Union Of India vs Ramakant Ramdas Bagul And 3 Others
2023 Latest Caselaw 1757 Bom

                                                                       6-CHS-27-19.doc

Sharayu Khot.
                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      ORDINARY ORIGINAL CIVIL JURISDICTION

                          CHAMBER SUMMONS NO. 27 OF 2019
                                           IN
                   EXECUTION APPLICATION (L) NO. 1283 OF 2016


      Union of India                                      ...Applicant/Decree
                                                          Holder

                Versus

      R.K. Bagul (since deceased) & Ors.                  ...Judgment Debtors

                                        ----------
      Mr. Yogeshwar S. Bhate a/w Mr. D.P. Singh for the Applicant.
      Mr. Avinash V. Joshi for the Defendants.
                                        ----------

                                       CORAM : R.I. CHAGLA J

                                         DATE        : 7 February 2023

      ORDER :

1. By this Chamber Summons, the Applicant/Decree Holder

has sought dispensation of the objection taken by the office of this

Court with regard of limitation in filing the Execution Application.

2. The Execution Application is from a decree dated 5th

October 2002 which had been drawn up by the learned Civil Judge

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Senior Division, Nashik ("CJSD, Nashik") on 19th October 2002. The

decree is in terms of an award passed by the learned Arbitrator in the

year 1997 and thereafter, submitted before the C.J.S.D., Nashik for

Rule of the Court. The decree was passed in Miscellaneous Civil

Application No. 220 of 1997 filed by the learned Arbitrator before

C.J.S.D., Nashik for passing decree in terms of the Award under

Section 14(2) of the Arbitration Act, 1940.

3. There are certain ancillary facts which pertain to the

demise of the original Judgment Debtor who expired on 6th July

1998 and that the Miscellaneous Civil Application No. 80 of 1998

filed by the original Judgment Debtor for setting aside the Award

dated 13th September 1997 stood abated vide Trial Court order

date 3rd April 2001. There were no steps taken to bring the legal

heirs of the original Judgment Debtor on record. However, what is

material to note is that upon the decree being drawn up by the

learned C.J.S.D., Nashik the Decree Holder had taken out a

Darkhasht being Special Darkhast No. 41 of 2004 in the Court of

C.J.S.D., Nashik. This was thereafter pursued by the

Applicant/Decree Holder in taking out the attachment Application on

28th June 2005 and distress warrant had been issued by the learned

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C.J.S.D., Nashik under Order XXI Rule 43 of the Code of Civil

Procedure, 1908.

4. It is further necessary to note that on 1st September

2008 a precept under Section 46 of the Code of Civil Procedure, 1908

had been filed by the Judgment Creditor for transferring the decree

dated 5th October 2002 to the City Civil Court, at Mumbai for

attachment of the original Judgment Debtor's Flat No. 21, Rupal CHS

Ltd., 98, Dadasaheb Phalke Road, Dadar (East), Mumbai 400 014.

5. A Writ Petition had been filed by the Judgment Debtors/

Respondents herein being Writ Petition No. 804 of 2013 before this

Court challenging the order and decree dated 5th October 2002

passed in Civil Miscellaneous Application No. 220 of 1997 and the

order dated 10th April 2012 passed in the Application taken out by

the present Judgment Debtors/Respondents herein who are the sons

of the original Judgment Debtor for declaring the decree as a nullity.

The Writ Petition No. 804 of 2013 was disposed of by this Court on

29th July 2013.

6. It is necessary to note that the Division Bench of this

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Court had remitted the matter back to the executing Court to decide

the points mentioned in paragraph 7 of the order dated 29th July

2013 by quashing and setting aside the order dated 10th April 2012

passed by the 3rd Joint C.J.S.D., Nashik. This Court had directed the

parties to maintain status quo in respect of the properties which are

the subject matter of attachment pending the decision of the Trial

Court. Thereafter, the learned C.J.S.D., Nashik by order dated 18th

February 2014 rejected the Civil Miscellaneous Application No. 80 of

1998 taken out by the original Judgment Debtor and decided all

three issues with a reasoned order and accordingly, the status quo

order was vacated.

7. On 20th November 2014, the C.J.S.D., Nashik directed

the transfer of the decree dated 5th October 2002 to the City Civil

Court, at Mumbai. The City Civil Court, at Mumbai upon holding that

it had no jurisdiction, returned back the documents to the Advocate

for the Decree Holder on 27th January 2016.

