Madhya Pradesh High Court
Saiduddin Ansari (Dead) Thr. Lrs. ... vs Hafiz Abdul Hamedd (Dead) Thr. ... on 23 June, 2023
Author: Arun Kumar Sharma
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE ARUN KUMAR SHARMA
ON THE 23 rd OF JUNE, 2023
CIVIL REVISION No. 840 of 2019
BETWEEN:-
1. SAIDUDDIN ANSARI (DEAD) THROUGH LRS.
MOHD. FAIYAZ S/O LATE SAIDUDDIN ANSARI,
AGED ABOUT 60 YEARS, OCCUPATION:
SHOPKEEPER R/O JANKI PARK NEAR PRAKASH
CHOWK, REWA DISTRICT REWA (MADHYA
PRADESH)
2. MOHD. ILIAS S/O LATE SAIDUDDIN ANSARI,
AGED ABOUT 53 YEARS, OCCUPATION:
ADVOCATE R/O JANKI PARK NEAR PRAKASH
CHOWK, REWA, DISTRICT REWA (MADHYA
PRADESH)
3. MOHD. RIYAZ S/O LATE SAIDUDDIN ANSARI,
AGED ABOUT 45 YEARS, JANKI PARK NEAR
PRAKASH CHOWK, REWA DISTRICT REWA
(MADHYA PRADESH)
.....APPLICANTS
(BY SHRI S.K. DUBEY - ADVOCATE )
AND
1. HAFIZ ABDUL HAMEDD (DEAD) THROUGH LRS.
MOHD. MAKKI S/O LATE HAFIZ ABDUL HAMEED,
AGED ABOUT 60 YEARS, OCCUPATION:
AGRICULTURIST R/O MOHALLA TAREHTI TEHSIL
HUZUR DISTRICT REWA AT PRESENT R/O
POKHARI TOLA ROAD WARD NO.25 BANSAGAR
COLONY, REWA DISTRICT REWA (MADHYA
PRADESH)
2. NOORUDDIN ANSARI S/O LATE SAIDUDDIN
ANSARI, AGED ABOUT 65 YEARS, OCCUPATION:
SHOPKEEPER JANKI PARK NEAR PRAKASH
CHOWK REWA (MADHYA PRADESH)
3. MOHD.MUNIR ANSARI S/O LATE SAIDUDDIN
Signature Not Verified
ANSARI, AGED ABOUT 63 YEARS, OCCUPATION:
Signed by: SANTOSH
KUMAR TIWARI
Signing time: 6/26/2023
5:13:33 PM
2
PRIVATE JOB JANKI PARK NEAR PRAKASH
CHOWK REWA (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI R.S. RATHORE - ADVOCATE)
This revision coming on for admission this day, th e court passed the
following:
ORDER
The applicants have preferred present civil revision petition under
Section 115 of CPC being aggrieved by order dated 16/09/2019 passed by
Third Civil Judge Class II, Rewa in Execution Case No. 108-A/77/2010,
whereby the application of the applicants / judgment debtors filed under Article
136 of the Limitation Act, 1963 read with Order 21 Rule 63 of CPC has been
dismissed.
2. Brief facts of the case are that the deceased Hafiz Abdul Hameed had
filed a civil suit No. 108-A/1977 against deceased Saiduddin Ansari for
ejectment and possession of the disputed plot no. 7/282 situated at Janki Park
Rewa as well as for recovery of rent and recovery of damages. The said civil
suit was decreed on 11/01/1982 and first appeal decree was passed on
09/08/1988 and second appeal decree was passed on 27/11/1990. Thereafter, an
application for execution of said decree was filed by original decree holder
namely Hafiz Abdul Hameed vide execution case No. 108-A/77/1991 and during
the pendency of the execution case, the decree holder after taking checque of
Rs.30,000/- on 22/11/1991 from the judgment debtors entered into a
compromise by executing a separate agreement and on the basis of said
agreement, decree holder and his son continue taking money from the judgment
debtors from time to time and thereafter, the said execution case no. 108-
A/77/1991 was dismissed for want of prosecution case on 05/08/1994.
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Signed by: SANTOSH
KUMAR TIWARI
Signing time: 6/26/2023
5:13:33 PM
Thereafter, MJC No. 24/1994 was filed by the decree holder for restoration of
execution case no. 108-A/77/1991, which was dismissed on 28/02/2000. After
that another MJC No. 7/2000 was filed by the decree holder for restoration of
execution case no. 108-A/77/1991, which got dismissed on 14/07/2010 by
learned execution court but learned Execution Court without having jurisdiction
granted liberty to the respondent no.1/decree holder to file fresh application for
execution of a decree. Later on, the legal representatives of original decree
holder namely Mohd. Makki had filed fresh application for execution of a
decree, vide execution case no. 108-A/77/2010. After issuance of notice, the
applicants/judgment debtors have raised preliminary objection by filing an
application under Article 136 of Limitation Act 1963 read with Order 21 Rule 63
of CPC. The respondent No.1/decree holder in his reply denied the averments
made in the said application. Said application was dismissed, vide impugned
order, which is a subject matter of challenge in the present revision petition.
