High Court
Case Details
WP(C) 245/2006 BEFORE HON’BLE MR.JUSTICE T. VAIPHEI JUDGMENT AND ORDER(ORAL)
Legal Reasoning
Both Mr. N. Dhar, learned counsel appearing for the petitioner and Mr. M . Nath, learned counsel appearing for the respondents have been heard extensivel y. 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 Petit ion. 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 le arned 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 execut ion 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 ca lling for interference of this Court. 2. Nevertheless, the learned counsel for the petitioner has strenuously urg ed this Court to the effect that when the application for execution of the decre e 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 w ithout 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 d ecree 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 limitati on 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 Ci vil Judge to dismiss the application for execution filed by the respondents as a nd 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 th e learned Munsiff No.1, Karimganj against the petitioner and others for declarat ion of title over the suit land and for correction of the land record thereof. T he learned Munsiff decreed the suit on 27.7.1992 whereafter the respondents with out filing any application for execution of the decree before the competent cour t of jurisdiction straightaway approached the Settlement Officer, Karimganj for correction of the land record in respect of the suit land. The Settlement Office r, Karimganj by the order dated 15.12.1994 in Misc. Case No.44 of 1993-94 allowe d the application and corrected land record in respect of the land. The petition er preferred an appeal against the order of the Settlement Officer before the As sam 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 t he Court below for fresh disposal. The respondents thereafter filed Misc. Case N o.180 of 2004 before the learned Civil Judge (Junior Division) No.1, Karimganj f or 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 appli cation for execution of the decree, which was opposed by the petitioner by filin g his written objection before the learned Civil Judge (Junior Division) No.1, K arimganj, who, by the impugned order, allowed his application for amendment. At this stage, it may be observed that the petitioner did not raise any 3. issue about limitation against the application for execution filed by the respon dents before the learned Civil Judge. Aggrieved by the order dated 30.9.2005, th is application under Article 227 of the Constitution is filed by the petitioner. It may be reiterated that the execution application was filed by the respondent s after the lapse of 12 years of passing the decree by the trial Court. This oug ht to have been noticed immediately by the learned Civil Judge while entertainin g the application for execution of the decree. Under Article 136 of the Limitati on Act, 1963, it is provided that for execution of any decree (other than a decr ee granting a mandatory injunction) or order of any civil court, the period of l imitation is 12 years. Furthermore, time begins to run when the decree or order becomes enforceable or where the decree or any subsequent order directs any paym ent of money or the delivery of any property to be made at a certain date or at recurring periods, when default in making the payment or delivery in respect of which execution is sought, takes place. Section 3 limits the time after which th e suit or other proceedings would be barred. Thus, it makes the question of limi tation a material one for determination in every case irrespective of whether th e question is raised by the parties or not. In every suit or petition filed by t he party, the Court shall correctly ascertain the date on which the cause of act ion to file the suit has arisen to decide if the suit is within time or barred b y limitation. In other words, under Section 3 of the Limitation Act, it is the d uty of the Court not to proceed with the suit, appeal or application, if it is m ade beyond the period of limitation prescribed irrespective of the fact whether the plea of limitation has been set up in defence or not. The Court has no choic e in the matter. When a suit is clearly time barred it cannot be decreed in the teeth of Section 3 of the Act. If any of the provisions contained in Section 4 t o24 (inclusive) are inapplicable, the mandatory provision of Section 3 is attrac ted and the result is that the Court is bound to dismiss the suit, appeal or app lication which on the face of it is barred by time. So it is clear that Court is required to consider the question of limitation even if no objection is taken b y the opposite party. The learned Civil Judge in entertaining the application fo r execution ought to have noticed the ambit and scope of Section 3 of the applic ation and ought to have decided the question as to whether the application for e xecution is time barred or not. Having failed to decide this issue at the very t hreshold, there is improper exercise of jurisdiction by the learned Civil Judge. 4. As I have decided not to interfere with the impugned order, this Civil R evision is hereby dismissed. Notwithstanding the dismissal, it is, however, dire cted 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 an y further delay. It is made clear that my observations in the foregoing are pure ly tentative in nature and shall not bind the learned Civil Judge, who shall tak e independent decision as to whether the execution application filed by the resp ondents is barred by Article 136 of the Limitation Act, 1963. Both the parties s hall appear before the learned Civil Judge, Karimganj on 4.9.2013 for further pr oceedings.