Cr No. 6402 of 2023 · Punjab And Haryana High Court · 2024

Narayan Swarup Agal had died and his widow Smt. Kanta was impleaded in his NEETIKA TUTEJA 2024.09.03 10:10 I attest to the accuracy and integrity of this document CR-6402-2023 (O&M) place.

2.3 A8er deposi(cid:6)ng the balance sale considera(cid:6)on as per the decree, the execu(cid:6)on was filed by Smt. Kanta Agal, the widow of Narayan Swarup Agal on 03.06.1999. Sale deed was executed in terms of the decree on 03.11.1999 and pursuant to the order passed by the court, warrants of possession were is- sued. As per the order dated 10.11.2001 (Annexure P-4) of the execu(cid:6)ng court, it emerged that JDs had already sold the land in dispute to Sanjay Goyal & Sachin Goyal (third party objectors), regarding which muta(cid:6)on No.1524 dated

08.03.1996 had been sanc(cid:6)oned. On 19.12.2002, the execu(cid:6)on was dismissed as withdrawn on the basis of statement made by counsel for the decree-holder, as per order Annexure P-5.

2.4 On 17.12.2018, second execu(cid:6)on was filed by Jitendra Agal son of Narayan Swarup Agal, without whispering about the earlier execu(cid:6)on. During the pendency of this execu(cid:6)on, an applica(cid:6)on under Order 1 Rule 10 CPC was moved by Sanjay Goyal & Sachin Goyal to be impleaded as a party but the same was dismissed on 03.12.2018 vide Annexure P-7, to be not maintainable. There- a8er, the judgment-debtors as well as third party objectors filed separate objec- (cid:6)ons (Annexure P-8 & P-9) against the execu(cid:6)on mainly on the ground that the execu(cid:6)on was barred by limita(cid:6)on, although some other grounds to oppose the execu(cid:6)on were also raised. A8er taking reply Annexure P-10 of the DH, objec- (cid:6)ons of both of them i.e. JDs as well as third party objectors were dismissed vide impugned order dated 30.09.2023 (Annexure P-11), by relying upon “V. Uthirapathi v. Ashrab Ali” AIR 1998 SC 1168.

3.1 Assailing the aforesaid order, it is contended by learned counsel for the judgment-debtors (pe(cid:14)(cid:14)oner herein) that it was the specific conten(cid:6)on of the pe(cid:6)(cid:6)oners that execu(cid:6)on had been filed a8er a lapse of 12 years from the date of passing of the decree and therefore, it was barred under Ar(cid:6)cle 136 of the Limita(cid:6)on Act. Learned counsel contends that limita(cid:6)on once started, cannot be stopped. The li(cid:6)gant cannot extend the limita(cid:6)on against statute. The execu(cid:6)on can be filed within a period of 12 years and therefore, execu(cid:6)on filed NEETIKA TUTEJA 2024.09.03 10:10 I attest to the accuracy and integrity of this document CR-6402-2023 (O&M) in 2018 i.e. a8er a lapse of almost 20 years for implementa(cid:6)on of decree passed in 1999 is clearly barred by limita(cid:6)on. Learned counsel has referred to “Manohar Lal v. Sunder Lal” reported as Law Finder Doc ID #754406.

3.2 It is further pointed out that objec(cid:6)on was also raised that vide muta(cid:6)on No.1726 dated 29.05.2001, muta(cid:6)on of inheritance was already sanc- (cid:6)oned in favour of Jitendra Agal, who has filed the present second execu(cid:6)on and his sisters, in the same Revenue Estate, where the suit land is situated and thus, he had due knowledge about the decree in ques(cid:6)on. Learned counsel con- tends further that authority cited by learned Execu(cid:6)ng Court i.e. “V. Uthirap- athi v. Ashrab Ali” is not applicable to the facts of the present case, as in the case before Hon’ble Supreme Court, the earlier execu(cid:6)on pe(cid:6)(cid:6)on was pending, whereas in the present case, the first execu(cid:6)on pe(cid:6)(cid:6)on had been dismissed as withdrawn and thus, was not pending, when the second execu(cid:6)on was filed.

