Telangana High Court
G. Kaniki Reddy And 4 Others vs Bheem Reddy Died By Lrs. And 6 Others on 14 June, 2024
IN THE HIGH COURT FOR THE STATE OF TELANGANA
CIVIL REVISION PETITON No.5479 of 2017
Between:
G.Kaniki Reddy,
S/o Narsappa @ Chinna Narsappa
And four others.
... Petitioners
And
Bheem Reddy (died) by LRs.1 to 7
Narsimha Reddy,
S/o Late Bheem Reddy and seven others.
...Respondents
JUDGMENT PRONOUNCED ON 14.06.2024
HON'BLE JUSTICE LAXMI NARAYANA ALISHETTY
1. Whether Reporters of Local newspapers : Yes/No
may be allowed to see the Judgment?
2. Whether the copies of judgment may be
marked to Law Reporters/Journals? : Yes/No
3. Whether her Lordship wishes to
see the fair copy of the Judgment? : Yes/No
_______________________________________
JUSTICE LAXMI NARAYANA ALISHETTY
2
LNA, J
CRP.No.5479 of 2017
HON'BLE JUSTICE LAXMI NARAYANA ALISHETTY
CIVIL REVISION PETITON No.5479 of 2017
% 14.06.2024
Between:
# G.Kaniki Reddy,
S/o Narsappa @ Chinna Narsappa
And four others.
..... Petitioners
And:
$ Bheem Reddy (died) by LRs.1 to 7
Narsimha Reddy,
S/o Late Bheem Reddy and seven others.
....Respondents
< Gist:
> Head Note:
! Counsel for the Petitioners: Sri J.Sureseh Babu
^ Counsel for Respondents: Sri Karnam Ramesh
[[
? Cases Referred:
1. AIR 2009 Kerala 9
2. 1959 SCC OnLine Kar 25
3. MANU/MH/0489/1988
4. 1991 SCC Online Petitioner&H 202
5. 1960 SCC Online SC 149
6. AIR 1975 Bom 257
7. 1973 SCC Online Cal 76
8. 2010(4) ALT 272 (S.B.)\
9. (1999)8 SCC 315
10.(2001) 7 SCC 573
3
LNA, J
CRP.No.5479 of 2017
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
CIVIL REVISION PETITON No.5479 of 2017
ORDER:
Heard Sri J.Suresh Babu, learned counsel for the revision
petitioners, and Sri Karnam Ramesh, learned counsel for the
respondents. Perused the entire material available on record.
2. This Revision Petition is filed challenging the order, dated
04.12.2009, passed by the Senior Civil Judge, Narayanpet in
CFR.No.542 of 2007 in unregistered E.P., whereby the EP was
dismissed at the threshold.
3. The revision petitioners are the decree holders/plaintiffs and
the respondents are the judgment debtors/defendants.
4. The facts of the case, if narrated in a narrow compass, which
are necessary for disposal of this Revision Petition, are that the suit
in O.S.No.132 of 1992 filed for declaration of title and recovery of
possession of the suit schedule property was decreed ex parte on
23.09.1994. Subsequently, on 16.11.2007, the decree holders filed
E.P. under Order XXI Rule 35 CPC seeking execution of the
LNA, J
decree passed in the said O.S. i.e., for delivery of the suit schedule
property to them.
4.1. The office of the Executing Court took an objection as to
the maintainability of the said EP as the same was filed after 12
years from the date of passing of the judgment in the said O.S.
Thereupon, as can be seen from the impugned order, lengthy
arguments were advanced by the learned counsels for the decree
holders as well as the judgments debtors and the trial Court, upon
considering the limitation prescribed under Article 136 of the
Limitation Act, 1963, observed that the decree holders ought to
have filed Execution Petition within a period of 12 years from the
date of passing of the judgment i.e., on or before 24.09.2006, but
they have filed Execution Petition on 16.11.2007 and accordingly,
held that the Execution Petition is not maintainable and dismissed
the same at the threshold. Hence, the present Revision Petition.
5. Learned counsel for the petitioners/decree holders contended
that though the judgment was pronounced on 23.09.1994, the
decree in the said suit was signed by the Presiding Officer on
12.06.2007 and therefore, the limitation starts from 12.06.2007;
LNA, J
that the Executing Court went wrong in computing the period of
limitation from 23.09.1994 and hence, he prayed to allow this
Revision Petition.
