Bivas Pattanayak, J. :-
d) Leave be given to the application herein to add Investor Education &
Protection Fund (IEPF) Authority as a party to the execution case.
e) Leave be given to the applicant herein to include the Official Liquidator,
High Court, Madhya Pradesh as a party to the proceedings in place and
stead of Judgement Debtor No.1.
f) An interim order in terms of prayers made hereinabove;
g) Such further and/or other orders be passed and/or direction or
directions be given as this Hon'ble Court may deem fit and proper."
2. The execution proceedings being EC 278 of 2022 has been filed for
execution of an ex parte judgment and decree dated 30th July, 2007 passed by
this court in Suit No. 258 of 1992.
3. The applicant-judgment debtor no.2 contends as follows.
(i) The judgment debtor no.2 allotted partly convertible debentures to
judgment debtor no.1 in the first series on 22nd February, 1989. The number of
debentures allotted was 1225 against 7000 shares held by the judgment debtor
no.1. The said 7000 shares were comprised of 4000 normal shares and 3000
bonus shares. The partly convertible debentures numbering 1225 were
thereafter converted into shares being 1225 on 31st March, 1989.
(ii) The judgment debtor no.1 sold its entire holding of 4,80,875/- partly
convertible debentures which it received from judgment debtor no.2 along with
1225 which were allotted as part of series 1, to Citi Bank N.A, Bombay under
Folio No. 115441 dated 17th August, 1989.
(iii) The judgment debtor no.2 had never allotted any partly convertible
debentures in the second series to the judgment debtor no.1 as alleged by the
decree holder.
(iv) On the date of filing of suit on 30th March, 1992 by the decree-holder, the
judgment debtor no.1 held 2,63,112 having face value of Rs. 10/- each. On the
date of passing of order for winding up on 4th May, 1998 by the Gwalior Bench
of the Madhya Pradesh High Court the judgment debtor no.1 held 100 shares
having a face value of Rs.10/- each. Lastly, on the date of judgment and decree
passed by this Court on 30th July, 2007, the number of shares held by judgment
debtor no.1 remained 100 shares with the face value of Rs. 10/- each. The said
100 shares were further divided into 500 shares with the face value of Rs. 2/-
each as on 17th October, 2016. The said 500 shares had been transferred to the
Investor Education & Protection Fund Authority (in short 'IEPF') in terms of
Section 124 of the Companies Act, 2013 (hereinafter referred to as the 'Act of
2013').
(v) The documents clearly demonstrate the number of shares being held by the
judgment debtor no.1 in the judgment debtor no.2-company and that the
judgment debtor no.2 in no way can allot shares contrary to the records
available in electronic form.
(vi) The judgment debtor no.1 is presently under liquidation in terms of the
order dated 4th May, 1998 of the Hon'ble High Court of Madhya Pradesh,
Gwalior Bench and all assets of the judgment debtor no.1 are under the aegis of
the Official liquidator who was not made a party in the suit and, therefore, the
suit suffered from non-joinder of necessary parties.
(vii) Although the suit was filed prior to winding up but the decree was
passed in the year 2007 after the order of the winding up was passed. However,
no leave was sought for under Section 446 of the Companies Act, 1956 (in short
'Act of 1956'). The judgment debtor no.2 did not contest or refute the claims
made by the decree holder-plaintiff since there are no material prayers against
judgment debtor no.2 and the dispute was inter se between other parties in the
suit. The judgment debtor no.2 can in no way allot shares and/or debentures to
the decree holder sans any directions and/or orders passed by any Court of
Law. The decree passed by this Court on 30th July, 2007 is non-est and needs to
be set aside primarily for non-compliance of Section 446 of the Act of 1956.