3.3 It is further argued that the second execu(cid:6)on even suffers from the vice of concealment, inasmuch as there is not even a whisper in the said ex- ecu(cid:6)on about the filing of the first execu(cid:6)on pe(cid:6)(cid:6)on, which had been dis- missed as withdrawn and thus, the decree-holder, has not come to the Court with clean hands and so, is not en(cid:6)tled for any relief.

4. Refu(cid:6)ng the aforesaid conten(cid:6)ons and defending the impugned order, learned counsel for the respondent/decree-holder contends that the ear- lier execu(cid:6)on was dismissed as withdrawn based upon the statement dated

19.12.2002 made by the counsel for the then decree-holder Smt. Kanta Goyal, as per which Smt. Kanta Agal had expired and none of her LRs had contacted the counsel for the long (cid:6)me and it is for this reason that he prayed for consigning the execu(cid:6)on and that the LRs will file the fresh execu(cid:6)on later. Learned counsel contends that in these circumstances, the present execu(cid:6)on filed in 2018 shall be considered to be in the con(cid:6)nua(cid:6)on of the earlier execu(cid:6)on and therefore, bar of limita(cid:6)on is not applicable to the facts and circumstances of the present case. Learned counsel has referred to the following authori(cid:6)es: (cid:1) V. Uthirapathi v. Ashrab Ali (cited supra); NEETIKA TUTEJA 2024.09.03 10:10 I attest to the accuracy and integrity of this document CR-6402-2023 (O&M) (cid:1) Prem Chand vs. Swaran Singh, CR N: 8488 of 2015 decided by this court on 4.10.2017; (cid:1) Smt. Vithabai G. Ghodake vs. United Western Bank Ltd, AIR 2003 (Kar- nataka) 266; (cid:1) Radhakrishanan vs. State of Kerala 2006 (1) CivCC (Kerala High Court); (cid:1) Gopal Chander Naskar vs. Hiranya Prova Moulick AIR 1981 (Calcu>a)

5. I have considered submissions of both the sides and have perused the record.

6. Factual posi(cid:6)on is not disputed to the effect that suit for specific performance filed by Narayan Swarup Agal, who was replaced by his widow Smt. Kanta Agal during pendency of the suit, was decreed on 20.02.1999 and that the first execu(cid:6)on was filed by her on 03.06.1999. During the pendency of the aforesaid execu(cid:6)on, statement was made by Shri R.P. Goyal, Advocate for the decree-holder on 19.12.2002, the English transla(cid:6)on of which is as under: “Stated that Smt. Kanta Agal / decree-holder has expired. None of her legal rep- resenta(cid:6)ves has contacted me for a long (cid:6)me. Therefore, present execu(cid:6)on be consigned to the records. Her legal representa(cid:6)ves shall later on file the fresh execu(cid:6)on.”

7. Based upon the aforesaid statement, following order (Annexure P-5) was passed by the Execu(cid:6)ng Court on the same day i.e., 19.12.2002:- “Statement of Sh. RP Goel, counsel for the decree holder has been recorded separately, in which he has stated that he does not want to proceed further with the present execu(cid:6)on because of death of decree holder and the same be dismissed as withdrawn. Heard. In view of the statement, present execu(cid:6)on is hereby dismissed. File be consigned to record room a8er due compliance.”

8. Therea8er, the second execu(cid:6)on has been filed by Shri Jitendra Agal son of Shri Narain Swarup Agal on 07.12.2018 (Annexure P-6). The perusal of this execu(cid:6)on would reveal that there is not even a whisper about filing of the first execu(cid:6)on by his mother or that earlier execu(cid:6)on was dismissed as NEETIKA TUTEJA 2024.09.03 10:10 I attest to the accuracy and integrity of this document CR-6402-2023 (O&M) withdrawn for any reason whatsoever.

9. Ar(cid:6)cle 136 of the Limita(cid:6)on Act, 1963 provides the limita(cid:6)on pe- riod of 12 years for filing an execu(cid:6)on. Within the said limita(cid:6)on period of 12 years, any number of execu(cid:6)ons can be filed for geJng the decree imple- mented.

