Brajendra Nath Kutum vs Bisweswari Patir
2021 Latest Caselaw 3451 Gua

                                                                   Page No.# 1/20

GAHC010001582021




                           THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                             Case No. : CRP(IO)/3/2021

          BRAJENDRA NATH KUTUM
          S/O- LT. GOMAN KUTUM, R/O- JAPORIGOG, ANANDAPUR, P.S. DISPUR,
          MOUZA- BELTOLA, GHY, DIST.- KAMRUP(M), ASSAM, PIN- 781006

          VERSUS

          BISWESWARI PATIR
          D/O- LT. DIMBESWAR PATIR, R/O- JAPORIGOG, ANANDAPUR, P.S. DISPUR,
          MOUZA- BELTOLA, GHY, DIST.- KAMRUP(M), ASSAM, PIN- 781006


Advocate for the Petitioner : MR. A C SARMA
Advocate for the Respondent : MUSTAFIJUR RAHMAN

Linked Case : CRP(IO)/69/2021

SMTI BISWESWARI PATIR W/O SRI BRAJENDRA NATH KUTUM R/O JAPORIGOG (ANANDAPUR) GUWAHATI-6, P.S.-DISPUR PIN-9864056236 DIST- KAMRUP, ASSAM

VERSUS

SRI BRJENDRA NATH KUTUM B S/O LATE GOMAN KUTUM R/O JAPORIGOG, ANANDAPUR GUWAHATI-6

Advocate for : MR. N N KARMAKAR Advocate for : appearing for SRI BRJENDRA NATH KUTUM B Page No.# 2/20

Linked Case : CRP(IO)/6/2021

BISWESWARI PATIR W/O SRI BRAJENDRA NATH KUTUM R/O JAPORIGOG (ANANDAPUR) GUWAHATI 6, P.S. DISPUR DIST. KAMRUP, ASSAM.

VERSUS

BRAJENDRA NATH KUTUM S/O LATE GOMAN KUTUM R/O JAPORIGOG ANANDAPUR GUWAHATI 6

Advocate for : MR. N N KARMAKAR Advocate for : MR G BHARADWAJ appearing for BRAJENDRA NATH KUTUM

JUDGMENT & ORDER (oral)

Heard Mr. A.C. Sarma, learned senior counsel, assisted by Mr. G. Bharadwaj, learned counsel appearing on behalf of the petitioners in CRP(I/O) No. 3/2021. The said counsels also appear for the respondent in CRP(I/O) No. 6/2021 and CRP(I/O) No. 69/2021. I have also heard Mr. N.N. Karmakar, learned counsel appearing on behalf of petitioner in CRP(I/O) No. 6/2021 and CRP(I/O) No. 69/2021, who also appears on behalf of the respondent in CRP(I/O) No. 3/2021.

2. For the sake of convenience, the parties in the instant proceedings are referred to in the same status as they stood in the suit.

3. All the three revision applications are taken up together for final disposal as the they relate to the same subject-matter.

4. The brief fact of the instant cases is that the father of the plaintiff/decree holder instituted a suit in the Court of learned Assistant District Judge, Guwahati, which was registered and numbered as TS No. 35/1991 with the Page No.# 3/20

prayers which, for the sake of convenience, are quoted hereinbelow:

"(a) A decree of declaration that the plaintiff has right, title and interest on the land fully described in Schedule 'B' of the plaint be passed in favour of the plaintiff against the defendants;

(b) A decree of confirmation of possession that the plaintiff has Khas possession over the suit land fully described in Schedule 'B' of the plaint be passed in favour of the plaintiff against the defendants;

(c) A decree that the registered sale deeds No. 11684 and No. 11685 dated 12-12-1985 are obtained by fraud and as such they are void, illegal and inoperative and are cancelled, be passed in favour of the plaintiff against the defendants;

(d) A decree for recovery of possession that the plaintiff is entitled to evict the defendant No. 1 removing the structure of Tin Chali from the part of the suit land fully described in Schedule 'C' of the plaintiff;