4. The decree holder keenly contested the application by filing affidavit-in-
opposition with the following contentions. The judgment debtor nos. 1 and 2
were fully aware of the pendency of the suit and chose not to contest and
challenge the same and as such the issues raised at this stage cannot be
decided in execution proceedings for the simple reason that the decree cannot
be questioned in an execution proceeding. The decree has not been appealed
and as such it has reached finality and it is binding on all parties of the suit. In
an execution proceeding, the Hon'ble Court may not go behind the decree.
Further no question under Section 47 of the Civil Procedure Code (hereinafter
referred to the 'Code') arises in the present application. The application is
barred by law of limitation. Accordingly, the application needs to be dismissed
in limini.
5. Mr. Pratik Ghose, learned advocate appearing for applicant-judgment
debtor no.2 submitted that on 4th May, 1998 order of winding up of judgment
debtor no.1 was passed by the Hon'ble Madhya Pradesh High Court, Gwalior
Bench and in terms of the provisions contained in Section 124 of the Act of
2013, 500 shares of judgment debtor no.1 have been transferred to the IEPF.
With the leave of this Hon'ble Court, only 500 shares may be transferred to the
decree holder since judgment debtor no.2 after such winding up cannot allot
shares contrary to the records available. Though at the time when the suit was
instituted there was no order of winding up passed by the Hon'ble High Court
of Madhya Pradesh, Gwalior Bench, but at the time of passing of the decree in
the year 2007, the judgment debtor no.1 was admitted into the winding up and
liquidation. The decree holder-plaintiff did not seek leave under Section 446 of
the Act of 1956 to proceed with the hearing of the suit and thus the decree
passed by this Court during subsistence of the order of winding up is non-est in
the eye of law and needs to be set aside on such ground. He seeks for
appropriate orders in terms of prayers made in the application.
6. On the contrary, Mr. Jishnu Chowdhury, learned advocate for the decree
holder submitted at the outset that it is settled proposition of law that the
executing Court cannot go behind the decree unless it is shown that it is passed
by the Court having inherent lack of jurisdiction which would make it a nullity.
There is nothing on record to suggest that this Hon'ble Court lacked inherent
jurisdiction to pass the decree. To buttress his contentions, he relied on the
decisions of Hon'ble Supreme Court passed in Bhawarlal Bhandari versus
Universal Heavy Mechanical Lifting Enterprises1 and Rafique Bibi
(Dead) by LRs. versus Sayed Waliuddin (Dead) by LRs. and Others2.
Further the contentions raised by applicant-judgement debtor no.2 in the
present application are beyond the scope of Section 47 of the Code. Moreover,
the decree-holder issued letter on 22nd February, 2008 to judgment debtor no.2
to comply the decree dated 30th July, 2007 and was also requested to rectify the
debenture and/or shares Register of judgement debtor no.1 arising out of 'first'
and 'second' series of partly convertible debentures and to insert the name of
the decree holder in place of judgment debtor no.1 in shares and debentures
1 (1999) 1 SCC 558
2 (2004) 1 SCC 287
Register pursuant to the aforesaid decree passed by this Court. Though time
and again the judgment debtor no.2 was intimated of the decree but it failed to
respond in compliance to the decree passed by this Court. Thus, the present
application is hopelessly barred under Article 137 of the Limitation Act since it
has not been filed within the statutory period of three years from the date
when right to apply accrued. He further indicated that in the application the
applicant-judgement debtor no.2 has not made out any grounds for condonation
of delay in filing the application belatedly. In light of his aforesaid submissions,
he prayed for dismissal of the application.
7. In reply, Mr. Ghose, learned advocate for the judgment debtor no.2
submitted that the decree holder himself did not comply with the order of the
court directing for depositing an amount of Rs.1,50,048/- within a reasonable
period and only in the year 2024 the decree-holder sought for leave of the court
to deposit the said amount. The argument advanced on behalf of the decree-
holder that since no appeal has been preferred against the judgment and
decree, hence the application is barred by limitation is actually self-deprecating
inasmuch as the execution has been held by this Court to be within limitation
by order dated 28th March, 2024 passed in GA-COM 1 of 2024. Thus the
present application is within the period of limitation from date of such order.
