Bombay High Court
Usmanbhai Dawood Karadia Through ... vs Philomena Gilbert Sebastian Misquitta ... on 15 January, 2024
Author: R.I. Chagla
Bench: R.I. Chagla
17-EXA-1916-23.doc
Sharayu Khot.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
EXECUTION APPLICATION NO. 1916 OF 2023
WITH
INTERIM APPLICATION (L) NO. 39969 OF 2022
WITH
INTERIM APPLICATION (L) NO. 26907 OF 2023
IN
EXECUTION APPLICATION NO. 1916 OF 2023
Usmanbhai Dawood Karadia & Anr. ...Decree-Holders /
Plaintiffs
Versus
Philomena Gilbert Sebastian Misquitta & ...Judgment
Anr. Debtors/Defendants
----------
Mr. Nazim Sultan Saifi for the Plaintiffs.
----------
CORAM : R.I. CHAGLA J
DATE : 15 January 2024
ORDER :
1. Matter has been referred to this Court by the
Prothonotary & Senior Master of this Court vide order dated 31st
October 2023.
17-EXA-1916-23.doc
2. An office objection has been raised by the Scrutiny
Officer on the ground that the Applicants were seeking execution of
order dated 12th August 1996 and therefore, it was barred by
limitation. The learned Advocate was directed to seek appropriate
orders from this Court.
3. The learned Prothonotary & Senior Master of this Court
has noted the submissions of the learned Advocate for the Judgment
Creditors that the decree was settled/drawn up on 17th March 2017.
The limitation for execution of decree under Article 136 is 12 years
when the decree or order becomes enforceable.
4. Further, under Rule 300 of the Bombay High Court
(Original Side) Rules, 1980, it is provided for drawing up of decrees
and orders passed by this Court.
5. The execution sought for by the Judgment Creditors is
part of the Consent Terms namely Clauses 3, 4 and 5 thereof by
which Consent Terms the Suit was decreed and disposed of by order
dated 12th August 1996.
17-EXA-1916-23.doc
6. The Prothonotary & Senior Master of this Court has
referred the issue of limitation for filing the above Execution
Application to this Court.
7. I have perused the order of the the Prothonotary &
Senior Master of this Court dated 31st October 2023. Further I have
perused the order dated 12th August 1996 which had taken the
Consent Terms on record and disposed of and decreed the Suit in
terms of the Consent Terms. The certified true copy of the said order
was made available when the decree was settled on 17th March
2017.
8. Considering the provisions of Rule 300 of the Bombay
High Court (Original Side) Rules, 1980 as well as the relevant
provisions of the Limitation Act, 1963 viz. Article 136, the limitation
for execution of decree is 12 years when the decree becomes
enforceable. The period would necessarily be commenced from the
date when the decree has been settled.
9. In my view, therefore, the present Execution Application
is not barred by limitation. It has been made clear in the decision of
17-EXA-1916-23.doc
Deep Chand & Ors. Vs. Mohan Lal1 that the execution proceedings is
to enable the Decree-holder to obtain the fruits of the decree. The
decree should not be made futile on mere technicalities. A fair
consideration is required to be given and a liberal approach is to be
adopted.
10. In my view, considering the relevant provisions,
the objection raised by the Scrutiny Officer that the Execution
Application is barred by limitation, is dispensed with. The Execution
Application shall be taken on record.
[R.I. CHAGLA J.]
1 2000(4) TMI 851 SC