(e) A decree of permanent injuction restraining the defendant No. 1, his agents and men from causing any interferences with and/or disturbances to the possession of the plaintiff in respect of the suit land fully described in Schedule 'B' of the plaint, be passed in favour of the plaintiff against the defendant No. 1, pending final disposal of the suit, an ad-interim injunction be granted to the plaintiff as prayed for;

(f) Costs of the suit be awarded in favour of the plaintiff against the defendant No. 1;

(g) Any such other and further relief or further reliefs as this Hon'ble Court may deem fit and proper in the circumstances of the case, be awarded in favour of the plaintiff against the defendants."

5. Perusal of the plaint, enclosed as Annexure-1 to CRP(I/O) No. 3/2021, would go to show that the plaint had three schedules marked as Schedule-A, Schedule-B and Schedule-C. The said schedules are quoted hereinbelow, for the sake of convenience:

SCHEDULE 'A' "A plot measuring 4 Bighas 2 Kathas 10 Lechas covered by Dag No. 1187 of K.P. Patta No. 111 of village Japorigog under Mouza Beltola within the urban area of Guwahati in the District of Kamrup, Assam.

SCHEDULE 'B' A plot measuring 2 Kathas 7 Lechas out of the land described in Schedule Page No.# 4/20

'A' covered by Dag No. 1187 of K.P. Patta No. 111 of village Japorigog under Mouza Beltola within the urban area of Guwahati in the District of Kamrup, Assam and bounded by-

North - land of Prafulla Thakuria and Rambrij Chauhan, South - Bhola Kachari, East - Tilak Kutum and West - Puspa Deb and others.

SCHEDULE 'C' A part of the land described in Schedule 'B' above of this plaint wherefrom the plaintiff has been forcibly dispossessed and a tin chali has been constructed therein by the defendant No. 1"

6. During pendency of the said suit, the original plaintiff, i.e., the father of the decree holder expired and the decree holder along with her brothers and sisters were substituted as the plaintiffs in the said suit. The said suit was decreed exparte against the defendants vide the judgment and decree dated 19-01-1993. It is the case of the petitioner in CRP(I/O) No. 6/2021, who was one of the plaintiffs in the said suit, that T.S. No. 35/1991 was disposed of by passing a judgment on 19-01-1993, but the decree was not drawn up on that date. Thereafter, the plaintiff obtained certified copy of the judgment with the help of her advocate, Mr. N.N. Karmakar, in the year 1993. In the year 2015, the plaintiff retired from her service and thereupon, as she could not locate the certified copy of the judgment dated 19-01-1993, passed in T.S. No. 35/1991, she consulted Mr. N.N. Karmakar, Advocate, who advised her to obtain certified copy of the judgment and decree dated 19-01-1993, passed in T.S. No. 35/1991 from the concerned Court.

7. Thereupon, the plaintiff applied for the said certified copy of the judgment and decree passed in T.S. No. 35/1991, but the said certified copy was not furnished to her for which she filed an application before the District Judge, Kamrup (M), Guwahati. Since then also the plaintiff was not furnished the Page No.# 5/20

certified copy of the judgment and decree, she filed a writ petition before this Court, which was registered and numbered as WP(C) No. 6544/2015. The said writ petition was disposed of by the order dated 04-06-2018. The operative portion of the said order is quoted hereinbelow:

"Having regard to the above, this writ petition stands disposed of with direction to the respondent no. 2 to furnish the certified copy of the Judgment and Decree dated 19.01.1993 passed in Title Suit No. 35/1991, which was disposed of by the Court of the Civil Judge No. 2, Kamrup (Metro), within a period of 3 (three) weeks from the date of receipt of a copy of this order. Petitioner is permitted to furnish a copy of this order along with a copy of the writ petition before the respondent no. 2 for his doing the needful in terms of the above."

