Kerala High Court
P.T.Babu vs Vijaya Bank on 16 October, 2025
O.P.(C)No.1388 of 2016
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
THURSDAY, THE 16TH DAY OF OCTOBER 2025 / 24TH ASWINA, 1947
OP(C) NO. 1388 OF 2016
AGAINST THE ORDER DATED 04.01.2016 IN E.P.NO.46/2015 IN OS
NO.58 OF 2001 OF ADDITIONAL SUB COURT, THALASSERY
PETITIONER:
P.T.BABU
AGED 48 YEARS, S/O.DASAN, BUSINESS, PROPRIETOR BABU
HOSIERY, KP 2/262, ADOORPALAM, RESIDING AT "SANTHOSH
HOUSE", P.O. THOTTADA, KANNUR.
BY ADVS.
SRI.N.M.MADHU
SMT.C.S.RAJANI
RESPONDENTS:
1 VIJAYA BANK
EDAKKAD-670 001, REP. BY ITS PRESENT MANAGER.
2 C.K.PUSHPALATHA
AGED 53 YEARS, D/O.GOPALAKRISHNAN, HOMEO DOCTOR,
RESIDING AT SANTHOSH HOUSE, PO THOTTADA,
KANNUR-670 007.
3 M.AJITH KUMAR
AGED 48 YEARS, S/O.MUKUNDAN, BUSINESS, NGO QUARTERS,
KANNUR AMSOM, KANNUR DISTRICT-670 001.
4 C.K.KARTHIYAYANI
AGED 76 YEARS, W/O.GOPALAKRISHNAN, HOUSE WIFE,
HARITHAM, P.O THOTTADA, KANNUR-670 007.
O.P.(C)No.1388 of 2016
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5 HEMALATHA
AGED 55 YEARS, D/O.GOPALAKRISHNAN, HOUSE WIFE,
HARITHAM, P.O. THOTTADA, KANNUR-670 007.
6 SREEKUMAR
AGED 43 YEARS, S/O.GOPALAKRISHNAN, HARITHAM,
P.O THOTTADA, KANNUR-670 007.
BY ADV SMT.LATHA ANAND,SC, VIJAYA BANK
THIS OP (CIVIL) HAVING COME UP FOR HEARING ON 17.09.2025, THE
COURT ON 16.10.2025 DELIVERED THE FOLLOWING:
O.P.(C)No.1388 of 2016
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CR
JUDGMENT
Invoking the supervisory jurisdiction of this Court
under Article 227 of the Constitution of India, the
petitioner, a judgment debtor, impugns the order of the
executing court, rejecting his plea that the execution
petition is barred by limitation, whereby the objection raised
on limitation was negatived and the execution petition was
found maintainable.
2. The decree in question was passed in a suit for
recovery of money secured under a mortgage, on 02.01.2002. The
first respondent, who is the decree holder, had initially
filed an execution petition on 04.08.2009. The said execution
petition was returned on 24.11.2010, after a lapse of 507
days, on the finding that only the Debt Recovery Tribunal had
jurisdiction to entertain it, since, by then, the decretal
amount had exceeded Rs.10 lakhs.
3. The first respondent, however, did not approach the
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Tribunal, but instead instituted a fresh execution petition
before the very same court on 06.03.2015. By that time, the
original period of limitation prescribed for execution of the
decree, namely twelve years, had expired, and a further period
of 428 days had also elapsed. The contention urged by the
decree holder is that, if 507 days, i.e., the period during
which the first execution petition was prosecuted in good
faith before the said court is added under Section 14(2) of
the Limitation Act ('the Act', for short) to the period of
limitation for executing the decree, the present execution
petition would fall within the period of limitation.
4. The execution court proceeded to hold that the decree
holder is entitled to get the time expired during the pendency
of the earlier execution petition, as Section 14(2) of the Act
is applicable to the fact-situation.
5. I have heard Sri. N.M Madhu, the learned counsel
appearing for the petitioner and Smt.Latha Anand, the learned
counsel appearing for the first respondent.
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6. The short question that arises is whether the decree
holder is entitled to get exclusion of the period during which
the first execution petition was pending.
7. The learned counsel appearing for the petitioner
contended that the execution petition is barred by limitation.
Relying on the decision in Bakhtawar Singh and Another v. Sada
Kaur and Another (AIR 1996 SC 3488), the learned counsel
contended that the decree holder is not entitled to claim
exclusion of the period during which the earlier execution
petition was pending since the earlier proceeding was not
rejected for want of jurisdiction or for any other cause of a
like nature, as contemplated under Section 14 of the Act.
8. In response, placing reliance upon the decision in
Consolidated Engg. Enterprises and Ors.v. Principal Secy.