8. Upon hearing the learned advocates representing the respective parties
following issues have fallen for consideration in the present application:
(i) Whether the decree passed by this Court is a nullity since no leave
under Section 446 of the Act 1956 to proceed with the hearing of the suit
was sought for from the Hon'ble High Court of Madhya Pradesh, Gwalior
Bench before which the proceedings for winding up and liquidation of
judgement debtor no.1-Jiyajeerao Cotton Mills Limited was pending?
(ii) Whether the contention raised by the applicant-judgement debtor no.2
in the present application is beyond the scope of Section 47 of the Code?
(iii) Whether the executing court can go behind such a decree?
(iv) Whether the present application is barred by limitation under Article
137 of the Limitation Act?
Issue No.1: Whether the decree passed by this Court is a nullity since no leave
under Section 446 of the Act 1956 to proceed with the hearing of the suit was
sought for from the Hon'ble High Court of Madhya Pradesh, Gwalior Bench
before which the proceedings for winding up and liquidation of judgement
debtor no.1 was pending?
9. It is the primary contention of the applicant-judgment debtor no.2 that
the decree passed by this court dated 30th July, 2007 is non-est and needs to be
set aside primarily for non-compliance of Section 446 of Act of 1956. In order to
appreciate the above contention, it would be apposite to reproduce the relevant
provisions contained in Section 446 of the Act of 1956 as hereunder:
"446. Suits stayed on winding up order .-(1) When a winding up order
has been made or the Official Liquidator has been appointed as provisional
Liquidator, no suit or other legal proceeding shall be commenced, or if
pending at the date of the winding up order, shall be proceeded with against
the company, except by leave of the Tribunal and subject to such terms as the
Tribunal may impose.
(2) The Tribunal shall, notwithstanding anything contained in any other
law for the time being in force, have jurisdiction to entertain, or dispose of-
(a) any suit or proceeding by or against the company;
(b) any claim made by or against the company (including claims by or
against any of its branches in India);
(c) any application made under section 391 by or in respect of the
company;
(d) any question of priorities or any other question whatsoever, whether of
law or fact, which may relate to or arise in course of the winding up of
the company;
whether such suit or proceeding has been instituted, or is instituted, or
such claim or question has arisen or arises or such application has been
made or is made before or after the order for the winding up of the
company, or before or after the commencement of the Companies
(Amendment) Act, 1960.
(3) x x x
(4) Nothing in sub-section (1) or sub-section (3) shall apply to any
proceeding pending in appeal before the Supreme Court or a High Court."
9.1. The aforementioned provisions contains that when a winding up order has
been made or the Official Liquidator has been appointed as provisional
Liquidator, no suit or other legal proceeding shall be commenced, or if pending
at the date of the winding up order, shall be proceeded with, against the
company, except by leave of the Court. It is not in dispute that leave under 446
of the Act of 1956 was not obtained by the decree-holder-plaintiff from the
Hon'ble Court before which the petition for winding up and liquidation of
judgement debtor no.1-Jiyajeerao Cotton Mills Limited was pending. The
question to be examined whether in the absence of such leave the decree passed
by this Court in the suit is a nullity. Similar question fell for consideration
before this Hon'ble Court in Roopnarain Ramchandran Private Ltd versus
Brahmapootra Tea Co. (India) Ltd. And Another3 wherein this Hon'ble
Court has held as follows:
"13. The only contention on behalf of the applicant was that the decree was a
ity by reason of the court having no jurisdiction to pass the decree and by
reason of the appointment of the Provisional Liquidator. I am unable to
accept the contention. The court has full jurisdiction to entertain suits and to
pass decrees where the company is a party to the suit and such company is in
the course of liquidation. It is true that the provisions in the Companies Act
and the rules thereunder contemplate that if the suit is pending on the date of
die presentation of the winding up petition or on the date of the winding up
order the suit or proceeding is not to be continued except by leave of the court.