8. A perusal of the above quoted direction would go to show that the direction was given to the respondent Nos. 2, i.e., the District Judge, Kamrup (M), Guwahati, to furnish the certified copy of the judgment and decree dated 19-01-1993, passed in T.S. No. 35/1991, within a period of three weeks from the date of the receipt of the order. The said direction, it seems, was passed by this Court on the ground that the respondents in the said writ petition had not specified any reason for not furnishing the certified copy to the petitioner and without taking into consideration as to whether the records of T.S. No. 35/1991 were available or not.

9. Thereupon, another writ petition was filed by the plaintiff seeking a direction to the respondents in the said writ petition, i.e., WP(C) No. 2115/2019 to draw a decree on the basis of the judgment and order dated 19-01-1993, passed by the Assistant District Judge, Kamrup (M), Guwahati, in T.S. No. 35/1991. This Court, while adjudicating the said writ petition, passed various orders on 29-03-2019 as well as on 08-05-2019. In the order dated 29-03-2019, a direction was given to the Registrar (Judicial), Gauhati High Court at Page No.# 6/20

Guwahati, to look into the matter as regard the non-furnishing the certified copy of the judgment and decree to the plaintiff and thereafter submit a report. On the basis of the order dated 29-03-2019, the Registrar (Judicial), Gauhati High Court, submitted a report on 19-04-2019 to the effect that the concerned Sheristadar made a search but could not trace out the case record of T.S. No. 35/1991. In that view of the matter, this Court vide another order, dated 08-05- 2019, after taking into consideration the report submitted by the Registrar (Judicial), Gauhati High Court, raised a question as to what needs to be done in such a circumstances and in that regard, the assistance of the learned senior counsel and the standing counsel of the Gauhati High Court was sought for. Unfortunately, neither the senior counsel nor the standing counsel of the Gauhati High Court provided any assistance and on the basis of the submission of Mr. Karmakar, who submitted that Rule 445 of the Civil Rules and Orders for Guidance of the Civil Courts and Officers subordinate to the High Court of Assam and Nagaland, Volume-I deals with reconstruction of Civil Court records and registers which are destroyed or damaged by fire. On the basis of that, this Court by order dated 30-05-2019 disposed of the said writ petition, i.e., WP(C) No. 2115/2019, with the following directions:

"Without further deliberation in the matter and having regard to the order of this Court dated 04.06.2018, passed in WP(C) No.6544/2015, learned District Judge, Kamrup (M) at Guwahati is directed to take recourse to the procedure laid down in Rule 445 (3) (A) of the Civil Rules and Orders and draw up a decree on the basis of judgment and order dated 19.01.1993 in TS No.35/1991 whereafter certified copy of the judgment and decree so drawn may be furnished to the petitioner. Petitioner shall appear before the Court of learned District Judge, Kamrup (M) at Guwahati within 15 days from today whereafter learned District Judge shall do the needful as above."

10. A perusal of the above directions would go to show that the District Page No.# 7/20

Judge, Kamrup (M), Guwahati, was directed to take recourse to the procedure in Rule 445 (3)(A) of the Civil Rules and Orders and draw up a decree on the basis of judgment and order dated 19-01-1993 in T.S. No. 35/1991 whereafter, the certified copy of the judgment and decree, so drawn, was further directed to be furnished to the plaintiff within a period of 15 days from the date of the said order. At this stage, it may be relevant to take note of that none of the parties were in possession of the certified copy of the said judgment, passed on 19-01- 1993 in T.S. No. 35/1991 and there was a direction passed by this Court to prepare a decree on the basis of an unauthenticated, unsigned typed copy of the judgment dated 19-01-1993 in T.S. No. 35/1991.

11. Thereupon, a decree was prepared in terms with the unauthenticated, unsigned typed copy of the judgment dated 19-01-1993 furnished by the plaintiff as per the directions of this Court inasmuch as it is an admitted fact that the plaintiffs did not have a certified copy of the said judgment nor even a photocopy of the said certified copy of the judgment. The copy of the judgment in possession of the plaintiff was only a typed copy of the said judgment dated 19-01-1993 which was lying with her advocate. On the basis of the said direction passed by this Court on 18-07-2019, a decree was prepared and the same, for the sake of convenience is quoted hereinbelow:

"It is ordered that the suit is hereby decreed ex parte as prayed by the plaintiffs and with no costs.