6. Learned counsel for the petitioners relied upon the following
judgments:-
1. Sasi v. R.S. Devadas 1
2. Chanabasappa v. Narasing Rao Gunde Rao 2
3. Bharat Chandulal Nanavati & Ors. v. United Commercial
Bank 3
4. Harbant Kaur v. Amar Singh & Ors 4
5. Jagat Dhish Bhargava v. Jawahar Lal Bhargava 5
6. Subash Ganpatrao Buty v. Maroti 6
7. Ram Krishna Tarafdar v. Nemai Krishna Tarafdar 7
8. Udayagiri Ramija Begum & Anr. v. Mulla Ali Baig & Anr 8
AIR 2009 Kerala 9
1959 SCC OnLine Kar 25
MANU/ MH/ 0489/ 1988
1991 SCC Online P&H 202
1960 SCC OnLine SC 149
AIR 1975 Bom 257
1973 SCC OnLine Cal 76
2010 (4) ALT 272 (S.B.)
LNA, J
7. On the other hand, learned counsel for the respondents
contended that the Executing Court had rightly applied the law of
limitation to the facts of the present case and dismissed the EP at
the threshold and therefore, the impugned order does not warrant
interference by this Court.
8. In support of his contentions, learned counsel for the
respondents relied upon the decisions of the Hon'ble Apex Court in
W.B. Essential Commodities Supply Corporation Vs Swadesh
Agro Farming & Storage (P) Limited9 and Hameed Joharan Vs.
Abdul Salam 10.
9. This Court has given its earnest attention to the arguments
advanced by learned counsel for both the parties and gone through
the judgments cited by learned counsel for both the parties.
10. The undisputed facts of the case are that ex parte decree was
passed against the defendants/respondents herein in O.S.No.132 of
1992 on 23.09.1994; that the defendant filed I.A.No.567 of 1994
seeking to set aside the ex parte decree; that by order, dated
09.07.1999, the said I.A. was allowed subject to certain conditions;
(1999) 8 SCC 315
(2001) 7 SCC 573
LNA, J
that time for compliance of such condition was extended by the
trial Court till 08.10.1999; that on administrative grounds, the suit
was transferred to the Sub Court at Narayanpet; subsequently,
I.A.No.174 of 1999 (formerly I.A.No.567 of 1994) was dismissed,
vide order dated 31.03.2006; that against the said dismissal order,
the defendants filed Revision Petition, vide CRP.No.2264 of 2006
before this Court on 09.06.2006; that interim stay of execution of
the ex parte decree was granted by this Court in CRP and the said
interim order was in force from 09.06.2006 to 20.11.2006, i.e., for
a period of five (5) months eleven (11) days; and subsequently, the
said CRP was dismissed by this Court, vide order dated
20.11.2006.
11. The plaintiffs filed Copy Application for obtaining certified
copy of the decree in the suit on 20.11.2006; that on 24.11.2006,
the office returned the said Copy Application with an endorsement
that the decree in the said suit was not available in record when it
was received from the Munsif Court; that subsequently, the decree
was signed and engrossed on 12.06.2007 and it was delivered to
LNA, J
the plaintiffs on 14.06.2007; and that the EP for execution of the
decree was filed by the plaintiffs on 16.11.2007.
12. The trial Court dismissed the EP filed by the plaintiff at the
threshold observing that the E.P. was filed after twelve (12) years
from the date of passing of the judgment in the said suit.
13. Now, it has to be seen whether the E.P. was filed within the
period of limitation as stipulated under the Limitation Act.
14. For better appreciation of the period of limitation, it is useful
to reproduce Article-136 of the Limitation Act, 1963, which reads
as under:-
Description of Period of Limitation Time from which period
application begins to run
For execution of Twelve years (When) the decree or order
decree(other than becomes enforceable or
decree granting where the decree or any
mandatory subsequent order directs any
injunction) or payment of money or the
order of any Civil delivery of any property to be
Court made at a certain date or at
recurring periods. when
default in making the
payment of 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
LNA, J
of limitation.
15. In Chanabasappa's case (cited supra), the High Court of
Karnataka held as under:-
"On a careful consideration of the above rulings as well as on
the interpretation of the section itself it appears that the
provisions of section 12(2) of the Limitation Act admit of two
periods of time for exclusion:
(1) the period from the date of the judgment up to the
date of the signing of the decree;
(2) the period from the date of application for, copy to
the date when the copy is ready for delivery."
15.1. It was further held as under:-
".... The court would have to consider whether any of the
time taken up for preparation of the decree could be
attributed to the default or negligence of the appellant. If
the appellant is responsible for any of the time so
required, then it cannot be held that period of time was
properly required and that period could not be excluded
in his favour under section 12(2).