10. The ques(cid:6)ons in the aforesaid facts and circumstances of the present case are: (cid:1) Whether the statement made on 19.12.2002 by the counsel for the decree holder in the earlier execu(cid:6)on, could extend the period of limita(cid:6)on for filing the fresh execu(cid:6)on beyond the period of 12 years from the date of the decree.? (cid:1) Whether Sec(cid:6)on 5 of the Limita(cid:6)on Act, under which delay in limita(cid:6)on period can be condoned, is applicable to the execu(cid:6)on proceedings.? (cid:1) Whether the learned Execu(cid:6)ng Court in the impugned order has correctly applied the law laid down by the Hon’ble Supreme Court in V. Uthirapathi’s case (supra).?

11. Sec(cid:6)on 5 of the Limita(cid:6)on Act, 1963 reads as under: “5. Extension of prescribed period in certain cases.—Any appeal or any applica(cid:14)on, other than an applica(cid:14)on under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908), may be admi.ed a/er the prescribed period if the appellant or the applicant sa(cid:14)sfies the court that he had sufficient cause for not preferring the appeal or making the applica(cid:14)on within such period.”

12. Bare perusal of above provision makes it evident that Sec(cid:6)on 5 of the Limita(cid:6)on Act, 1963 is not applicable to any applica(cid:6)on under any of the provisions of Order XXI of the Code of Civil Procedure, 1908. As such, no applica(cid:6)on to extend the period of limita(cid:6)on can be entertained by condoning the delay in filing the execu(cid:6)on beyond prescribed period of limita(cid:6)on. Even the court cannot enlarge the period of limita(cid:6)on. Simply because the earlier execu(cid:6)on filed in (cid:6)me was withdrawn by counsel for decree holder, on account of death of decree holder, the second execu(cid:6)on filed beyond limita(cid:6)on by LR of NEETIKA TUTEJA 2024.09.03 10:10 I attest to the accuracy and integrity of this document CR-6402-2023 (O&M) the decree holder, can neither extend the period of limita(cid:6)on nor can it be considered as con(cid:6)nua(cid:6)on of the earlier execu(cid:6)on, which was dismissed for any reason.

13. Reliance can be made to Manohar Lal v. Sunder Lal (supra). In that case, a decree for specific performance was passed on 01.10.1994. First execu(cid:6)on was filed within (cid:6)me and the sale deed was executed in terms of the order passed by the Court. However, the said execu(cid:6)on was dismissed as withdrawn on 9.9.2006 with liberty to file fresh execu(cid:6)on for taking the possession of the suit property. However, the second execu(cid:6)on was filed beyond 12 years from the date of the decree. In the second execu(cid:6)on, there was not even a whisper about reviving of the previous execu(cid:6)on pe(cid:6)(cid:6)on, although it was men(cid:6)oned that the second execu(cid:6)on was being filed as per the order dated 09.09.2006. In these circumstances, it was held by this Court that even the liberty granted by the trial Court could not enlarge the period of limita(cid:6)on and in essence, such a liberty is against the statute, as valuable rights of the other side has been taken away.

14.1 Coming to V. Uthirapathi’s case, referred by Ld. counsel for the respondent and also relied by Ld. Execu(cid:6)ng Court in the impugned order, in that case, evic(cid:6)on pe(cid:6)(cid:6)on filed in 1982 by the landlord under the provisions of Tamil Nadu Building (Lease and Rent Control) Act, 1960 [in short ‘Act, 1960’] was allowed. Order of evic(cid:6)on was affirmed by the Appellate Authority. The landlord/ decree holder filed execu(cid:6)on within the limita(cid:6)on period on

27.02.1993. During the proceedings, landlord expired and an applica(cid:6)on was moved by his legal representa(cid:6)ves to be brought on record in pending execu(cid:6)on on 26.04.1994. As Rule 25 of the Rules framed under the aforesaid Act of 1960 provided a limita(cid:6)on period of 30 days to bring on record the LRs, therefore the applica(cid:6)on moved by the LRs to implead them as a party was dismissed by the Execu(cid:6)ng Court. Civil revision was filed before the High Court by the LRs of the landlord, which was allowed. The review applica(cid:6)on filed by the tenant was dismissed. Both those orders were challenged by the tenant before Hon’ble NEETIKA TUTEJA 2024.09.03 10:10 I attest to the accuracy and integrity of this document CR-6402-2023 (O&M) Supreme Court. The point for considera(cid:6)on before Hon’ble Supreme Court was as to whether Rule 25 referred by the Execu(cid:6)ng Court was intended to apply to the execu(cid:6)on proceedings and whether in any event, a fresh execu(cid:6)on pe(cid:6)(cid:6)on could have been filed by the legal representa(cid:6)ves of the decree holder.