It is hereby declared that the plaintiffs have right, title and interest over the B Schedule land and their possession is hereby confirmed.

It is further declared that aforesaid registered sale deeds No. 11684 and No. 11685 are void, illegal and inoperative in law and stand cancelled.

It is also ordered that the defendant Brajendra Nath Kutum shall be evicted along with forcibly raised tin chali from the 'C' Schedule land and Page No.# 8/20

shall be handed over to the plaintiff.

A permanent injunction is hereby issued restraining the defendant No. 1, his agent and men from causing any interference with or disturbance to the peaceful possession of the suit land described in Schedule 'B' of the plaint."

12. It is also relevant to take note of the fact that the decree in so far as the Schedule C land was concerned, was a decree for eviction of the defendant No. 1 from the Schedule C land along with removal of the unauthorised construction. The permanent injunction sought for was only in respect to the Schedule B land. Though the Schedule C land is the part of Schedule B land, but the said decree for permanent injunction would have no impact until and unless the possession of Schedule C land is handed over to the plaintiff.

13. Pursuant to the certified copy of the decree being handed over, the plaintiff, as the decree holder filed an application seeking execution. The said execution application has been enclosed as Annexure-V to CRP(I/O) No. 3/2021. A perusal of the said execution application reveals that in Column No. 3 it was specifically mentioned that the date of the decree is 19-01-1993. In Column No. 5 of the said application, it has been mentioned that prior to filing of this execution application on 20-09-2019, another application was filed, which was registered and numbered as T. Ex. Case No. 39/2019, which was withdrawn with liberty to file afresh execution case and the said liberty was duly granted vide order dated 07-09-2019. Column No. 10 of the said execution application is most pertinent, which relates to the relief prayed for and the said Column No. 10 is quoted hereinbelow for the sake of convenience: "10. Relief prayed: It is prayed that

(a) unauthorized constructions erected by the defendant, Sri Brajendra Nath Kutum in land described in Schedule C be removed Page No.# 9/20

by demolition of such constructions; and

(b) the possession of the schedule C land be handed over to the plaintiff forthwith."

14. A reading of the said relief prayed for would go to show that the decree holder/plaintiff sought the assistance of the Court in the said execution proceedings for delivery of possession of Schedule C land to be handed over to the plaintiffs by removal of the unauthorised construction erected by the defendant No. 1 in the Schedule C of the land by demolition of such construction.

15. The Column No. 11 of the said application, which relates to the mode in which assistance of the Court is required, it has been stipulated therein that the plaintiff prays that in order to recovery of possession of the land described in Schedule C and the cost of taking out the execution, the land in possession of the defendant No. 1 which, admittedly, is the Schedule C land was to be delivered to the plaintiff by demolishing the unauthorised construction and evicting the defendant No. 1 along with his men therefrom under Order XXI, Rule 35 of the CPC with police help.

16. At this stage, when the defendant No. 1 had come to learn about the aforesaid proceedings and the issuance of the decree without compliance of the provisions of Rule 445(3)(A) of the Civil Rules and Orders of the Gauhati High Court, the defendant No. 1 filed two applications. One application was made under Section 151 filed in the suit, i.e., T.S. No. 35/1991, whereby the defendant No. 1 sought for recalling of the order dated 18-07-2019. A perusal of the order dated 18-07-2019 would go to show that the trial Court had, pursuant to the order passed by this Court in WP(C) No. 2115/2019, dated 30-05-2019, prepared the decree, sealed and signed the same. Accordingly, it was the Page No.# 10/20

contention of the defendant No. 1, in the said case, that the defendant No. 1 ought to have made a party in the said writ proceeding and in the absence of the defendant No. 1 or for that matter without putting the defendant No. 1 to notice, the reconstruction of the decree ought not have been done more so when the copy of the judgment dated 19-01-1993 produced was the typed and unsigned copy. It is under such circumstances vide Petition No. 874/2020 (Annexure VI to CRP(I/O) No. 6/2021) was filed. The defendant No. 1 prayed that the order dated 18-07-2019 passed in T.S. No. 35/1991 ought to be recalled.