Irrigation Deptt. and Ors. [MANU/SC/7460/2008], the learned
counsel appearing for the first respondent submitted that the
underlying policy of Section 14 of the Act is to extend
protection to a litigant who, in good faith and with due
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diligence, prosecutes a proceeding which fails for some
defects, without being adjudicated on merits. It is further
submitted that while construing the provisions of Section 14,
the approach of the court must be to interpret the provision
in a manner which advances the cause of justice rather than to
defeat the proceedings on the ground of mere technicality. The
learned counsel also contended that the earlier execution
petition was returned by the court on an erroneous perception
of jurisdiction, and therefore, the essential precondition
under Section 14(2) of the Act stands substantially satisfied.
9. Sub clause (2) of Section 14 of the Act is wider
enough to cover execution proceedings as well. Though the
provision employs the expression "application", Section 2(b)
of the Act defines "application" to include a petition; hence,
an execution petition would fall within its ambit. In
Roshanlal Kuthalia and Others v. R.B. Mohan Singh Oberoi,
(1975) 4 SCC 628), it was held that Section 14 (2) of the
Limitation Act is applicable to execution proceedings.
10. Section 14(2) of the Act reads as follows:
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"14. Exclusion of time of proceeding bona fide in court
without jurisdiction.--
(1) xx xx xx
(2) In computing the period of limitation for any
application, the time during which the applicant has
been prosecuting with due diligence another civil
proceeding, whether in a court of first instance or of
appeal or revision, against the same party for the same
relief shall be excluded, where such proceeding is
prosecuted in good faith in a court which, from defect
of jurisdiction or other cause of a like nature, is
unable to entertain it."
The effect of this section is not to regard a proceeding, when
refiled in the proper forum, as a continuation of the original
one. Accordingly, the period of limitation for the refiled
proceeding must be determined as if it were a new proceeding,
while excluding the time during which the matter was bona fide
prosecuted in the wrong forum. Then, how is the period of
limitation for the subsequent execution petition reckoned?
11. A litigant seeking the benefit of Section 14 cannot
add the period during which the previous proceeding remained
pending from the date of expiry of the original period of
limitation, as the computation must be made by excluding that
period altogether. The period of limitation for the present
execution petition shall be the period prescribed for such a
petition, excluding, in its computation, the time during which
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the earlier petition was diligently prosecuted before a court
without jurisdiction. Therefore, such portion of the
limitation period that remained unexhausted at the time of
institution of the first proceeding will be available to the
applicant for presentation of the subsequent one.
12. To illustrate, in the case of a suit for which the
prescribed period of limitation is three years, if the
plaintiff in good faith institutes the suit on completion of
two years and it remains pending for two more years before
being dismissed for want of jurisdiction, the time left for
filing a fresh suit would be only one year from the date of
dismissal and not another two years therefrom. This follows
from the express language of Section 14 of the Act, which
provides that in computing the period of limitation for any
application, the time during which the applicant was
prosecuting another civil proceeding shall be excluded. Thus,
where the earlier proceeding was filed on the last day of
limitation and was returned for presentation before the proper
court, the litigant would not have any further time available
for such presentation. [See Parameswara Kurup v. Vasudeva
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Kurup (1964 KLT 145)]. Therefore, while calculating the period
of limitation in such circumstances, the entire period during
which the first proceeding was pending must be treated as non-
existent, and computation of limitation must proceed
accordingly. This principle has been authoritatively clarified
by this Court in Parameswaran v. Ramachadram (1986 KLT 982).
[see also Narain Das v. Banarsi Lal and others (AIR 1970 Pat
50].
13. Herein, the decree was passed on 02.01.2002. The
twelve-year period of limitation for execution, under Article
136 of the Limitation Act would have expired on 02.01.2014.
The decree holder instituted the first execution petition on
04.08.2009. The remaining period of limitation then available
was approximately four years and five months. Consequently, if
Section 14 of the Limitation Act is found applicable, the
first respondent would be entitled to a further period of
about four years and five months from 24.11.2010--the date on
which the earlier petition was returned--to present a
subsequent execution petition. As the second execution
petition was filed on 06.03.2015, it is within the said
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period.
14. The question that remains for consideration is,
whether the conditions prescribed under Section 14(2) of the
Act stand satisfied in the facts of the present case. The
circumstances under which Section 14(2) of the Limitation Act
can be invoked are well settled. In Consolidated Engg.