3. Learned counsel for the applicants submits that the execution court
erred in not appreciating the material facts available on record in its proper
perspective. It is also submitted that on one hand, learned execution court vide
order dated 14/07/2010 dismissed the application for restoration of execution
case no. 108-A/77/1991 and on the other hand, granted liberty to the respondent
No.1/decree holder to file fresh application for execution of decree, therefore,
the impugned order is illegal, arbitrary. It is further submitted that the execution
court has filed to appreciate the provision of Article 136 of the Limitation Act
as well as the law laid down by Hon'ble Apex Court in this regard and rejected
the application filed by the applicants/judgment debtors filed under Article 136
of the Limitation Act 1963 read with Order 21 Rule 63 of the CPC. It is further
contended that the fresh application for execution of a decree was clearly filed
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Signed by: SANTOSH
KUMAR TIWARI
Signing time: 6/26/2023
5:13:33 PM
beyond the period of limitation. Article 136 of the Limitation Act, provides a
period of 12 years for filing an application for execution of a decree and the
fresh application was filed on 11/10/210, which was beyond the period of
limitation, in-spite of that the execution court passed the impugned orders dated
14/07/2010 and 16/09/2019, which are not sustainable in the eyes of law. In
support of his contentions, learned counsel for the applicants has placed
reliance on the judgment of Hon'ble Apex Court in the case of Ram Bachan
Rai and Others Vs. Ram Udai Rai and Another, 2006 AIR SCW 2894 and
the judgment passed by this Court in the case of Kiran Singh and others Vs.
Chaman Paswan and others, AIR 1954 SC 340 and in the case of
Bherulal Vs. Jamil, 2007(I) MPJR 422 and in the case of East India
Corporation Limited Vs. M/s Shree Meenaksh Mills Ltd, wherein Hon'ble
Apex Court has held that it is a fundamental principle that a decree passed by a
Court without jurisdiction is a nullity and its invalidity should be set up
whenever and wherever it is sought to be enforced or relied upon even at the
stage of execution and even in collateral proceedings and in the present case
finding recorded by the Executing Court, in its order dated 14/07/2010 is
without jurisdiction, hence, accordingly a nullity. As per settled law there is a
clear distinction between lack of initial jurisdiction and wrong exercise of
jurisdiction. If a tribunal or a court lacks in initial jurisdiction, there can be no
doubt that any decision would be a nullity and its validity could be raised
anywhere and everywhere even in collateral proceeding and in the present case
the findings recorded by the learned executing court in its order dated
14/07/2010 and order dated 16/09/2019 are based on wrong exercise of
jurisdiction and said decision would be a nullity and its validity could be raise
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Signed by: SANTOSH
KUMAR TIWARI
Signing time: 6/26/2023
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anywhere and everywhere. It is well settled law that Section 48 of the CPC was
controlled by Section 15(1) of the Limitation Act and as per Article 136 of
Limitation Act prescribed period of Limitation Act is 12 years and application
for execution can be filed any number of times within 12 years period and not
after that but in the present case, learned executing court without appreciating
the same passed the impugned order, which deserves to be set aside by this
Court to meet the ends of justice. Learned executing court committed illegality
in coming to a conclusion that the fresh application for execution of a decree
was not barred by limitation, even though the fresh application is barred by
limitation. Under these circumstances, learned counsel for the applicants prays
for setting aside of the impugned orders.
4. On the other hand, learned counsel for the respondents opposed the
contentions raised by learned counsel for the applicants by supporting the
impugned orders. Hence, he prays for dismissing the present petition.
5. I have heard learned counsel for the parties and perused the record.
6. Before proceed further, it is relevant to quote Article 136 of the Limitation
Act, which reads as under:-
" For the execution of any decree (other than a decree granting
a mandatory injunction) or order of any civil court the period of
limitation is 12 years and the time from which period begins to run
1[When] the decree or order becomes enforceable or where the
decree or any subsequent order directs any payment of money or the
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:
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Signed by: SANTOSH
KUMAR TIWARI
Signing time: 6/26/2023
5:13:33 PM
Provided that an application for enforcement or execution of a
decree granting a perpetual injunction shall not be subject to any
period of limitation."