Leave to proceed with the suit in such circumstances is not similar to leave
under cl. 12 of the Letters Patent. In the absence of leave under cl. 12 the
court has no jurisdiction. The existence of jurisdiction depends upon leave
under cl. 12. In suit or proceeding against the company in the course of
liquidation the absence of leave to continue or proceed does not, in my
3 AIR 1962 CAL 192
opinion, deprive the court of the jurisdiction to pass any decree. The court has
jurisdiction to hear such suits. The existence of jurisdiction does not depend
upon any such leave. It is the court which hears the suit, also confers leave to
proceed with the suit when leave is asked for. If leave has not been obtained,
the decree does not become a ity for lack of jurisdiction. Leave is asked for to
continue the suit. In the present case the plaintiff was not aware of any
winding up order and therefore could not ask for any leave. In my opinion the
absence of leave is not fatal as to render the decree a ity. In appropriate case
leave can be given even retrospectively if circumstances of the case justify."
9.2. Bearing in mind the aforesaid proposition, it manifests that even if leave
has not been obtained by the decree-holder-plaintiff under the provisions of
Section 446 of Act of 1956, the decree does not become a nullity for lack of
jurisdiction. In suit or proceeding against the company in the course of
liquidation the absence of leave to continue or proceed does not deprive the
court of the jurisdiction to pass any decree. The court has jurisdiction to hear
such suits. The existence of jurisdiction does not depend upon any such leave.
The absence of leave to continue or proceed with the suit is not fatal so as to
render the decree a nullity. Therefore, the contention of the applicant-judgment
debtor no.2 that the decree passed by this court on 30th July, 2007 is non-est
and should be set aside primarily on the ground of non-compliance of Section
446 of the Act of 1956 is not tenable and is thus unacceptable.
Issue No.2: Whether the contention raised by the applicant-judgement debtor
no.2 in the present application is beyond the scope of Section 47 of the Code?
10. In order to decide the aforesaid issue, it would be profitable to reproduce
relevant portion of the decree passed by this Court on 30th July, 2007 in Suit
No. 258 of 1992 (Prem Kumar Chowdhury versus Jiyajeerao Cotton Mills
Limited & Ors.) as hereunder:
"This cause coming on this day i.e. the Thirteenth day of July, Two thousand
Seven for final disposal before the Hon'ble Prabuddha Sankar Banerjee, one
of the Judges of this court in the presence of the Advocate for the plaintiff
Prem Kumar Chowdhury (defendant no. 1 Jiyajeerao Cotton Mills Ltd. and
no. 2 Grasim Industries Limited not appearing either through its
representatives or by advocates) and sufficient court fees having been paid
and it appears that the defendant no 3 Citi Bank entered appearance but did
not contest the suit and upon hearing the evidence given in this suit it is
declared that the plaintiff Prem Kumar Chowdhury was and be and he is
hereby entitled to the partly convertible debentures numbering 1225 (one
thousand two hundred twenty five) in respect of the 'first' series and
numbering 887 (eight hundred eighty seven) in respect of the 'second' series
and the same is ordered and decreed accordingly and it is further declared
that the plaintiff Prem Kumar Chowdhury was and be and he is hereby
entitled to the shares numbers 1225 in respect of first and numbers 887 (eight
hundred eighty seven) in respect of second series, now stands converted in the
capital of the company and the same is ordered and decreed accordingly and
upon and/or subject to payment by the plaintiff Prem Kumar Chowdhury to
the defendant no.1 Jiyajeerao Cotton Mills Ltd. It is further ordered and
decreed that the defendant no. l shall return the convertible debentures
numbering 2112 (two thousand one hundred twelve) in aggregate and/or
