S.B. Rajpal vs Kamla Wati And Ors.
1970 Latest Caselaw 184 Del

JUDGMENT

S.N. Andley, J.

(1) This civil revision is directed against the order dated February 7, 1967 of the Additional Senior Subordinate Judge (ii), Delhi, in R.C.A. No. 172 of 1966. The question raised in this Court as we'll as in the two Courts below is whether the application dated May 5, 1965 filed by the respondents for execution of their decree for eviction of the appellant was within time.

(2) The relevant facts are tabulated below :-    23-2-1956-RESPONDENTSobtained a compromise decree for eviction of the appellant. Four years time was given to the appellant to vacate the promises.  

(3) 16-2-1960-THE appellant filed an application, a few days before the expiry of the period of four years under section 47 of the Code of Civil Procedure in the executing Court raising various objections to the executability of the decree for eviction.  

(4) 23-2-1960-THE period of four years expired.  

(5) 18-2-1963-THE respondents applied for the execution of the decree, 19-2-1963-The executing Court dismissed the application on the ground that permission of the Slum Authority under the Slum Areas (Improvement and Clearance) Act, 1956 which came into force in February 1957 had not been obtained.  

(6) 31-5-1963-THE appellant's application under section 47 of the Code of Civil Procedure was dismissed by the executing Court.  

(7) 1-1-1964-THE Limitation Act, 1963 came into force.  

(8) 18-1-1964-THE appeal filed by the appellant against the dismissal of his application under section 47 of the Code of Civil Procedure was dismissed.  

(9) 23-1-1964-THE respondents applied to the Slum Authority under the said Act for permission to execue the decree.  

(10) 17-12-1964-THE Slum Authority granted permission to the respondents to execute the decree after March 31, 1965.  

(11) 5-5-1965-RESPONDENTS applied for execution of the decree.  

(12) 11-3-1966-THE executing Court dismissed the application for execution on the ground that it was barred by time.  

(13) 7-2-1967-THE Additional Senior Subordinate Judge (II), Delhi, allowed the appeal filed by the respondents holding that the application for execution was not barred by time.  

(14) It will thus be seen that the appellant has successfully thwarted the respondents' attempt to get possession of the premises in dispute even though he had been granted time at his own request not only by the trial Court but also by the Slum Authority to vacate the premises and then has' taken the plea of limitation regarding the executability of the decree.  

(15) The argument of Mr. Yogeshwar Dayal, learned counsel for the appellant, is that while the Indian Limitation Act, 1908 did not prescribe any period of limitation for making an application to the Slum Authority, the Limitation Act of 1963 does make such provision by Article 137. This Article prescribes a period of three years for the making of "any other application for which no period of limitation is provided elsewhere in this Division" from the time "when the right to apply accrues". It is contended that unlike the Limitation Act of 1908, the Limitation Act of 1963 defines by section 2(b) "application" to include a petition and, therefore, an application to the Slum Authority is covered by Article 137 of the Limitation Act, 1963. Consequently, it is argued that the application for permission of the Slum Authority filed by the respondents on January 23, 1960 was filed beyond the period of three years computing the period from February 23, 1960, as on this date, the right to apply to the Slum Authority accrued to the respondents after the expiry of the period of four years from the date of the decree. As a further consequence, it is argued that the present application for execution which was filed on May 5, 1965 had become barred by time under Article 182 of the Limitation Act, 1908, which prescribed a period of three years from the date of the decree. The attempt of the appellant, therefore, is to apply the provisions of the two Limitation Acts as it suits him. Mr. Iqbal Krishan, learned counsel for the respondents, on the other hand urges that Article 137 of the Limitation Act, 1963 does not include within its scope applications other than applications under the Code of Civil Procedure; that an application for permission to the Slum Authority is not an application under the Code' of Civil Procedure; that no period of limitation is prescribed for any such application and that the decree for eviction became executable and enforceable only on the ground of permission by the Slum Authority on December 17. 1964 and, therefore, the present application for execution was filed well within the time prescribed by Article 137 of the Limitation Act, 1963.

