J. Rama vs Vijaya Bank

M.F. Saldanha, J.—This C.R.P. 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 in so far 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 OS. No. 146/74 in which a decree came to be passed on 10.6.1975. An application for execution of the decree being No. 249/84 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 13.8.92 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 application 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 in so far 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. 249/84 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.

An interesting argument has been advanced before me which principally 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 still be 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 13.8.92 and that it came to be allowed on 20.10.92. Learned Advocate submits that this application made on 13.8.92, 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.

The arguments canvassed on behalf of the bank is that the bank had its own difficulties in executing the decree in so far 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 Joes not mean that a party executing a decree is precluded from re-applying 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 17 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 dear 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 u/s 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.

In support of this principle that an amendment cannot be permitted at a belated stage and that too after the period of limitation has elapsed, the petitioner''s learned Advocate drew my attention to the decision reported in the case of Smt. Sabitri Bala Mallick and Others Vs. Alak Ranjan Paul and Others, , as also another decision of the Allahabad High Court reported in the case of Kishore Joo Vs. Guman Behari Joo Deo, . The Courts had occasion to consider the following decisions :--

AIR 1980 Cal. 2 1961 ALL 73 1960 Bom. 438 1957 S.C. 357 1957 S.C. 363 1937 ALL 446 1937 Bom. 374 1936 ALL 21 (FB) 1936 ALL 653 1935 P.C. 44 1935 ALL 1001 1925 Cal 140 1923 ALL 120 1921 P.C. 50 1916 Mad 692 1960 ALL L.J. 467 (1899) 1 BOM. LR 667 ILR (1909) 33 Bom. 644 (1904) 31 I.A. 203 ILR 1932 Cal.1296 ILR 1936 ALL 515 1935 ALL L.J. 676 ILR 1951 Cal. 953 1920 ALL L.J. 977 (75) 79 Cal W.N. 546

Kalipada Sinha Vs. Mahalaxmi Bank Ltd.,

Janki Sahu Trust Vs. Ram Palat,

1950 ALL L.J. 833(FB)

Shekendarali Meah Vs. Abdul Gafur Choudhury and Others,

(1935) 39 Cal. WN. 1144 I.L.R. (1890) Cal. 631(FB)

It is unnecessary for me to refer to these decisions individually or for that matter to the long list of decisions subsequent to the aforesaid ones which have taken more or less the same view. In sum and substance, what has been pointed out is that applications made u/s 151 such as in the present case, cannot be used to defeat any of the specific provisions as embodied in the CPC and particularly where a bar is prescribed or can be read into those provisions that it cannot be overcome or defeated by having resort to Section 151 CPC.

Quite apart from the test of fairness and reasonableness, what needs to be observed is that a degree of diligence and expediency is not only incumbent and expected on the part of the decree-holder but more importantly, the Courts will not permit or assist a litigant who has not displayed a reasonable amount of diligence in relation to his own decree. An execution application if allowed to be varied and amended and that too long after the period of limitation is over, would lead to an unsatisfactory and wholly impermissible position in law whereby the provisions of the Limitation Act would be defeated. There is no provision for extending the period of limitation in these situations and what cannot be done directly cannot be permitted to be done indirectly. This briefly summarises the position in law and to my mind, the petitioner''s learned Advocate is justified in pointing out that the lower Court was clearly in error in having permitted any application after the original period of limitation was over. The application filed on 13.8.92 itself was nonest and was therefore still born.

In view of the aforesaid position, the petition succeeds. The impugned order passed by the Trial Court on 20.10.1992 is set aside. In the circumstances of the case, there shall be no order as to costs.