17. Another application was filed by the defendant No. 1 under Article 136 of the Limitation Act, 1908, read with Rule 445(3)(E)8(A) of the Civil Code Rules and Orders of the Gauhati High Court.

18. The said application was filed in T. Ext. 12/2020. By the said application, the defendant No. 1 apart from raising the issue in the illegality in reconstruction of the decree in violation of Rule 445 of the Civil Rules and Orders for Guidance of the Civil Courts and Officers subordinate to the High Court of Assam and Nagaland have also raised the issue of limitation on the ground that the execution application has been filed beyond the period as mentioned in Article 136 of the Limitation Act, 1963 for which the execution application being barred by limitation is required to be dismissed.

19. The plaintiff, who is the decree holder did not file any written objection to the said applications and had only orally objected.

20. The executing Court, vide order dated 03-12-2020, took up both the applications under Section 151, registered as Petition No. 874/2020 as well as the Petition No. 1026/2020 instituted under Article 136 of the Limitation Act, 1963. At this stage, it may be relevant herein to mention that the executing Page No.# 11/20

Court could not have taken into consideration the Petition No. 874/2020 in the execution proceedings inasmuch as the said application was filed in the suit for recalling the order dated 18-07-2019, passed in the suit, i.e., T.S. No. 35/1991.

21. Be that as it may, similar contentions were raised in the petition No. 1026/2020 by the defendant No. 1/judgment debtor, the Executing Court, vide order dated 03-12-2020, stayed the further execution proceedings on the ground that the said decree dated 18-07-2019 was prepared on the basis of an unauthenticated and unsigned copy of the judgment dated 19-01-1993 and as such, was of the opinion that it would be in the interest of justice that a summary enquiry regarding authenticity of the judgment passed in T.S. No. 35/1991 as well as the facts concerning non-tracing the case record of T.S. No. 35/1991 is required to be conducted and in that regard, the Sheristadar of the Civil Court, the Record Keeper of the Civil Court and the counsel of the plaintiff, Mr. N.N. Karmakar were directed to appear before the Court to be examined on oath and till the said summary enquiry was to be completed, the execution of the decree prepared by the Court on 18-07-2019 was kept in abeyance. As regards the Petition No. 1026/2020, the Court rejected the said application on the ground that in the facts of the instant case, the limitation has to be dealt with as an exceptional circumstances and with leniency inasmuch as per the opinion of the executing Court as the case records of T.S. No. 35/1991 was not traceable, there was no apparent default for not filing any execution proceeding from the date of passing of the judgment and decree.

22. It is against the rejection of the prayer for dismissal of the execution proceeding on the ground of being barred by limitation, the defendant No. 1 has approached this Court under Article 227 of the Constitution of India, which has been registered as CRP(I/O) No. 3/2021. On the other hand, against the same Page No.# 12/20

order dated 03-12-2020 whereby the Court stayed the execution proceedings pending the summary proceedings initiated, the plaintiff approached this Court under Article 227 of the Constitution of India, which has been registered and numbered as CRP(I/O) No. 6/2021. Surprisingly, pursuant to the notice having been issued in both the above revision applications, the plaintiff had also filed another application under Section 151 of the CPC, which has been registered and numbered as CRP(I/O) No. 69/2021. The prayers made in CRP(I/O) No. 69/2021 being relevant, are quoted hereinbelow:

"(a) set aside the impugned order dated 03.12.2020 (Annexure-3) passed by the Court of Civil Judge (Sr. Divn.) No. 2, Kamrup (M), Guwahati in T. Ex. No. 12/2020;

(b) direct the learned Court of Civil Judge (Sr. Divn.) No. 2, Kamrup (M), Guwahati to execute the decree dated 18.07.2019 passed it in T.S. No. 35/1991 in accordance with law within the time bound by this Hon'ble Court;

(c) hold that the pending CRP(I/O) 03/2021 and CRP(I/O) 06/2021 are non est and

(d) pass any such other and further order/orders as this Hon'ble Court may deem fit and proper in the circumstances of the case."

