IN THE HIGH COURT OF JUDICATURE AT PATNA

CIVIL MISCELLANEOUS JURISDICTION No.340 of 2023

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1.Kanhaiya Singh, S/o Late Badri Nath Singh, Resident of Village- Pasiwad,

Pipra, P.O.-Chand Parsa, Police Station- Hasanpura, District- Siwan.

2.Leelawati Devi, w/o Late Brijraj Singh, resident of Chitaur, P.S.- Andar,

Distt.-Siwan.

3.Amit Kumar Singh, S/o Late Brijraj Singh, resident of Chitaur, P.S.- Andar,

Distt.- Siwan.

4.Seema Devi, W/o Rajesh Singh, village- Karamen, P.S.- Gauri Bazar, Distt.-

Dewariya, Uttar Pradesh.

5.Meera Devi, W/o- Ajay Singh, resident of Village- Rakauli, P.S. Aswan,

Distt.- Siwan.

6.Anil Kumar Singh, S/o- Late Brijraj Singh, resident of Chitaur, P.S.- Andar,

Distt.- Siwan

7.Ajay Kumar Singh, S/o late Brijraj Singh, resident of Chitaur, P.S.- Andar,

Distt.- Siwan

8.Indrawati Devi, W/o- Sardul Singh, resident of village- Labakani, P.S. Gauri

Bazar, Distt. Dewariya, Uttar Pradesh.

... ... Petitioner/s

Versus

1.Paras Nath Singh, S/o Late Rajeshwar Singh resident of village- Pipra, P.S.-

M.H. Nagar, district- Siwan.

2.Fateh Bahadur Singh, S/o Late Rajeshwar Singh, resident of village- Pipra,

P.S.- M.H. Nagar, District- Siwan.

3.Ram Kishore Singh, S/o Late Rajeshwar Singh, resident of village- Pipra,

P.S. M.H. Nagar, District- Siwan.

... ... Respondent/s

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Appearance :

For the Petitioner/s: Mr. Janardan Prasad Singh, Sr. Advocate

Mr.Dipak Kumar, Advocate

For the Respondent/s: Mr. Nagendra Rai, Advocate

Mr.Satyapal Singh, Advocate

Mr. Rajnish Kumar Choubey, Advocate

Mr. Navin Nikunj, Advocate

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CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA

ORAL JUDGMENT

Date : 25-01-2024

Heard learned senior counsel appearing on behalf of

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the petitioners and learned counsel for the respondents on the

point of admission and I intend to dispose of the instant petition

at the stage of admission itself.

2. The instant petition has been filed by the judgment

debtors-petitioners challenging the order dated 07.02.2023

passed by learned Subordinate Judge-1, Siwan in Execution

Case No.3/2017, Reg.No.24/2017 whereby and whereunder the

petition filed by the judgment debtor-petitioners for rejection of

the execution case, as barred by limitation, has been rejected.

3. The case of the judgment-debtors/petitioners as it

appears from the records is that one Raj Ballabh Singh filed

Title Suit No.147/1985 for specific performance of contract

against Madan Gopal Singh and Smt. Parwati Devi. After death

of said Raj Ballabh Singh, the present respondent no.1, who is

power of attorney holder of the daughter and wife of Raj

Ballabh Singh, became plaintiff. The petitioners are the

descendants of Madan Gopal Singh, who was the original

defendant No. 1 in the suit. On 08.05.1995, the learned

Subordinate Judge Ist, Siwan heard the suit ex-parte under

Order 8 Rule 10 of the Code of Civil Procedure (hereinafter

referred to as ‘the Code’) and allowed the suit in favour of the

plaintiff, directing the plaintiff to pay the balance amount of Rs.

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12,000/- to the defendant No. 2 within 3 months from the date

of order and the defendant No. 2 was directed to execute a sale

deed of the suit property in favour of the plaintiff, failing which

the same was to be done by the process of the court and at the

cost of defendant. However, the decree in Title Suit No.