shares numbering 2112 (two thousand one hundred twelve) in the capital of
defendant no. 2 Grasim Industries Limited. And it is further ordered and
decreed that a perpetual injunction be and the same is hereby granted
restraining the defendant no. 1 Jiyajeerao Cotton Mills Ltd. and/or its
servants and agents to exercise voting rights in respect of Two thousand one
hundred and twelve (2112) equity shares in aggregate arising out of two
several series of partly convertible debentures and it is further ordered and
decreed that the application forms, allotment notice and debentures and/or
shares scripts allotted by defendant no.2 Grasim Industries Ltd. to defendant
no.1 Jiyajeerao Cotton Mills Ltd. in respect of the aforesaid two series 'first'
and 'second' of debentures and/or shares, now converted be and the same are
hereby treated as cancelled and be delivered up and the defendant no. 2
Grasim Industries Ltd. is hereby directed to rectify the debenture and/or
share register of defendant no. 2 Grasim Industries Ltd. arising out the said
'first' and 'second' series of partly convertible debentures and the same is
ordered accordingly and the defendant no. 2 Grasim Industries Ltd is hereby
directed to insert the names of the plaintiff Prem Kumar Chowdhury in place
and stead of defendant no.1 Jiyajeerao Cotton Mills Ltd. in the shares and
debenture register of the company subject to payment of Rupees one lakh fifty
thousand forty eight only to defendant no.1 Jiyajeerao Cotton Mills Ltd. being
the price paid by the defendant no.1 Jiyajeerao Cotton Mills Ltd. to the
defendant no. 2 Grasim Industries Ltd. and the same is further ordered
accordingly and it is further ordered and decreed that the defendant no. 1
Jiyajeerao Cotton Mills Ltd. and no.2 Grasim Industries Ltd. do pay to the
plaintiff Prem Kumar Chowdhury the cost of this suit (to be taxed by the
Taxing officer of this court) and it is further ordered that the defendant no. 1
Jiyajeerao Cotton Mills Ltd. and no. 2 Grasim Industries Ltd. do comply with
this order within three months from the date hereof failing which the plaintiff
Prem Kumar Chowdhury will be at liberty to proceed as per Law."
10.1. Upon cursory going through the aforesaid decree it manifests that it is
recorded in the decree that the plaintiff Prem Kumar Chowdhury is entitled to
the partly convertible debentures numbering 1225 (one thousand two hundred
twenty five) in respect of the 'first' series and numbering 887 (eight hundred
eighty seven) in respect of the 'second' series and is also entitled to the shares
numbers 1225 in respect of 'first' and numbers 887 (eight hundred eighty
seven) in respect of 'second' series, now stands converted in the capital of the
company and upon and/or subject to payment by the plaintiff Prem Kumar
Chowdhury to the defendant no.1 Jiyajeerao Cotton Mills Ltd.
10.2. The applicant-judgment debtor no.2 contends that judgement debtor no.1-
Jiyajeerao Cotton Mills Limited moved application under Section 439 of Act of
1956 for winding up before the Gwalior Bench of the Madhya Pradesh High
Court and on the date of passing of order for winding up on 4th May, 1998 the
judgment debtor no.1 held 100 shares having a face value of Rs.10/- each. and
upon division of those shares, 500 numbers of shares have been transferred to
IEPF and the judgment debtor no.2 in no way can allot shares contrary to the
records available in electronic form. By the present application the applicant-
judgment debtor no.2, in the alternative, has sought liberty to transfer only the
shares lying with IEPF. The aforesaid fact that the judgment debtor no.1 was
holding only 100 shares having a face value of Rs.10/- each on the date of
passing of order for winding up was well within the knowledge of the applicant-
judgement debtor no.2 when the decree was passed in the suit but admittedly it
chose not to contest or refute the claim of the plaintiffs.