23. Perusal of the above quoted prayers in CRP(I/O) No. 69/2021, apart from others goes to show that the plaintiff has sought dismissal of her own petition, i.e., CRP(I/O) No. 6/2021 as being non est so, on that very ground itself, the CRP(I/O) No. 6/2021 ought to be dismissed.

24. Be that as it may, taking into consideration that this Court is adjudicating all the three revision applications, it would be relevant to take note of the contention of the parties in the instant proceedings.

25. Mr. Sarma, learned senior counsel submits that perusal of the decree, even assuming the same to be correct, is a decree so far as declaration of right, title, interest and possession in respect of Schedule-B of the plaint is concerned.

Page No.# 13/20

The decree also contains a direction for delivery of possession in respect of Schedule-C and permanent injunction is only in respect of Schedule-B land. Consequently, the execution proceeding, initiated in the year 2019, admittedly, on the basis of a judgment and decree passed in the year 1993 was barred by limitation and the executing Court did not at all take into consideration the said aspect of the matter. He further submits that in the year 2015, after the period of limitation for enforcing the decree having already lapsed, the decree holder had filed an application seeking certified copy of the decree on 25-05-2015. Filing of such an application would not enhance the period of limitation which had already expired, by virtue of Section 9 of the Limitation Act. He further submits that the execution application has been filed on 20-09-2019 and as such the execution application, in so far as the relief sought for in Column No. 10 of the execution application is concerned, was barred by limitation.

26. As regards the challenge made to the stay of execution proceedings by the executing Court, which has been assailed by the respondent, as petitioner in CRP(I/O) No. 6/2021, he submits that the petitioner in CRP(I/O) No. 6/2021, by filing subsequent application, i.e., CRP(I/O) No. 69/2021, had himself admitted that her application is non est. Further he submits that the executing Court was within the jurisdiction to look into the authenticity of the said judgment passed by the trial Court on 19-01-1993, inasmuch as the decree was prepared on the basis of the unauthenticated, unsigned typed copy.

27. He further submits that the CRP(I/O) No. 69/2021, on the face of it, is not maintainable inasmuch as what the petitioner in the said petition has sought for is totally misconceived and untenable in law.

28. On the other hand, Mr. Karmakar, learned counsel submits that both the CRP(I/O) No. 3/2021 and CRP(I/O) No. 6/2021 are not maintainable in view of Page No.# 14/20

the fact that an application under Article 227 is not maintainable. He further submits that the Petition No. 874/2020, filed before the executing Court was an application under Section 151 of the CPC challenging the order dated 18-07- 2019, which was passed on the basis of a direction given by this Court in WP(C) No. 2115/2019 and as such the petition of the judgment debtor was misconceived and untenable. As regards the question of limitation, Mr. Karmakar, learned counsel submits that the decree was also in respect of permanent injunction and in view of the proviso to Article 136, a decree for permanent injunction shall not be subject to any period of limitation. He further submits that by virtue of order XX Rule 6A and 7, the date of the judgment shall be the date of the decree and as the decree holder could get hold of the decree only in the year 2019, the same was within the period of limitation.

29. I have heard the learned counsel for the parties at length and I have perused the order dated 03-12-2020, which has been impugned in all the three proceedings.

30. Let me take into consideration the challenge made to the order dated 03- 12-2020, in CRP(I/O) No. 3/2021. The order dated 03-12-2020 has two facets, one is the keeping in abeyance of the execution proceeding and the other is the dismissal of the Petition No. 1026/2020, filed under Article 136 of the Limitation Act.