8. Thereafter, the present Execution Application was filed

and though the Execution Application had initially been rejected for

non removal of office objections on 28th September 2016, the

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Application was restored on 19th September 2017. This Court by

order dated 10th January 2018 granted liberty to the Judgment

Creditors to take out the present Chamber Summons. It is necessary

to note that in the said Order of the learned Single Judge (Coram:

G.S. Patel, J.) the submission of the learned Counsel for the Applicant

that because the Darkhast proceedings were initiated in 2004 in the

Court of C.J.S.D., Nashik, no question of limitation arises was

recorded. However, the learned Single Judge found it difficult to

accept the arguments at the prima facie stage in the manner in which

it was placed as there was no material setting up in an orderly

fashion explaining the narrative and sequence of events.

9. Accordingly, the Applicant/Decree Holder has taken out

the present Chamber Summons and has presented the facts prior to

the filing of the Execution Application, which in my view, has now

been done in an orderly fashion explaining the narrative and

sequence of events.

10. The learned Counsel appearing for the Applicant/

Decree Holder has submitted that the objection taken by the office of

this Court on limitation is misconceived. This in view of the original

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Execution Application viz. Special Darkhast No. 41 of 2004 having

been filed within a period of 12 years from the decree dated 5th

October 2002, which had been drawn up on 19th October 2002. He

has referred to various events after filing of Special Darkhast No. 41

of 2004 and submitted that this was merely a continuity of the

original Execution Application. He has submitted that the decree had

also been challenged on the ground that it was a nullity which had

thereafter, been rejected. A precept had been issued on 1st

September 2008 and the execution proceedings were transferred to

the City Civil Court insofar as the immovable property situated in

Mumbai is concerned. Further, upon the City Civil Court holding that

it had no jurisdiction, the papers were submitted back to the

Advocates of the Decree Holder who had then filed the present

Execution Application. He has submitted that the present Execution

Application is also in continuity of the Special Darkhast No. 41 of

2004, being the original Execution Application filed for execution of

the very same decree dated 5th October 2002.

11. The learned Counsel appearing for the Applicant/

Decree holder has relied upon the decision of the Supreme Court in

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Krishna Gopal Chawla & Ors. Vs. State of U.P. & Anr.1 wherein it has

been held that an Appeal preferred from the decree, unless the

earlier decree gets merged in the decree passed by the Appellate

Court, the earlier Execution Application is maintainable and there is

no need to file a fresh Execution Application. The Supreme Court had

considered in the facts and circumstances of that case that the Appeal

had been filed challenging the original Award and the Supreme Court

had stayed the execution proceedings pending the disposal of the

Appeal. After disposal of the Appeal, there was no impediment or bar

to continue the execution proceedings on application moved by the

Appellants to proceed with the execution.

12. The learned Counsel appearing for the Applicant/

Decree holder has further placed reliance upon the decision of Punjab

and Haryana High Court in case of Sita Ram Vs. Mahadi & Ors.2,

wherein it was held that the period of limitation would not

commence from the date of the original decree but from the

appellate decree, inspite of there being no stay granted during the

course of the Appeal. This in view of the Appeal being considered as

1 (2001)9 SCC 694 2 2006 SCC OnLine P&H 379

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a continuation of the Suit.

13. The learned Counsel appearing for the Applicant/

Decree Holder has accordingly, submitted that in the present case,

there is no issue of the present original Execution Application being

barred by limitation as it is in continuation of the original Execution

Application which has been filed within time. Merely because the

present Execution Application has been filed in this Court with

respect to the immovable property situated in Mumbai, that does not

mean that the original Execution Application filed within time is not

to be taken into consideration.

14. In counter of these submissions, the learned

Counsel appearing for the Respondents/Judgment Debtors has

submitted that the initiation of the Darkhast proceedings being

Special Darkhast No. 41 of 2004 in the Court of C.J.S.D., Nashik does

not save limitation as the limitation would have to be considered

from the purview of the present Execution Application, which has

been filed beyond the period of 12 years from passing of the decree.

He has submitted that the precept 2008 would also have to be taken

into consideration and that the Applicant/Decree holder failed and

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neglected to follow up the matter and accordingly, the

Applicant/Decree holder cannot be permitted to take advantage of its

own wrong.