10.3. Now the question arises whether a party who omits to raise an issue, can
raise such issue under Section 47 of the Code in an execution proceeding. For
proficiency in discussion Section 47 of the Code is reproduced hereunder:
"47. Questions to be determined by the Court executing decree.-(1)
All questions arising between the parties to the suit in which the decree was
passed, or their representatives, and relating to the execution, discharge or
satisfaction of the decree, shall be determined by the Court executing the
decree and not by a separate suit.
(2) * * *
(3) Where a question arises as to whether any person is or is not the
representative of a party, such question shall, for the purposes of this section,
be determined by the Court.
Explanation I.-For the purposes of this section, a plaintiff whose suit has
been dismissed and a defendant against whom a suit has been dismissed are
parties to the suit.
Explanation II.-(a) For the purposes of this section, a purchaser of
property at a sale in execution of a decree shall be deemed to be a party to the
suit in which the decree is passed; and
(b) all questions relating to the delivery of possession of such property to
such purchaser or his representative shall be deemed to be questions relating
to the execution, discharge or satisfaction of the decree within the meaning of
this section."
When the section refers to all questions it only means all questions which were
not raised in the suit and decided by the trial court. If a question was raised
and decided by the trial court, it is not open to the parties to raise it again at
the stage of execution. Similarly, if a question ought to have been raised by a
party before the trial court at the stage of trial and if he omits to raise it, even
then he cannot raise it under Section 47 of the Code before the executing court.
In the present case at hand, it is never in dispute that the summons of the suit
was not served upon the judgement debtor no.2. Thus, the judgement debtor
no.2 got the opportunity to raise each and every relevant issue in the suit at
the stage of trial. However, it chose not to contest or refute the claim of the
plaintiff-decree holder, meaning thereby that it omitted to raise such issues, as
is raised in the present application, which ought to have been raised by it in
the suit. As the judgement debtor no.2 omitted to raise the issues raised in the
present application, hence it cannot raise such issues in the execution
proceeding under Section 47 of the Code. At this stage it would be profitable to
reproduce relevant paragraph of the decision of Hon'ble Madras High Court
passed in A. V. Hanifa versus Salima Dhanu4 as hereunder, which laid
down similar proposition.
"9. Learned counsel for the petitioner submits that u/ S. 47(1), Civil P. C. all
questions arising between the parties to the suit in which a decree was passed,
or their representatives, and relating to the execution, discharge or
satisfaction of the decree, shall be determined by the Court executing the
decree and not by a separate suit. Learned counsel wants me to interpret this
Section as meaning that any question which is raised by a party to the suit
should be considered by the executing Court if it relates to execution,
discharge or satisfaction of the decree. Such a wide interpretation is
unsustainable. When the Section refers to all questions it only means all
questions which were not raised in the suit and decided by the trial Court. If
a question was raised before the trial Court at the stage of trial and decided
by the trial Court it is not open to the parties to raise it again at the stage of
execution. Similarly, if a question ought to have been raised by a party before
the trial Court at the stage of trial and if he omits to raise it, even then he
cannot raise it u/ S. 47 before the executing Court."
In view of the above, the applicant cannot raise issue by way of the present
application which it omitted to raise in the suit before the trial court.
10.4. Moreover, the prayer seeking liberty to transfer only shares lying in
IEPF is nothing but asking for making a new decree altogether which is not
sustainable in law. The powers of executing court are now more or less settled.
The executing court can interpret an ambiguous decree but it cannot make a
new decree. (See V.Ramaswami Aiyengar and Others versus T.N.V
Kailasa Thevar5). Further it is not in dispute that the decree has reached
finality since no appeal has been preferred. In absence of any challenge to
decree no objection can be raised in execution (See State of Punjab versus
Mohinder Singh Randhawa6). From the above discussion it appears that the
4 AIR 1992 Mad 111
5 AIR 1951 SC 189
6 AIR 1992 SC 473
contention raised by the applicant-judgment debtor no.2 and the prayers made
herein are beyond the scope of Section 47 of the Code.