31. I have perused the Petition No. 1026/2020. A perusal of the said petition would go to show that the defendant No. 1 has filed a petition stating, inter alia, that the execution proceeding is barred under the provision of Article 136 of the Limitation Act, 1963 and consequently, the decree which has been sought to be executed in so far as the Schedule C land is concerned, is not executable decree. What in effect is that the said petition is, invoking the power under Page No.# 15/20

Section 47 of the CPC, 1908 which, amongst others, gives the power to the executing Court to decide on the question of execution, discharge and satisfaction of a decree and in view of the mandate of Section 47 of the Code, it is only the executing Court which can decide the said aspect of the matter and not by way of a separate suit. The question as to whether the execution application being barred by limitation and consequently the decree becoming unexecutable and the further question as to whether a decree prepared on the basis of an unauthenticated and unsigned typed copy of a judgment is executable are all questions within the realm of the executing Court under Section 47 of the Code.

32. Let me take first the question of limitation. Article 136 of the Limitation Act, 1963 reads as follows:

Section Description of suit   Period       of Time from which period begins to run
                              limitation
136      For the execution Twelve years      1 [When] the decree or order
         of    any      decree               becomes enforceable or where the
         (other     than     a               decree or any subsequent order
         decree granting a                   directs any payment of money or the
         mandatory                           delivery of any property to be made
         injunction) or order                at a certain date or at recurring
         of any civil court                  periods, when default in making the
                                             payment or delivery in respect of
                                             which execution is sought, takes
                                             place: Provided that an application for
                                             the enforcement or execution of a
                                             decree granting a perpetual injunction
                                             shall not be subject to any period of
                                             limitation.

33. A perusal of the said Article would show that for execution of any decree or order by any Civil Court, other decree granting mandatory injunction, the period of limitation is 12 years and the time from which the period begins to run Page No.# 16/20

is when the decree or order becomes enforceable or where the decree or any subsequent order directs any payment of money or delivery of any property to be made at a certain date or at recurring periods, when default in making the payment or delivery in respect of which execution is sought, takes place, provided that an application for the enforcement or execution of a decree granting a perpetual injunction shall not be subject to any period of limitation. For the purpose of this case, it can be said that the period of limitation is 12 years from the date the decree or order became enforceable.

34. At this stage, it may also be relevant to take note of Section 9 of the Limitation Act, which for the sake of convenience is quoted hereinbelow:

"9. Continuous running of time.--Where once time has begun to run, no subsequent disability or inability to institute a suit or make an application stops it: Provided that, where letters of administration to the estate of a creditor have been granted to his debtor, the running of the period of limitation for a suit to recover the debt shall be suspended while the administration continues"

35. For the purpose of the instant case, the proviso to Section 9 is not relevant, but what is relevant is once time has began to run, no subsequent disability or inability to institute a suit or make an application stops.

36. Part-III of the Limitation Act deals with the heading computation of period of limitation and stipulates the various circumstances under which exclusion of time is required to be taken note of while computing the period of limitation. Further to that, Section 3 of the Limitation Act, 1963 imposes an obligation upon the Court irrespective of any defence being raised or not to dismiss a suit instituted, appeal preferred, and application made after the prescribed period and the prescribed period is in reference to the schedule to the Limitation Act and for the purpose of the instant case, Article 136.

Page No.# 17/20

37. This power under Section 3 is subject to the provisions contained in Section 4 to 24 inclusive. In the backdrop of above, it is required to be taken note of as to whether the provisions of Section 4 to 24, both inclusive, would be applicable to the instant case and if the same is not applicable, a valuable right accrues upon the defendant No. 1 insofar as the present execution application is concerned. It being an admitted fact that the judgment was pronounced on 19- 01-1993 and in the year 2015 the plaintiff, for the first time, took steps for obtaining the certified copy of the judgment and decree and thereupon, in the year 2019, filing an application for execution or any other words, the plaintiff had filed an application for obtaining the certified copy after 22 years and filed the execution petition after 26 years. This inaction on the part of the plaintiff/decree holder gives a valuable right upon the defendant No. 1/judgment debtor and unless and until the provisions of Section 4 to 24, both inclusive, can be made applicable, the executing Court has no option but to dismiss the application for execution insofar as the relief claimed in Column 10 of the said application is concerned.