15. Learned Counsel for the Respondents/Judgment

Debtors has relied upon Article 136 of the Limitation Act which

provides for execution of any decree for which the period of

limitation is of 12 years, from the decree or order becoming

enforceable. He has placed reliance upon the decision of the Kerala

High Court in case of Abdul Gafoor s/o Moideen Vs. The Chairman,

Saktan Kuries & Loans (P) Ltd., Trichur 3. He has submitted that in

that case there was an Application for transfer of decree for execution

to the transferee Court which the Court considered is not an

Application for execution. The Application for execution has to be

filed in the transferee Court subject to the period prescribed under

Article 136 of the Limitation Act, 1963 i.e. within a period of 12

years from the decree becoming enforceable failing which the decree

would become inexecutable. Decree Holder is also required under the

Rules of the High Court of Kerala to submit application for execution

within a period of six months from the date of receipt of the decree

3 AIR 2003 Ker 235

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by the transferee Court. However, this cannot override the provisions

of the Limitation Act, 1963 i.e. Article 136 of the Act, which is a

Central Statute enacted by Parliament. Accordingly, the Application

for execution admittedly filed beyond 12 years as prescribed under

Article 136 of the Limited Act was dismissed as not maintainable.

16. Learned Counsel appearing for the

Respondents/Judgment Debtors has also placed reliance upon the

decision of the Supreme Court in Ram Bachan Rai & Ors. Vs. Ram

Udar Rai & Ors.4, wherein the Supreme Court has held that where no

stay has been granted, an Application for execution cannot be

considered with effect from the date of dismissal of the Civil Revision

Application which had been filed in that case. It was held that the

limitation started running from the date of the decree and not from

the dismissal of the Civil Revision Application. This was by applying

Section 136 of the Limitation Act.

17. Learned Counsel appearing for the

Respondents/Judgment Debtors has also relied upon the decision of

4 (2006) 9 SCC 446

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the Supreme Court in Ratansingh Vs. Vijay Singh & Ors.5, wherein

the Supreme Court had held that in the facts and circumstances of

that case dismissal of the application for condonation of delay would

not amount to a decree and therefore, dismissal of an appeal as time

barred would also not be a decree. The decree became enforceable

from the Appellate Court's order only when the order/decree

supersedes the decree of the Trial Court. Hence, the Respondents'

second appeal getting dismissed solely on the ground of delay did not

amount to a decree and/or extend the limitation for filing the

Execution Application.

18. Learned Counsel appearing for the

Respondents/Judgment Debtors has accordingly, submitted that in

the facts of the present case, the Execution Application having been

filed in the year 2016 i.e. beyond the 12 years from the passing of the

decree which was in the year 2002, the Execution Application would

clearly be barred by limitation. He has submitted that there has been

no stay of the decree other than a stay for a period of six and half

months by order dated 29th July 2013 passed by this Court in Writ

Petition No. 804 of 2013. Thus, the present Execution Application

5 (2001) 1 SCC 469

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would clearly be barred by limitation.

19. Learned Counsel appearing for the Respondents

has further submitted that the properties in respect of which

execution has been sought by the present Execution Application is in

Mumbai and that original Execution Application which had been filed

in 2004 concerned properties in Nashik cannot be taken into account

for saving the period of limitation.

20. Having considered the averments, in my view, the

original decree having been passed on 5th October 2002 and drawn

up by the C.J.S.D., Nashik on 19th October 2002 was the subject

matter of Special Darkhast No. 41 of 2004 (original Execution

Application) in the Court of C.J.S.D., Nashik by which execution of

the decree had been sought. The proceedings which have been filed

pursuant to the original Execution Application were in continuation

thereof and in execution of the same decree. There had been a

challenge by the Judgment Debtors to the decree on the ground of it

being a nullity in Writ Petition No. 804 of 2013 filed in this Court.

Further, the precept which had been filed on 1st September 2008 for

transferring the decree dated 5th October 2002 to the City Civil

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Court for attachment of the immovable property at Mumbai was in

continuation of the execution of the original decree.

21. It is necessary to note that by the order dated 29th

July 2013 passed in Writ Petition No. 804 of 2013, this Court had

considered the issues inter alia with regard to the decree being a

nullity as well as the validity of the Miscellaneous Civil Application

No. 80 of 1998 taken out by the original Judgment Debtor on the

grounds of limitation and whether it amounts to an objection filed to

the Award passed by the learned Arbitrator. This Court considered it

appropriate to set aside the order dated 10th April 2012 passed by

the C.J.S.D., Nashik rejecting the Application taken out by the

present Judgment Debtors being the sons of the original Judgment

Debtor declaring the decree as a nullity and remanded the matter

back to the Court of C.J.S.D., Nashik to decide the issue. This Court

had directed the parties to maintain status quo in respect of the

properties which was the subject matter of the attachment pending

the decision of the Trial Court.