7. It is well settled law that no court has power to revive the period of
limitation, once the original period of limitation expires meaning thereby the
court cannot revive the same by extending period of limitation beyond limits.
8. To deal with the present matter and for better appreciation of the
controversy, it is important to reproduce Section 14 of the Limitation Act as
under:
"Section 14 in The Limitation Act, 1963
14. Exclusion of time of proceeding bonafide in court without jurisdiction.
(1) In computing the period of limitation for any suit the time during which
the plaintiff has been prosecuting with due diligence another civil proceeding,
whether in a court of first instance or of appeal or revision, against the
defendant shall be excluded, where the proceeding relates to the same matter in
issue and 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.
(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.(3) Notwithstanding anything
contained in rule 2 of Order XXIII of the Code of Civil Procedure, 1908 (5 of
1908 ), the provisions of sub- section (1) shall apply in relation to a fresh suit
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Signed by: SANTOSH
KUMAR TIWARI
Signing time: 6/26/2023
5:13:33 PM
instituted on permission granted by the court under rule 1 of that Order, where
such permission is granted on the ground that the first suit must fail by reason
of a defect in the jurisdiction of the court or other cause of a like nature."
9. On a plain reading of the above provision, it is evident that the same
affords protection to a litigant who was honestly and bonafidely prosecuting a
case before a Court which had no jurisdiction. The principle underlying the said
section is based on justice, equality and good conscious to save a litigant from
getting his suit barred by limitation if he is able to satisfy the Court that he was
prosecuting his suit in a Court which lacked jurisdiction due to bona fide
reasons, but with due diligence. The following conditions thus will have to be
satisfied by a litigant who is seeking protection under Section 14 of the
Limitation Act:-
1. Both the prior and subsequent proceedings are civil proceedings
prosecuted by the same party;
2. The prior proceeding had been prosecuted with due diligence and good
faith;
3. The failure of the prior proceeding was due to defect of jurisdiction or
other cause of like nature;
4. The earlier proceeding and the later proceeding must relate to the same
matter in issue, and
5. Both the proceedings are before a court.
10. The expression "good faith" as used in Section 14 of the Limitation Act
means "exercise of due care and attention". In Ghasi Ram vs. Chait Ram
Saini (1998)6SCC200, the Hon'ble Apex Court elaborated the definition of
"good faith" as occurring in section 2(h) of the limitation Act as under:
"10. Learned Counsel appearing for the respondents urged that, assuming
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Signed by: SANTOSH
KUMAR TIWARI
Signing time: 6/26/2023
5:13:33 PM
the High Court suffered from disability to decide the rights of party on facts,
the plaintiff-appellant did not prosecute the revision petition before the High
Court in good faith; therefore, the appellant cannot derive any benefit of Section
14 of the Act. Before the High Court, it was not disputed that the plaintiff-
appellant has prosecuted the other civil proceeding with due diligence. What is
disputed is that the plaintiff did not prosecute the civil proceeding in good faith.
"Good faith" is defined in the Act as under:
2. (h) `good faith' -- nothing shall be deemed to be done in good faith
which is not done with due care and attention;
11. The aforesaid definition shows that an act done with due care and attention
satisfies the test of "good faith". "Due care" means that sufficient care was
taken so far as circumstances demanded and there was absence of negligence.
In other words, the plaintiff has taken sufficient care which a reasonable man is
expected to take in order to avoid any injury. It is not shown here that the
plaintiff- appellant has not taken sufficient care in prosecuting the remedy.
Where a plaintiff is illiterate and is not acquainted with the procedural law, the
only thing that he can do is to consult some lawyer for advice. It is not disputed
that the plaintiff-appellant filed the revision before the High Court on the advice
of his counsel, although it may be that he was ill-advised. Learned Counsel for
the respondents contended that any act done in violation of law cannot be
described as act done with due care. No doubt, when a party proceeds contrary
to a clearly expressed provision of law, it cannot be regarded as prosecuting the
other civil proceeding in good faith. It is based on sound principle of law. But
the said rule cannot be enforced in rigidity in every case. Each case has to be
judged on its own merits. In the present case, the plaintiff-appellant is not a
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Signed by: SANTOSH
KUMAR TIWARI
Signing time: 6/26/2023
5:13:33 PM
legally-trained person and thus he sought advice of his counsel for future course
of action. The counsel advised him to file revision in the High Court instead of
bringing a fresh suit under Order 21 Rule 103 CPC. It is also true that at that
time, there was no unanimity about remedy of revision amongst the various
High Courts. The plaintiff-appellant's revision was entertained for hearing by the
High Court and that gave expectation to the plaintiff- appellant that the order of
the executing court may be set aside and further, there was no inordinate delay
in filing the suit under Rule 103. If, on examining the facts, it is found that there
was no lack of due care, there is no reason why the plaintiff-appellant should
not be accorded the benefits of Section 14 of the Act. Does the interest of
justice demand that the plaintiff should be refused the benefit of Section 14 of
the Act on account of the negligence on the part of his counsel, ill-advising him
to file a revision instead of filing a fresh suit? An illiterate litigant cannot be made
to suffer when he is ill-advised by his counsel. On the facts and circumstances
of this case, we are satisfied that the plaintiff-appellant prosecuted the earlier
civil proceeding in good faith."
