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Kesho Dass Vs. Union of India and anr. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtPunjab and Haryana High Court
Decided On
Case NumberEx. First Appeal No. 633 of 1974
Judge
Reported inAIR1979P& H231
ActsLimitation Act, 1963 - Sections 31 - Schedule - Articles 136, 182 and 188; Code of Civil Procedure (CPC), 1908 - Sections 28, 48, 144 and 145 - Order 21, Rule 68; Easements Act, 1882 - Sections 15
AppellantKesho Dass
RespondentUnion of India and anr.
Cases ReferredAmar Nath v. Mul Raj
Excerpt:
.....of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - , as..........to be instituted, preferred or made for which the period of limitation prescribed by the indian limitation act, 1908, expired before the commencement of this act; or (b) affect any suit, appeal or application instituted, preferred or made before, and pending at such commencement.' according to the learned counsel, union of india could not take benefit of the new act, because of s. 31 as limitation had already expired and no application was pending at the commencement of the new act. it may be noticed here that under the indian limitation act, 1908, (hereinafter called the old act) article 182 provided the limitation of 3 years for the execution of a decree; whereas under the new act, art. 136 provides a period of 12 years for the execution of any decree or order of a civil.....
Judgment:

1. In order to appreciate the controversy between the parties, the following facts may be noticed:--

M/s. Surjit & Co. obtained a money decree against the Union of India, for a sum of Rs. 32696/2/- on 24th July, 1954. An appeal was filed in the High Court by the Union of India against the said decree in which the amount was reduced from Rs. 32696/2/- to Rs. 10570/2/-, vide its judgment and decree dated 26th Oct. 1960. Before the execution proceedings were stayed by the High Court, the decree-holder realised the decretal amount on 10th Feb., 1956, on furnishing security to the satisfaction of the Executing Court. Kesho Dass, appellant in the present appeal, stood surety for the refund of the amount in case the appeal was allowed. After the decision of the High Court, Union of India made an application under Section 144 read with S. 145 of the Civil, P. C. on 15th Dec., 1962, against both i. e. the decree-holder M/s. Surjit & Co., as well as against the surety Kesho Dass. During the pendency of that application, Kesho Dass appellant admitted the claim of the Union of India in his application dated 30th Oct., 1963, which is Exhibit DE/4, on the record. He stated in the said application that in case the amount is not realised from the decree-holder, i. e. M/s. Surjit & Co. the balance may he deducted out of a decree standing in his favour against the Union of India passed by the Court on 16th June, 1961. Consequently, the Executing Court vide its order dated 21st Dec., 1963, copy of which is Exhibit DH/3 on the record, consigned this application to the record room. On 21st July, 1964, again a second application for execution under S. 144 read with S. 145 of the Civil P. C., was made, but the same was also consigned to the record room along with the application filed on 20th August, 1964, under O. 21, R. 68 of the Civil P. C. on 7th Nov., 1964. The present application, out of which this appeal has arisen was filed on 16th April, 1970, to which Kesho Dass, surety, filed the present objection petition. The Executing Court framed the following issues on the pleadings of the parties:--

1. Whether the execution application does not lie?

2. Whether the execution application is within time?

3. Whether the execution does not lie against the objector, without executing it against the J. D.?

4. Whether the objector is not liable as alleged?

The Executing Court came to the conclusion that the objections filed by the surety are not valid. The execution application is within time and the objector Kesho Dass being liable is being properly proceeded against.

2. In this appeal filed by Kesho Dass, the main argument of the learned counsel is that the application dated 15th April, 1970, filed by Union of India, is barred by time. In support of his contention, he relied upon S. 31 of the Limitation Act, 1963, (hereinafter referred to as the new Act) which reads as under:--

'Provision as to barred or pending suits, etc.

Nothing in this Act shall,--

(a) enable any suit, appeal or application to be instituted, preferred or made for which the period of limitation prescribed by the Indian Limitation Act, 1908, expired before the commencement of this Act; or

(b) affect any suit, appeal or application instituted, preferred or made before, and pending at such commencement.'