147/1985 was passed on 27.05.1995. Thereafter, the judgment-

debtors/petitioners filed Misc. Case No. 15/1995 for recalling

the aforesaid ex-parte judgment, which was dismissed for non-

prosecution on 22.08.1998. However, during pendency of

aforesaid Misc. Case No. 15/1995, the respondents filed a

petition seeking liberty from depositing the balance money till

pendency of the miscellaneous case, which was allowed vide

order dated 11.10.1996. Thereafter, the judgment-

debtors/petitioners filed Misc. Case No. 29/1995 for restoration

of Misc. Case No.29/1995, which was allowed vide order dated

26.06.2014 and the Misc. Case No. 15/1995 was restored. On

09.03.2017, the judgment-debtors/petitioners filed a petition for

withdrawal of Misc. Case No. 15/1995, which was allowed vide

order dated 15.04.2017, as a result of which, the Misc. Case

No.15/1995 was dismissed as withdrawn. Thereafter, after 22

years of passing of the decree, on 12.06.2017, the Execution

Case No. 03/2017 was filed by the respondents, in which, the

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judgment-debtors/petitioners filed their rejoinder dated

03.05.2019 and in paragraph Nos. 3 to 6, the judgment-

debtors/petitioners have taken a plea that the execution case was

barred by law of limitation and hence, the same was fit to be

dismissed. The respondents-decree holder also filed their reply

on 02.08.2019 in which they have taken a plea that they were

given liberty to deposit the balance consideration amount after

disposal of Misc. Case No. 15/1995 and, as such, due to

pendency of miscellaneous case, they did not file the execution

case and hence, their execution was not barred by law of

limitation and the objection filed by the judgment-

debtors/petitioners was fit to be dismissed. The learned

Subordinate Judge-1, Siwan, after hearing the parties, dismissed

the objection petition filed on behalf of judgment-

debtors/petitioners in Execution Case No.3/2017 vide order

dated 07.02.2023. Aggrieved by the said order of the learned

trial court, the judgment-debtors/petitioners have filed the

instant petition. The petitioners are the judgment-debtors,

whereas the respondents are the decree-holders and for

convenience, I will use the terms Judgment-debtors (JDs) and

Decree-holders (DHs) for the petitioners and the respondents,

respectively

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4. The learned senior counsel appearing on behalf

of the JDs submits that the JDs are the descendants of the

original defendant no.1 in the suit. The JDs appeared and filed

their written statement, but unfortunately, their counsel did not

appear in subsequent date and the suit was decreed ex-parte.

The learned senior counsel further submits that Misc. Case No.

29/1998 remained pending for 16 years, but no order staying the

execution of the decree was passed in Title Suit No. 147/1985

nor any execution case was filed till then. The learned senior

counsel further submits that Title Suit No. 147/1985 was

decided ex-parte and judgment and decree were passed on

08.05.1995 and 27.05.1995, respectively and no execution case

for executing the said decree has been filed within the period of

limitation, i.e., within 12 years. Furthermore, there was no stay

of the execution proceedings by any court. The learned senior

counsel further submits that the DHs filed the execution case

after 22 years from the date of passing of the decree without any

legal excuse, which is hopelessly barred under Section 136 of

Indian Limitation Act. The learned senior counsel further

submits that there is no provision of law to condone such delay.

The learned senior counsel further submits that the DHs filed a

petition seeking liberty from depositing the balance amount till

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pendency of the Misc. Case No.15/1995 after expiry of three

months period and no extension was sought earlier by the DHs

from the court and liberty granted by the learned Subordinate

Court was without authority and it was an illegal order. The

learned senior counsel further submits that this issue of time

barred execution and equity has been decided by the Hon’ble

Apex Court in the case of Raghunath Rai Bareja v. Punjab

National Bank, reported in (2007) 2 SCC 230, wherein it has

been held that when there is a conflict between law and equity, it

is the law which will prevail. Paragraph 29 is relevant which

reads as under :

“29. Learned counsel for the respondent Bank

submitted that it will be very unfair if the

appellant who is a guarantor of the loan, and

Director of the Company which took the loan,

avoids paying the debt. While we fully agree

with the learned counsel that equity is wholly

in favour of the respondent Bank, since

obviously a bank should be allowed to recover

its debts, we must, however, state that it is well

settled that when there is a conflict between

law and equity, it is the law which has to

prevail, in accordance with the Latin maxim

“dura lex sed lex”, which means “the law is

hard, but it is the law”. Equity can only

supplement the law, but it cannot supplant or

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override it”.