12. Hence, it is evident that due care has to be taken while prosecuting the suit
before a wrong forum and the plaintiff has to satisfy that he has taken sufficient
care as is expected of any prudent man in pursuing his remedy before a wrong
forum to claim the benefit of Section 14 of the Limitation Act. It is also settled
legal position that Section 14 has to be liberally construed and unless there is
sufficient material on record to come to the conclusion that the plaintiff is
dishonest and lacks good faith, he cannot be denied the benefit of Section 14 of
the Limitation Act. This has been held by the Apex Court in the case of three
bench decision in Consolidated Engg. Enterprises vs. Irrigation
Department (2008)7SCC169 wherein it was held as under:
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Signed by: SANTOSH
KUMAR TIWARI
Signing time: 6/26/2023
5:13:33 PM
"The policy of the Section is to afford protection to a litigant against the
bar of limitation when he institutes a proceeding which by reason of some
technical defect cannot be decided on merits and is dismissed. While
considering the provisions of Section 14 of the Limitation Act, proper approach
will have to be adopted and the provisions will have to be interpreted so as to
advance the cause of justice rather than abort the proceedings. It will be well to
bear in mind that an element of mistake is inherent in the invocation of Section
14. In fact, the section is intended to provide relief against the bar of limitation
in cases of mistaken remedy or selection of a wrong forum. On reading Section
14 of the Act it becomes clear that the legislature has enacted the said section to
exempt a certain period covered by a bona fide litigious activity. Upon the
words used in the section, it is not possible to sustain the interpretation that the
principle underlying the said section, namely, that the bar of limitation should
not affect a person honestly doing his best to get his case tried on merits but
failing because the court is unable to give him such a trial, would not be
applicable to an application filed under Section 34 of the Act of 1996. The
principle is clearly applicable not only to a case in which a litigant brings his
application in the court, that is, a court having no jurisdiction to entertain it but
also where he brings the suit or the application in the wrong court in
consequence of bona fide mistake or law or defect of procedure. Having regard
to the intention of the legislature this Court is of the firm opinion that the equity
underlying Section 14 should be applied to its fullest extent and time taken
diligently pursuing a remedy, in a wrong court, should be excluded."
13. From the perusal of record, it transpires that after expiration of limitation
period of 12 years provided under Article 136 of the Limitation Act, the fresh
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Signed by: SANTOSH
KUMAR TIWARI
Signing time: 6/26/2023
5:13:33 PM
application for restoration of Execution Case No. 108-A/77/1991 was filed on
28/02/2000, which was dismissed vide order dated 14/07/2010, however,
learned Executing Court without appreciating the provision of article 136 of the
Limitation Act and without having jurisdiction granted liberty to file fresh
application for execution of decree and relaxed the period, which was lapsed
d uring pendency of the old execution case, therefore, the order dated
14/07/2010 passed by Fourth Civil Judge Class II, Rewa in Execution Case No.
108-A/77/1991 deserves to be set aside. So far as the order dated 16/09/2019
passed by Third Civil Judge Class II, Rewa in Execution Case No. 108-
A/77/2010 is concerned, same is also not based on proper appreciation of
provisions of Article 136 of the Limitation Act, hence, it also deserves to be set
aside.
14. In view of foregoing discussions, in the considered opinion of this Court,
present revision petition deserves to be and is hereby allowed and impugned
orders dated 14/07/2010 and 16/09/2019 passed in Execution Case Nos. 108-
A/77/1991 and 108-A/77/2010 are hereby set aside. Meaning thereby the
execution proceedings stands times barred, therefore, the same is not
maintainable.
15. Needless to say that interim relief granted vide order dated 08/03/2021
hereby also stands vacated.
16. Let a copy of this order be sent back to the trial Court for information and
necessary compliance.
(ARUN KUMAR SHARMA)
JUDGE
Signature Not Verified
Signed by: SANTOSH
KUMAR TIWARI
Signing time: 6/26/2023
5:13:33 PM
skt
Signature Not Verified
Signed by: SANTOSH
KUMAR TIWARI
Signing time: 6/26/2023
5:13:33 PM