According to the learned counsel, Union of India could not take benefit of the new Act, because of S. 31 as limitation had already expired and no application was pending at the commencement of the new Act. It may be noticed here that under the Indian Limitation Act, 1908, (hereinafter called the old Act) Article 182 provided the limitation of 3 years for the execution of a decree; whereas under the new Act, Art. 136 provides a period of 12 years for the execution of any decree or order of a Civil Court. It will also be relevant to note here that S. 48 of the Civil P. C. (prior to its repeal by the new Act) provided that no order for the execution of a decree shall be made upon any fresh application presented after the expiration of 12 years from the date of the decree sought to be executed. So under the old law, an application was to be made within three years from the date of decree under Art. 182 of the old Act, but the maximum period was 12 years, after which no fresh application could be made. In other words, any fresh application was to be made within three years from the earlier application, which was to be treated as a step in aid for the execution. The learned counsel for the appellant contended that the Union of India could only avail of the provisions of the old Act read with S. 48 of the Civil P. C. if it had made an application within three years from the last application which was consigned to the record room on 7th November, 1964. Since the present application was filed after more than three years, the same is time barred under the old Act. I am unable to agree with the learned counsel. The provisions of Section 31 are only attracted if any suit, appeal or application to be instituted, preferred or made for which the period of limitation prescribed by the old Act had expired before the commencement of the new Act. Admittedly, the period under the old Act read with S. 48 of the Civil P. C. had not expired before the commencement of the new Act as obviously the second execution application which was to be filed subsequent to 21-12-73 when the first application was consigned to the record room, cannot be said to be an application for which the period of three years provided in Art. 188 of the old Act expired before Ist Jan., 1964. Therefore, clause (a) of S. 31 is not attracted. As regards clause (b), the requirement is that an application must be pending at the commencement of the new Act. Admittedly no application as such was pending at the commencement of the Act and limitation under the old Act was still available to the Union of India under Art. 182 and therefore, clause (b) is not attracted. It will also he relevant to note here that by virtue of Section 28 of the new Act, certain amendments have been made in the Indian Easements Act, as well as in S. 48 of the Civil P. C. Section 28 reads as under:--

''Amendment of certain Acts:--In the Indian Easements Act, 1882, in Section 15, for the words 'sixty years' the words 'thirty years' shall be substituted and in the Civil P. C. 1908 Section 48 shall be omitted.''

In order to make an application after coming into force of the new Act, Union of India could only avail of the provisions of Art. 136 of the new Act. For this view, support can be had from a judgment of the Delhi High Court, reported in Daljit Singh v. Din Dayal, (1973) 75 Pun LR(D) 127; wherein it was held that the period of limitation for the next execution application has to be reckoned from that date under an Article which was in force on that date. Art. 136 of the new Act, unlike Art. 182 of the old, Act, does not provide a period of limitation for successive applications for execution of a decree. It provides a consolidated period of 12 years for the execution of a decree. In the case before the Delhi High Court also, decree was passed when the old Act was in force and the period of limitation for filing an application for execution of the decree was three years prescribed under Article 182 of that Act. Admittedly, in that case the first application was within time as required by the old Act, but the same was dismissed on 27th July, 1966. The period of limitation for the next execution application had to be reckoned from a date under an Article which was in force on that date. Admittedly, in the case in hand, the present application was filed within 12 years from the order of the High Court dated 26th Oct., 1960, and, therefore, was within limitation under Art. 136 of the new Act. The learned counsel for the appellant placed reliance on a case reported as Amar Nath v. Mul Raj AIR 1975 Punj & Har 246 (FB), in support of his contention that if the execution application was already barred by time under the old Act, the provisions of the new Act could not be invoked. Of course, it is so, as Section 31(a) of the new Act is quite clear and in the case cited above, the execution application has already become time barred before the new Act came into force. Admittedly, in the present case, Union of India had the limitation under the old Act to make a fresh application and as a matter of fact it did make an application on 21st July, 1964, after coming into force of the new Act to which no objection was taken. Under the circumstances, in my view, S. 31 of the new Act is not attracted and the application was rightly held to be within time.

3. No other point arises in this case.

4. Hence the appeal fails and is dismissed with no order as to costs.

5. Appeal dismissed.


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