38. The submission made by Mr. Karmakar, learned counsel that the decree is also for permanent injunction, as such the provisio of Article 136 would apply, is totally misconceived inasmuch as the execution sought for, is not as regards permanent injunction, but for recovery of Khas possession by evicting the defendant No. 1 from Schedule C land and by demolishing the unauthorised construction. These aspect of the matters were not taken into consideration by the Court below while passing the impugned order dated 03-12-2020 in rejecting the Petition No. 1026/2020 and merely on the ground that a lenient view is required to be taken, in view of the fact that the case record of T.S. No. 35/1991 could not be traced out, in my opinion, is an error in exercise of Page No.# 18/20

jurisdiction by the Court below. The Court below failed to take into consideration that the Limitation Act contains a schedule, which has three divisions. The first division relates to suits, the second relates to appeals and the third division relates to applications. A specified period of limitation is prescribed against individual circumstances in the three divisions of the Schedule which contains 137 Articles. The period of limitation as prescribed cannot be confused with exercise of jurisdiction in terms of Section 5 of the Limitation Act inasmuch as in terms of Section 5 of the Limitation Act, a discretion is conferred to condone the delay upon sufficient cause and the said power which has to be exercised under Section 5 for condonation of delay cannot be equated with the period of limitation prescribed in the schedule.

39. These aspect of the matter has not at all been taken into consideration by the executing Court while passing the order rejecting the application under Article 136 of the Limitation Act for which this is a fit case that the said aspect of the matter is remanded back to the executing Court to decide afresh the question of limitation in terms of the observations made hereinabove.

40. The second facet of the order dated 03-12-2020 is staying the said execution proceeding, pending disposal of the summary proceedings initiated by the Executing Court. As already observed hereinabove, the Executing Court had wrongly taken the contents of the Petition No. 874/2020 and had exercised its jurisdiction on the basis of the said petition. However, the contentions, which were raised in the Petition No. 874/2020, have also been raised in the Petition No. 1026/2020, filed before the executing Court. Under such circumstances, I do not find any illegality in exercise of the jurisdiction in passing the order by taking into consideration the contents of the Petition No. 874/2020.

41. The next question, therefore, arises as regards legality and validity of the Page No.# 19/20

order dated 03-12-2020 insofar as initiation of the summary inquiry.

42. As has already been observed hereinabove, this Court vide order dated 30-05-2019, had directed for drawing up a decree, but while doing so, did not take into consideration that the judgment available with the plaintiff was an unauthenticated and unsigned typed copy of the judgment and on the basis of the said order dated 30-05-2019, the decree has been prepared on 18-07-2019. Under such circumstances, as the executing Court is in-charge of execution, discharge and satisfaction of the decree and it has the power, under Section 47, to go into such question as to whether the said decree is at all executable inasmuch as the said decree has been prepared on the basis of unauthenticated, unsigned typed copy of the judgment, I am therefore of the opinion that the order dated 03-12-2020, whereupon the executing Court set up the summary inquiry proceeding to enquire as regards the authenticity of the unsigned typed copy of the judgment produced by the plaintiff was fully justified. It is also observed that the contention that the decree having been prepared on the basis of directions passed by this Court in WP(C) No. 2115/2019, cannot be called in question, in my opinion, would not be a correct proposition inasmuch as this Court while passing the order dated 30-05-2019 had directed the decree to be drawn up on the basis of judgment and order dated 19-01-1993, passed in T.S. No. 35/1991, but not on the basis of unauthenticated, unsigned typed copy of the judgment produced by the plaintiff.

43. Under the circumstances, both the CRP(I/O) No. 6/2021 and CRP(I/O) No. 69/2021 stand dismissed.

44. In view of above, I interfere with the order of rejection of the application bearing Petition No. 1026/2020, thereby directing the executing Court to decide Page No.# 20/20

afresh, the question of limitation in terms of the observation made hereinabove.

45. The parties are directed to appear before the Court below on 18-01-2022.

JUDGE

Comparing Assistant