is, prima facie, time-barred, the learned Civil Judge ought not to have been taken up the application for amendment of the execution application without first deciding the issue on limitation. According to the learned counsel, the decree sought to be executed in the execution application was passed by the learned Civil Judge on 27.7.1992 whereas the application for execution of the decree was filed only on 19.10.2004 i.e. over twelve years after the said decree, and since under Article 136 of the Limitation Act, 1962, the period of limitation prescribed for execution of decree is 12 years, the application is helplessly time barred. The learned counsel submits that it was the duty of the learned Civil Judge to dismiss the application for execution filed by the respondents as and when same was presented on the ground of limitation, and as such the impugned order suffers from grave jurisdictional error, which cannot be sustained in law. In the instant case, the respondents filed Title Suit No.288 of 1999 before the learned Munsiff No.1, Karimganj against the petitioner and others for declaration of title over the suit land and for correction of the land record thereof. The learned Munsiff decreed the suit on 27.7.1992 whereafter the respondents without filing any application for execution of the decree before the competent court of jurisdiction straightaway approached the Settlement Officer, Karimganj for correction of the land record in respect of the suit land. The Settlement Officer, Karimganj by the order dated 15.12.1994 in Misc. Case No.44 of 1993-94 allowed the application and corrected land record in respect of the land. The petitioner preferred an appeal against the order of the Settlement Officer before the Assam Board of Revenue which by the order dated 30.10.2000 in Case No.18 RA(KJ) of 1995 set aside the order of the Settlement Officer and remanded the matter to the Court below for fresh disposal. The respondents thereafter filed Misc. Case No.180 of 2004 before the learned Civil Judge (Junior Division) No.1, Karimganj for execution of the decree dated 27.7.1992. As already noted, on 3.8.2005, they filed an application before the learned Civil Judge for amendment of their application for execution of the decree, which was opposed by the petitioner by filing his written objection before the learned Civil Judge (Junior Division) No.1, Karimganj, who, by the impugned order, allowed his application for amendment.

(3.) AS I have decided not to interfere with the impugned order, this Civil Revision is hereby dismissed. Notwithstanding the dismissal, it is, however, directed that the learned Civil Judge (Junior Division), Karimganj now takes up the issue as to whether the execution application filed by the respondents is barred by Article 136 of the Limitation Act 1963 or not and decide the same without any further delay. It is made clear that my observations in the foregoing are purely tentative in nature and shall not bind the learned Civil Judge, who shall take independent decision as to whether the execution application filed by the respondents is barred by Article 136 of the Limitation Act, 1963. Both the parties shall appear before the learned Civil Judge, Karimganj on 4.9.2013 for further proceedings.