22. The Status quo in respect of the attachment of the

properties had operated till 18th February 2014, when the learned

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C.J.S.D., Nashik had rejected the Miscellaneous Civil Application No.

80 of 1998 taken out by the Original Judgment Debtors and decided

the issues with a reasoned order. It has been the contention on behalf

of the Respondents/Judgment Debtors that the status quo granted by

the Appellate Court operated only for a few months and that cannot

be considered to save limitation with respect to the present Execution

Application filed in this Court. This submission looses sight of the fact

that the status quo was not in respect of the original decree, but in

respect of the attachment of the immovable properties and for

execution of the decree there had already been an Execution

Application filed viz. Special Darkhast No. 41 of 2004. Further, the

contention on behalf of the Respondents/Judgment Debtors that the

filing of precept under Section 46 of the the Code of Civil Procedure,

1908 for transferring the decree dated 5th October 2002 to the City

Civil Court cannot be treated as an Application for execution, thus,

saving limitation in respect of the present Execution Application, also

looses sight of the original proceedings for execution viz. Special

Darkhast No. 41 of 2004, which is for execution of the very same

decree. Thus, the decision of the Kerala High Court in Abdul Gafoor

s/o Moideen (supra) where the Application for transfer of the decree

was considered to be not an Application for execution, relied upon by

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the learned Counsel for the Respondents/Judgment Debtors, is

inapplicable in the present case as there was already an Execution

Application prior to issuance of precept.

23. In my considered view, the present Execution

Application is in continuation of the original proceedings taken out

by the Decree Holder for execution of the decree under Special

Darkhast No. 41 of 2004 before the C.J.S.D., Nashik. The present

Execution Application has been taken out merely for the purpose of

attachment of the property situated in Mumbai. The fact of there

being an original Execution Application for execution of the very

same decree filed within limitation of 12 years cannot be ignored.

Further, it was by virtue of the order of the City Civil Court that the

papers had been returned back to the Advocates on 27th January

2016 on the ground that it had no jurisdiction which order was

subsequent to the proceedings being transferred by the C.J.S.D.,

Nashik to the City Civil Court vide order dated 20th November 2014.

24. The decision relied upon by the learned Counsel

for the Respondents/Judgment Debtors in Ratansingh (supra) is a

decision where the Supreme Court held that the Execution

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Application was clearly beyond 12 years from the decree and that

dismissal of the Appeal as time barred would not amount to a decree

to save limitation. In the facts of that case, there was no original

Execution Application having been filed from the decree within

limitation as there is in the present case. It was in light of these facts

that the Supreme Court considered the issue as to the starting point

of limitation for filing of the Execution Application and only where

the decree merged with the appellate decree then in that case, the

limitation would commenced from the appellate decree. This case is

clearly distinguishable on facts. This would also be the case of Ram

Bachan Rai (supra) relied upon by the learned Counsel for the

Respondents/Judgment Debtors. In that case also there was no

original Execution Application for execution of the decree and the

Execution Application was clearly beyond 12 years from the decree

and thus, barred by limitation. The dismissal of the Civil Revision

Application did not save limitation.

25. The decision of the Supreme Court in Krishna

Gopal Chawla (supra) relied upon on behalf of the Applicant/Decree

Holder is required to be taken note of and particularly, considering

that the Supreme Court had considered the subsequent proceedings

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viz. the Appeal preferred from the decree and in that context held

that unless the original decree gets merged with the Appellate

decree, the earlier Execution Application is maintainable and that

there is no need to file a fresh Execution Application. The execution

proceedings would be continued after dismissal of the Appeal by the

Court confirming the decree passed without any alteration.

26. In the present case, the proceedings which have

been instituted after filing of the original Execution Application

before C.J.S.D., Nashik are required to be taken into account and the

proceedings in execution thereafter are in continuation of the

original Execution Application. This would equally apply to the

transfer of the proceedings initially to the City Civil Court and

thereafter, upon the City Civil Court holding that it had no

jurisdiction, the present Execution Application filed in this Court.

Thus, in my view, the present Execution Application is in continuity

of the original Execution Application and by virtue of the original

Execution Application having been filed by way of Special Darkhast

No. 41 of 2004 within the period of 12 years from the date of the

decree under Article 136 of the Limitation Act, 1963, the present

Execution Application will not be barred by limitation.

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27. Accordingly, the objection taken by the office of

this Court regarding limitation is dispensed with and the office shall

accept the filing of the Execution Application.

28. Chamber Summons is accordingly, disposed of.

[R.I. CHAGLA J.]