Issue No.3: Whether the executing court can go behind such a decree?
11. It is already found from the discussion in the foregoing paragraphs that
the decree passed by this Court cannot be held to be nullity. The lack of
jurisdiction in the Court passing the decree must be patent on its face in order
to enable the executing Court to take cognizance of such nullity based on want
of jurisdiction, else the normal rule that an executing Court cannot go behind
the decree must prevail. It is pertinent to note that the judgment debtor no.2 in
its instant application contended that it chose not to contest or refute the
claims made by the decree holder-plaintiff in the suit since there was no
material prayers against judgment debtor no.2. Subsequent to the passing of
the ex parte decree neither any application for setting aside the ex parte decree
nor any appeal has been preferred in the Appellate Court. Thus, the decree
passed by this Court has reached its finality. A decree suffering from illegality
or irregularity of procedure cannot be termed inexecutable by the executing
Court. The remedy of a person aggrieved by such decree to have it set aside in a
duly constituted legal proceedings or by a superior Court failing which he must
obey the command of the decree. A decree passed by a Court of competent
jurisdiction cannot be denuded of its efficacy by any co-lateral attack or in
incidental proceedings. [See Rafique Bibi (Dead) (supra)]. It is settled
proposition of law that the executing Court cannot go behind the decree unless
it is shown that such decree is passed by a Court having inherent lack of
jurisdiction which would make it a nullity. Needless to mention that no case
has been made out by judgment debtor no.2 that this Hon'ble Court lacked
inherent jurisdiction to pass such decree in the suit. This Court finds substance
in the submissions of Mr. Chowdhury, learned advocate appearing for decree
holder relying on Bhawarlal Bhandari (supra) and Rafique Bibi (Dead) (supra).
Issue No.4: Whether the application is barred by limitation under Article 137
of the Limitation Act?
12. It is contended by the decree holder that the instant application is barred
under Article 137 of the Limitation Act, 1963. In order to appreciate the
aforesaid issue, it would be profitable to reproduce Article 137 of the Limitation
Act, 1963 as hereunder:
"137. Any other application for which no Three When the right to
period of limitation is provided years. apply accrues."
elsewhere in this Division.
Article 137 is a residual provision, and provides for a limitation period for any
application for which no period of limitation is provided in any of the Articles in
the Schedule to the Limitation Act. It provides for a period of limitation of 3
years from the date when the right to apply accrues. Admittedly, the applicant
judgment debtor no.2 has contended that it chose not to contest or refute the
claims made by the decree holder-plaintiff in the suit since there was no
material prayers against judgment debtor no.2, meaning thereby that despite
service of summons/notice, the applicant-judgment debtor no.2 chose not to
appear and refute the claim of the plaintiff in the suit. Be that as it may,
Section 47 of the Code provides that all questions arising between the parties
to the suit in which the decree was passed, or their representatives, and
relating to the execution, discharge or satisfaction of the decree, shall be
determined by the Court executing the decree and not by a separate suit.
Therefore, the present application raising certain issues cannot be independent
of the execution proceeding. The applicant could not have filed a separate suit
in order to raise such issues. Until and unless an execution proceeding is filed
there cannot occasion of filing application by a judgment debtor in order to
raise certain issues. Thus, the right to make application would accrue from the
date of filing of the execution case and not on a prior date. It is found from the
materials on record that the execution case is filed on 12th August, 2022 and
the present application is filed on 6th May, 2024, which is well within the
period of limitation of three years as provided under Article 137 of the
Limitation Act. In light of the above, it is found that the instant application is
not barred by limitation.
13. In view of the above discussion, the application being GA-COM 2 of 2024
is dismissed.
14. The execution case being EC 278 of 2022 be listed before the Court having
determination.
15. Urgent photostat certified copy of the order, if applied for, be given to the
parties upon compliance of all necessary legal formalities.
(Bivas Pattanayak, J.)