Enterprises v. Principal Secretary, Irrigation Department
[(2008) 7 SCC 169], the Hon'ble Supreme Court has delineated
the essential conditions for the applicability of the
provision as follows:
1.Both the prior and the subsequent proceedings must be
civil proceedings prosecuted by the same party;
2.The prior proceeding must have been prosecuted with due
diligence and in good faith;
3.The failure of the prior proceeding must have been due
to a defect of jurisdiction or other cause of a like
nature;
4.The earlier and the latter proceedings must relate to
the same matter in issue; and
5.Both the proceedings must have been instituted in a
court.
(Emphasis supplied)
15. In the case on hand, the controversy arises only with
reference to condition No. (3) above. From the plain language
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of Section 14, it is manifest that, to claim the benefit of
exclusion of time, it must be established that the court which
declined to entertain the earlier proceeding was unable to do
so by reason of a defect of jurisdiction or other cause of a
like nature. The provision attracts only when a party
bona fide chooses a wrong forum and then diligently prosecutes
it. The provision contemplates a situation where, the
litigant, acting in good faith, had instituted a proceeding
before a forum which, in law, lacked jurisdiction to entertain
the matter, or for some cause of like nature the forum is
unable to adjudicate the cause. When a court, which in fact
has jurisdiction, refuses to entertain the proceeding holding
that it lacks jurisdiction, it is only an erroneous order.
16. Resultantly, Section 14 does not extend to a case
where the court, which possesses jurisdiction, erroneously
declines to entertain the proceeding on a mistaken perception
or wrong application of legal principles. In such a situation,
the remedy available to the aggrieved party lies elsewhere--by
way of a challenge before the higher forum or seeking
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correction of that erroneous order by the same forum-- and not
by instituting a successive proceeding of the same nature
before the very same forum. In such a case, resort cannot be
made to Section 14. To permit such recourse would defeat the
legislative intent of the provision and obliterate the
distinction between lack of jurisdiction and erroneous
exercise of jurisdiction. In Bakhtawar Singh v. Sada Kaur
(supra) it is held as follows:
"As regards the exclusion of time under S.14 of the
Limitation Act it was essential for its application to
show that the proceedings related to the same matter in
issue and the plaintiff prosecuted the suit in good
faith in a court which, from defect of jurisdiction or
other cause of like nature is unable to entertain it.
As discussed above the plaintiffs / appellants have
miserably failed to show as to what was the defect of
jurisdiction or any other cause of like nature by
reasons of which the earlier suit was not entertainable
or competent. That being so, the benefit of the
provisions of S.14 cannot be legitimately extended to
the suit of the plaintiffs. In these facts and
circumstances the plaintiffs suit has rightly been
dismissed as barred by limitation."
Similar view was expressed in Rajarethna Naikkan v.
Parameswara Kurup (1997 (1) KLT 777).
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17. In this case, both the execution petitions were filed
in the very same court. The respondent/decree holder concedes
that the court in which the execution petitions were filed had
jurisdiction to entertain the petition, but that under an
erroneous order it returned earlier one. Therefore, one of the
essential requirements of prosecuting a proceeding in a wrong
forum and seeking exclusion of such a period in a subsequent
proceeding before the proper forum, does not arise at all.
Indeed, it is correct to say that Section 14 of the Act is to
be liberally construed for advancing the cause of justice;
however, at the same time, under the guise of liberal
interpretation, the court cannot import or supplement new
terms into the statute.
18. In view of the foregoing discussion, it has to be
concluded that one of the essential conditions for invoking
the said provision, namely, "that the court was unable to
entertain the matter owing to a defect of jurisdiction or
other cause of a like nature", is not satisfied in the present
case. Hence, the decree holder is not entitled to get
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exclusion of the period of pendency of the first execution
petition. The present execution petition is filed beyond the
period of limitation of twelve years prescribed under Article
136 of the Limitation Act and is hence time-barred. As Section
5 of the Act is not applicable to execution proceedings, there
arises no question of condonation of delay. The execution
petition is thus liable to be dismissed.
In the result, the original petition is allowed. The
impugned order is set aside. The Execution Petition will stand
dismissed as barred by limitation.
Sd/-
P. KRISHNA KUMAR
JUDGE
SV
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APPENDIX OF OP(C) 1388/2016
PETITIONER EXHIBITS
P1 : TRUE COPY OF THE EXECUTON PETITION BEARING EP
NO.46/2015 IN OS 58/2001 ON THE FILES OF THE
ADDITIONAL SUB COURT, THALASSERI.
P2 : TRUE COPY OF THE OBJECTION DATED 27-7-2015
FILED BY THE PETITIONER.
P3 : TRUE COPY OF THE ORDER DATED 4-1-2016 IN EP
NO.46/2015 IN OS 58/2001 ON THE FILES OF THE
ADDITIONAL SUB COURT, THALASSERI.