14.2 Hon’ble Supreme Court referred to Sec(cid:6)on 18 of the Act, 1960, as per which every order as passed by the Rent Controller or order passed on appeal, was to be executed by the Controller, as if such order is an order of the Civil Court and for this purpose, the Controller shall have all the powers of the Civil Court. In the light of this Rule, Hon’ble Supreme Court considered as to what are the powers of the Civil Court while execu(cid:6)ng the orders passed by it.

14.3 It is in the aforesaid background facts that Hon’ble Supreme Court observed as under:- “9. If during, the pendency of a regular execu(cid:6)on proceeding filed on the basis of a decree or order of a Civil Court, the decree holder or the judgment debtor dies and his legal representa(cid:6)ves are not brought on record within ninety days, can the Civil Court dismiss the execu(cid:6)on pe(cid:6)(cid:6)on as abated?

10. Order 22 Rule 12 of the Code of Civil Procedure reads as follows: "Order 22 Rule 12: Applica(cid:14)on of order to execu(cid:14)on proceedings: Nothing in Rules 3, 4 and 8 shall apply to proceedings in execu(cid:6)on of a decree or order." In other words the normal principle arising in a suit - before the decree is passed - that the legal representa(cid:6)ves are to be brought on record within a par(cid:6)cular period and if not, the suit could abate, - is not applicable to cases of death of the decree holder or the judgment debtor in execu(cid:6)on proceedings.

11. In Venkatachalam vs. Ramaswami [1932 ILR 55 Mad. 352 = AIR 1932 Mad. 73 (FB)], a Full Bench of the Madras High Court has held that this rule enacts that the penalty of abatement shall not a(cid:28)ach to execu(cid:6)on proceedings. Mulla's Commentary on CPC (Vol.3) p. 2085 (15th Ed., 1997) refers to a large number of judgments of the High Courts and says: NEETIKA TUTEJA 2024.09.03 10:10 I attest to the accuracy and integrity of this document CR-6402-2023 (O&M) "Rule 12 engra8s an exemp(cid:6)on which provides that where a party to an execu(cid:6)on proceedings dies during its pendency, provisions as to abatement do not apply. The rule is, therefore, for the benefit of the decree holder, for his heirs need not take steps for subs(cid:6)tu(cid:6)on under Rule 2 but may apply immediately or at any (cid:6)me while the proceeding is pending, to carry on the proceeding or they may file a fresh execu(cid:6)on applica(cid:6)on." In our opinion, the above statement of law in Mulla's Commentary on the CPC, correctly represents the legal posi(cid:6)on rela(cid:6)ng to the procedure to be adopted by the par(cid:6)es in execu(cid:6)on proceedings and as to the powers of the Civil Court.

12. It is clear, therefore, that if a8er the filing of an execu(cid:6)on pe(cid:6)(cid:6)on in (cid:6)me, the decree holder dies and his legal representa(cid:6)ves do not come on record - or the judgment debtor dies and his legal representa(cid:6)ves are not brought on record, then there is no abatement of the execu(cid:6)on pe(cid:6)(cid:6)on. If there is no abatement, the posi(cid:6)on in the eye of law is that the execu(cid:6)on pe(cid:6)(cid:6)on remains pending on the file of the execu(cid:6)on Court. If it remains pending and if no (cid:6)me limit is prescribed to bring the legal representa(cid:6)ves on record in execu(cid:6)on proceedings, it is open in case of death of the decree holder, for his legal representa(cid:6)ve to come on record at any (cid:6)me. The execu(cid:6)on applica(cid:6)on cannot even be dismissed for default behind the back of the decree holder's legal representa(cid:6)ves. In case of death of the judgment debtor, the decree holder could file an applica(cid:6)on to bring the legal representa(cid:6)ves of the judgment debtor on record, at any (cid:6)me. Of course, in case of death of judgment- debtor, the Court can fix a reasonable (cid:6)me for the said purpose and if the decree holder does not file an applica(cid:6)on for the aforesaid purpose, the Court can dismiss the execu(cid:6)on pe(cid:6)(cid:6)on for default. But in any event the execu(cid:6)on pe(cid:6)(cid:6)on cannot be dismissed as abated. Alterna(cid:6)vely, it is also open to the decree holder's legal representa(cid:6)ves, to file a fresh execu(cid:6)on pe(cid:6)(cid:6)on in case of death of the decree holder; OR, in case of death of the judgment debtor, the decree holder can file a fresh execu(cid:6)on pe(cid:6)(cid:6)on impleading the legal representa(cid:6)ves of the judgment debtor; such a fresh execu(cid:6)on pe(cid:6)(cid:6)on, if filed, is, in law, only a con(cid:6)nua(cid:6)on of the pending execu(cid:6)on pe(cid:6)(cid:6)on - the one which was filed in (cid:6)me by the decree holder ini(cid:6)ally. This is the posi(cid:6)on under the Code or Civil Procedure.”