In the case on hand, nearly three months were
occupied from the date of judgment before the decree was
actually signed. It is not alleged that any act on the part of
the appellant was necessary for the drawing up of the
decree. The whole of the period was taken by the Court
LNA, J
itself for which the party cannot be held in any way
responsible."
16. In Jagat Dhish Bhargava's case (cited supra), the Hon'ble
Supreme Court at para-11 of the judgment held as under:-
".....The position, therefore, is that when the certified copy
of the decree was filed by the respondents in the High
Court on December 23, 1959, the whole of the period
between the date of the application for the certified copy
and the date when the decree was actually signed would
have to be excluded under Section 12 sub-section (2).
The failure of the trial court to draw up the decree
as well as the failure of the relevant department in the
High Court to examine the defect in the presentation of
the appeal at the initial stage have contributed
substantially to the present unfortunate position. In such a
case there can be no doubt that the litigant deserves to be
protected against the default committed or negligence
shown by the Court or its officers in the discharge of their
duties."
17. From the above judgments, it is evident that the High
Court of Karnataka in Chanabasappa's case (cites supra) held that
the period from the date of the judgment up to the date of the
signing of the decree has to be excluded.
LNA, J
18. Further, in Jagat Dhish Bhargava's case (cited supra), the
Hon'ble Supreme Court held that the litigant deserves to be
protected against the default committed or negligence shown by the
Court or its officers in the discharge of their duties, i.e., in drawing
up the decree and accordingly, held that the whole of the period
between the date of the application for the certified copy and the
date when the decree was actually signed would have to be
excluded under Section 12 sub-section (2).
19. In the instant case, though on 20.11.2006, the plaintiffs
filed Copy Application for obtaining certified copy of decree in the
suit which was decreed on 23.09.1994, the decree was got duly
signed and engrossed by the office on 12.06.2007 and was
delivered to the plaintiffs on 14.06.2007, i.e., after a period of 6
months 24 days.
20. Further, admittedly, the time taken for preparation of the
decree could not be attributed to the default or negligence on the
part of the plaintiffs. The office of the trial Court has returned the
copy application filed by the plaintiffs seeking to supply certified
copy of the decree on 24.11.2006 with an endorsement that the
LNA, J
decree was not available in record when the case was received
from the Munsif Court. Therefore, there was negligence or default
committed by the Court in drawing up the decree for which the
plaintiffs should not be penalized and in fact, the plaintiffs deserve
to be protected against such negligence or default committed by the
Court or its officers in discharge of such duties.
21. Therefore, in the light of the principle laid down in
Chanabasappa's case (cited supra), in the instant case, the period
of 6 months 24 days which occurred in obtaining the decree is
required to be excluded while computing the period of limitation.
22. That apart, in the case on hand, the suit was decreed ex
parte was passed on 23.09.1994. However, interim stay granted by
this Court in CRP.No.2264 of 2006 was in operation from
09.06.2006 to 20.11.2006 i.e., for a period of five months and eight
days.
23. It is also pertinent to note that initially, the ex parte order
dated 23.09.1994 passed in the suit was set aside subject to certain
conditions from 09.07.1999 to 08.10.1999 i.e., for a period of three
months.
LNA, J
24. If the aforesaid two periods are summed up, it comes to
fifteen (15) months two (2) days and the said period has to be
excluded while computing the period of limitation.
25. Thus, in all a period of 15 months 2 days has to be
excluded while computing the period of limitation for filing the
Execution Petition.
26. Undisputedly, the suit was decree ex parte on 23.09.1994
and therefore, as per Article 136 of the Limitation Act, the
Execution Petition should have been filed on or before 23.09.2006.
But, in the instant case, the E.P. was filed on 16.11.2007.
27. However, in the light of the principle laid down by the
Hon'ble Apex Court and various High Courts in the
aforementioned judgments and in view of the facts and
circumstances of the case and the aforesaid discussion, a period of
15 months 2 days has to be excluded in computing the limitation
period. Applying the same, this Court holds that the E.P. filed by
the plaintiffs is within the period of limitation and the E.P deserves
to be entertained.
LNA, J
28. For the foregoing reasons, this Court is of the considered
view that the impugned order passed by the trial Court is liable to
be set aside.
29. Accordingly, the Civil Revision Petition is allowed, setting
aside the order, dated 04.12.2009, passed by the Senior Civil
Judge, Narayanpet in CFR.No.542 of 2007 in unregistered E.P and
the trial Court is directed to register the E.P. and dispose the same
in accordance with law as expeditiously as possible. No costs.
30. Pending miscellaneous applications, if any, shall stand
closed.
_____________________________________
JUSTICE LAXMI NARAYANA ALISHETTY
Date:14.06.2024
dr