(16) In in re: Bombay Gas Co. Ltd. V. Gopal Bhiva it has been held while dealing with Article 181 of the Limitation Act, 1908, that this Article applied only to applications which were made under the Code of Civil Procedure in spite of the amendment of Articles 158 and 178 of this Act. A question arose whether the said decision of the Supreme Court would apply even after the coming into force of the Limitation Act, 1963 and this question was decided in the case in re Town Municipal Council, Athani v. Presiding Officer, Labour Court, Htihli an dothers, where it was observed referring to the case of of the Bombay Gas Co. Ltd. (supra) and the cases dealt with therein- "It appears to us that the view expressed by this Court in those cases must be held to be applicable, even when considering the scope and applicability of Article 137 in the new Limitation Act of 1963. The language of Article 137 is only slightly different from that of the earlier Article 181 inasmuch as, when prescribing the three years' period of limitation, the first column giving the description of the application reads as "any other application for which no period of limitation is provided elsewhere in this division." In fact, the addition of the word "other" between the words "any" and "application" would indicate that the legislature wanted to make it clear that the principle of interpretation of Article 181 on the basis of ejusdem generis should be applied when interpreting the new Article 137. This word "other" implies a reference to earlier articles, and, consequently, in interpreting this article, regard-must be had to the provisions contained in all the earlier articles. The other articles in the third division to the schedule refer to applications under the Code of Civil Procedure, with the exception of applications under the Arbitration Act and also in two cases applications under the Code of Criminal Procedure. " The effect of introduction in the third division of the Schedule of reference to applications under the Arbitration Act in the old Limitation Act has already been considered by this Court in the case of Sha Mulchand & Co. Ltd., (supra). We think that, on the same principle, it must be held that even the further alteration made in the articles contained in the third division of the schedule to the new Limitation Act containing references to applications under the Code of Criminal Procedure cannot be held to have materially altered the scope of the residuary Article 137 which deals with other applications. It is not possible to hold that the intention of the legislature was to drastically alter the scope of this article so as to include within it all applications, irrespective of the fact whether they had any reference to the Code of Civil Procedure."

(17) This decision was followed in a later decision of the Supreme Court in re: Management of the State Bank of Hyderabad v. Vasudev Anant Bhide and others. It cannot, therefore, be doubted that Article 137 of the Limitation Act, 3963. does not apply to and no limitation is prescribed for applications other than applications under the Code of Civil Procedure.

(18) The short question, therefore, is whether an application to the Slum Authority under the Slum Areas (Improvement and Clearance) Act, 1956 can be said to be an application under the Code of Civil Procedure. The answer must be in the negative because only certain powers exercisable by a civil court while trying a suit under the Code of Civil Procedure, 1908. have been conferred on the Slum Authority by sub-section (2) of section 18 of the said Act. The application to the Slum Authority is under this Act and cannot be said to be an application under the Code of Civil Procedure. It, A therefore, follows that no period of limitation is prescribed even by the Limitation Act, 1963 lor an application turn permission to the Slum Authority and the application for permission to the Slum Authority which was made in the preseat case on January 23, 1964, cannot be said to be barred by time under Article 137 of the Limitation Act, J 963.

(19) The result would be that the decree obtained by the respondents would become executable and enforceable only when permission was granted by the Slum Authority on December 17, 1964. The appheation for execution tiled on May 5, 1965 after the coming into force of the Limitation Act, 1963 will be governed by the period of limitation prescribed by Article 136 of this Act which Article provides a period of 12 years from the time when, inter alia, the decree becomes enforceable. This conclusion is supported by a Division Bench decision of this Court reported in 1967 (3) Delhi Law Times 79 in re : Munshi v. Abdul Qadeer and others where it was held that by virtue of the provisions of section 19 of the Slum Act, the decree-holder is disentitled, to execute the decree or order for eviction of a tenant from any building in a slum area without securing permission from the Competent Authority under that Act to execute the decree and that the decree is inexecutable or unenforceable in law till so permitted by the Competent Authority. Time would, therefore, begin to run only from the date when the Slum Authority has granted permission to execute the decree. Permission in the present case having been granted only on December 17, 1964, it cannot be disputed that the application for execution filed on May 5, 1965, is well within the period of limitation prescribed by Article 136 of the Limitation Act, Arguments were addressed to me on the question whether the application for execution filed by the respondents on February 18, 1963, when the Limitation Act, 1908, was in force would or would not be a step-in-aid of execution. This argument is irrelevant in this case because the question is whether the application for execution filed by the respondents on May 5, 1965 was filed within the period of limitation prescribed by Article 136 of the Limitation Act, 1963.

(20) In view of my conclusion that the application for execution filed by the respondents on May 5, 1965 was well within the time prescribed by Article 136 of the Limitation Act, 1963, this petition for revision is dismissed with costs. Counsel's fee is assessed at Rs. 100.00.