15. It is, thus, clear that as per the legal posi(cid:6)on expounded by Hon’ble Supreme Court that if the execu(cid:6)on pe(cid:6)(cid:6)on remains pending on the file of the Execu(cid:6)ng Court and no (cid:6)me limit is prescribed to bring on record the legal NEETIKA TUTEJA 2024.09.03 10:10 I attest to the accuracy and integrity of this document CR-6402-2023 (O&M) representa(cid:6)ves in the execu(cid:6)on proceedings, then it is open in the case of the death of the decree holder, for his legal representa(cid:6)ves to come on record at any (cid:6)me and the execu(cid:6)on pe(cid:6)(cid:6)on cannot be dismissed in default behind the back of the said legal representa(cid:6)ve of the decree holder. This legal posi(cid:6)on is applicable, when the execu(cid:6)on pe(cid:6)(cid:6)on is pending and the death of the decree holder occurs and in this eventuality, the execu(cid:6)on pe(cid:6)(cid:6)on is not to be abated and an applica(cid:6)on to bring on record the LRs can be brought by them at any (cid:6)me. Hon’ble Supreme Court explained further that though in any event, the execu(cid:6)on pe(cid:6)(cid:6)on cannot be dismissed as abated but alterna(cid:6)vely, it is also open to the decree holder’s legal representa(cid:6)ves to file a fresh execu(cid:6)on pe(cid:6)(cid:6)on in the case of death of the decree holder. However, in case of the death of the judgment debtor, the decree holder can file a fresh execu(cid:6)on pe(cid:6)(cid:6)on by impleading the legal representa(cid:6)ves of judgment-debtor and that such a fresh execu(cid:6)on pe(cid:6)(cid:6)on, if filed in law is only con(cid:6)nua(cid:6)on of the pending execu(cid:6)on pe(cid:6)(cid:6)on, the one which was filed in (cid:6)me by the decree holder ini(cid:6)ally.

16. It will be clear from the aforesaid legal posi(cid:6)on that it is only in the case of death of the judgment-debtor, when a fresh execu(cid:6)on pe(cid:6)(cid:6)on is filed by the decree holder by impleading the legal representa(cid:6)ves of the deceased judgment-debtor that such an execu(cid:6)on pe(cid:6)(cid:6)on is to be considered only the con(cid:6)nua(cid:6)on of the pending execu(cid:6)on pe(cid:6)(cid:6)on, the one which was filed in (cid:6)me by the decree holder ini(cid:6)ally. However, this is not applicable in the case of death of the decree holder. Although it is open to the decree holder’s legal representa(cid:6)ves to file a fresh execu(cid:6)on pe(cid:6)(cid:6)on in the case of the death of the decree holder, but such an execu(cid:6)on is to be filed within the period of limita(cid:6)on of 12 years from the date of the decree and it cannot be considered as con(cid:6)nua(cid:6)on of earlier execu(cid:6)on which was filed in (cid:6)me and which is not pending and which was earlier either dismissed as withdrawn or dismissed in default or disposed of for any other reason.

17. In the aforesaid facts and circumstances, it is held that learned Execu(cid:6)ng Court in the impugned order wrongly applied the legal posi(cid:6)on as NEETIKA TUTEJA 2024.09.03 10:10 I attest to the accuracy and integrity of this document CR-6402-2023 (O&M) explained by the Hon’ble Supreme Court in V. Uthirapathi’s case because in the present case, the second execu(cid:6)on was filed by Jitendra Agal, the legal representa(cid:6)ve of the decree holder in December, 2018 i.e. a8er more than 19 years from the date of decree dated 20.02.1999. So much so, the said second execu(cid:6)on was filed a8er 16 years from the dismissal as withdrawn of the earlier execu(cid:6)on and evidently, it was clearly barred by limita(cid:6)on.