5. On similar proposition, the decision of this Court

in the case of Laxmi Rai Vs. Sanjai Bhattacharya, reported in

2012 (2) PLJR 547, has been relied upon. The learned senior

counsel further places his reliance on the judgment in the case

of Hameed Joharan (d) Ors. vs. Abdul Salam (d) & Ors.,

reported in 2002 (1) PLJR (SC) 6: (2001) 7 SCC 573 on the

point of limitation. In this case, stamp duty was paid beyond the

limitation period and the Hon’ble Apex Court held that it was

the date on which that stamp was paid was relevant and not the

date when it was applied for as it was within the power of the

decree holder to purchase the stamp earlier and submit the same.

Relevant paragraphs 13 to 15 and 34 read as under :

“13. Article 136 of the Act of 1963 prescribes as

noticed above, a twelve-year period certain and

what is relevant for Article 136 is, as to when the

decree became enforceable and not when the

decree became executable. The decision of the

Calcutta High Court in Biswapati case [AIR 1972

Cal 172] has dealt with the issue very succinctly

and laid down that the word “enforceable”

should be read in its literal sense. In the

contextual facts, the final decree upon acceptance

of the Report of the Commissioner was passed on

20-11-1970, while it is true that notice to furnish

stamp paper was issued on 28-2-1972 and the

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time granted was up to 17-3-1972 but that by

itself will not take it out of the purview of Article

136 as regards the enforceability of the decree.

Furnishing of stamp paper was an act entirely

within the domain and control of the appellant

and any delay in the matter of furnishing of the

same cannot possibly be said to be putting a stop

to the period of limitation being run —no one can

take advantage of his own wrong: as a matter of

fact, in the contextual facts, no stamp paper was

filed until 26-3-1984 — does that mean and imply

that the period of limitation as prescribed under

Article 136 stands extended for a period of twelve

years from 26-3-1984? The answer if it be stated

to be in the affirmative, would lead to an utter

absurdity and a mockery of the provisions of the

statute. Suspension of the period of limitation by

reason of one's own failure cannot but be said to

be a fallacious argument, though, however,

suspension can be had when the decree is a

conditional one in the sense that some extraneous

events have to happen on the fulfilment of which

alone it could be enforced — furnishing of

stamped paper was entirely in the domain and

power of the decree-holder and there was nothing

to prevent him from acting in terms therewith and

thus it cannot but be said that the decree was

capable of being enforced on and from 20-11-

1970 and the twelve-year period ought to be

counted therefrom. It is more or less in an

identical situation, this Court even five decades

ago in the case of Yeshwant Deorao Deshmukh v.

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Walchand Ramchand Kothari [1950 SCC 766 :

AIR 1951 SC 16 : 1950 SCR 852] has stated:

(AIR p. 18, para 5)

“The decree was not a conditional one in the

sense that some extraneous event was to happen

on the fulfilment of which alone it could be

executed. The payment of court fees on the

amount found due was entirely in the power of

the decree-holder and there was nothing to

prevent him from paying it then and there; it

was a decree capable of execution from the very

date it was passed.”

14. Needless to record that engrossment of

stamped paper would undoubtedly render the

decree executable but that does not mean and

imply, however, that the enforceability of the

decree would remain suspended until furnishing

of the stamped paper — this is opposed to the

fundamental principle on which the statutes of

limitation are founded. It cannot but be the

general policy of our law to use the legal

diligence and this has been the consistent legal

theory from the ancient times: even the doctrine

of prescription in Roman law prescribes such a

concept of legal diligence and since its

incorporation therein, the doctrine has always

been favoured rather than claiming disfavour.

Law courts never tolerate an indolent litigant

since delay defeats equity — the Latin maxim

vigilantibus et non dormientibus jura subveniunt

(the law assists those who are vigilant and not

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those who are indolent). As a matter of fact,

lapse of time is a species for forfeiture of right.