18. Coming to the authori(cid:6)es cited by learned counsel for the respondents/ decree holders, in Prem Chand v. Swaran Singh (supra), decree for mandatory injunc(cid:6)on was passed which was sought to be executed. The first execu(cid:6)on filed within (cid:6)me was withdrawn with liberty to file fresh and with further making the statement that proceedings were to be kept intact for filing the fresh execu(cid:6)on and said liberty was granted as to ‘no objec(cid:6)on’ was endorsed by counsel for the opposite party. It was in these circumstances, that second execu(cid:6)on filed beyond 12 years was held to be in the con(cid:6)nua(cid:6)on of the first execu(cid:6)on. Cited authority is not applicable to the present case for the simple reason that in that case a decree for mandatory injunc(cid:6)on was under execu(cid:6)on, to which Ar(cid:6)cle 136 of the Limita(cid:6)on Act is not applicable.

19. In Smt. Vithabai G. Ghodake v. The United Western Bank Ltd. (supra), relied by the counsel for the respondents, it was held that when the first execu(cid:6)on is dismissed in default and applica(cid:6)on is moved for restora(cid:6)on, within (cid:6)me, and there is sufficient cause for non-appearance of the decree holder on the date of hearing, the Court can restore the dismissed pe(cid:6)(cid:6)on to file and that such restora(cid:6)on does not amount to fresh execu(cid:6)on and so, the ques(cid:6)on of limita(cid:6)on does not arise to bar the execu(cid:6)on. In Radhakrishnan Vs. State of Kerala (supra), it was held that there is no (cid:6)me limit prescribed for filing an applica(cid:6)on for restora(cid:6)on by invoking Sec(cid:6)on 151 of the CPC. None of these authori(cid:6)es are applicable to the facts of this case, as in present case, no such applica(cid:6)on was moved by the decree holder / NEETIKA TUTEJA 2024.09.03 10:10 I attest to the accuracy and integrity of this document CR-6402-2023 (O&M) respondents for reviving of the first execu(cid:6)on pe(cid:6)(cid:6)on and rather, as no(cid:6)ced earlier that in the second execu(cid:6)on filed by him in December, 2018 there is not even a whisper to the effect that earlier execu(cid:6)on had been dismissed as withdrawn on 19.12.2002.

20. In Gopal Chandra Naskar v. Hiranya Prova Moulick and Other (supra), relied by learned counsel for the respondent, execu(cid:6)on commenced in

1955. Judgment debtor died on 21.01.1966. Applica(cid:6)on for his subs(cid:6)tu(cid:6)on was filed on 15.05.1978. It was held that execu(cid:6)on is not barred by (cid:6)me in view of Rule 12 of Order 22 CPC and is covered by Sec(cid:6)on 31(b) of Limita(cid:6)on Act, as Ar(cid:6)cle 136 of the Limita(cid:6)on Act does not apply to the applica(cid:6)on for bringing on record the LRs. Clearly the said authority is not applicable to this case, because in the above case applica(cid:6)on for subs(cid:6)tu(cid:6)on of the LRs was moved during the pending execu(cid:6)on, which is not the posi(cid:6)on in present case.

21. In view of all the aforesaid discussion of the factual as well as of the legal posi(cid:6)on, it is held that the impugned order dated 30.09.2023 (Annexure P- 11) passed by the Execu(cid:6)ng Court, cannot be sustained in the eyes of law and is hereby set aside. It is held that the execu(cid:6)on filed on 07.12.2018 (Annexure P-6) by the respondent/decree holder is not maintainable being clearly barred by limita(cid:6)on. As such, the present pe(cid:6)(cid:6)on is hereby accepted.

02.09.2024 NeeHka Tuteja (DEEPAK GUPTA) JUDGE Whether speaking/reasoned? Whether reportable? Yes Yes NEETIKA TUTEJA 2024.09.03 10:10 I attest to the accuracy and integrity of this document