Wood, V.C. in Manby v. Bewicke [(1857) 3 K&J

342 : 69 ER 1140] (K&J at p. 352) stated: (ER p.

1144)

“The legislature has in this, as in every civilized

country that has ever existed, thought fit to

prescribe certain limitations of time after which

persons may suppose themselves to be in peaceful

possession of their property, and capable of

transmitting the estates of which they are in

possession, without any apprehension of the title

being impugned by litigation in respect of

transactions which occurred at a distant period,

when evidence in support of their own title may be

most difficult to obtain.”

15. Recently this Court in W.B. Essential

Commodities Supply Corpn. v. Swadesh Agro

Farming & Storage (P) Ltd. [(1999) 8 SCC 315]

had the occasion to consider the question of

limitation under Article 136 of the Limitation Act of

1963 and upon consideration of the decision in the

case of Yeshwant Deorao [1950 SCC 766 : AIR

1951 SC 16 : 1950 SCR 852] held that under the

scheme of the Limitation Act, execution

applications like plaints have to be presented in

court within the time prescribed by the Limitation

Act. A decree-holder, this Court went on to record,

does not have the benefit of exclusion of the time

taken for obtaining even the certified copy of the

decree like the appellant who prefers an appeal,

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much less can he claim to deduct time taken by the

court in drawing up and signing the decree. In fine,

this Court observed that if the time is reckoned not

from the date of the decree but from the date when

it is prepared, it would amount to doing violence to

the provisions of the Limitation Act as well as of

Order 20 and Order 21 Rule 11 CPC, which is

clearly impermissible.

34. Be it noted that the legislature cannot be

subservient to any personal whim or caprice. In

any event, furnishing of engrossed stamp paper for

the drawing up of the decree cannot but be

ascribed to be a ministerial act, which cannot

possibly put under suspension a legislative

mandate. Since no conditions are attached to the

decree and the same has been passed declaring the

shares of the parties finally, the Court is not

required to deal with the matter any further —

what has to be done — has been done. The test

thus should be — has the Court left out something

for being adjudicated at a later point of time or is

the decree contingent upon the happening of an

event — i.e. to say the Court by its own order

postpones the enforceability of the order — in the

event of there being no postponement by a specific

order of the Court, there being a suspension of the

decree being unenforceable would not arise. As a

matter of fact, the very definition of decree in

Section 2(2) of the Civil Procedure Code lends

credence to the observations as above since the

term is meant to be “conclusive determination of

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the rights of the parties”.

6. Thus, the learned senior counsel for the JDs

submits that it was well within the power of the plaintiff-decree

holder to make payment of the balance money and file the

execution, but he slept over the matter for more than 20 years.

The learned senior counsel further submits that during the

pendency of those two miscellaneous cases, at no point of time,

there was any stay of the execution. The decree was passed on

27.05.1995 and the rest money was to be deposited on

27.08.1995. The learned senior counsel, thus, submits that the

impugned order is illegal and without jurisdiction and the same

be set aside.

7. Per contra, the learned counsel for the DHs

vehemently contends that this civil miscellaneous application

under Article 227 of the Constitution of India is not

maintainable on the ground of amended Section 115 of the Code

and remedy for the JDs was only to file a civil revision under

Section 115 of the Code. The learned counsel submits that if the

applications of the JDs were allowed by the learned executing

court, that would have been the end of the matter and it would

have disposed of the case before the learned executing court. So,

against such order, only a revision under Section 115 of the

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Code would lie and this Court could not exercise its supervisory

jurisdiction under Article 227 of the Constitution of India when

the impugned order was revise-able under Section 115 of the

Code. On this aspect, the learned counsel relies on two decisions

of the Hon’ble Supreme Court; Surya Dev Rai vs. Ram

Chander Rai and Ors. [(2003) 6 SCC 675] and Durga Devi v/s

Vijay Kumar Poddar & Ors. (2010 (2) PLJR 954).

8. The learned counsel further submits that the

decree has not become time barred. Judgment in the case was

delivered on 08.05.1995. The suit was decreed ex-parte on

27.08.1995. The JDs filed Misc. Case No.15/1995 for setting

aside the ex-parte decree, which was dismissed for default on

22.08.1998. While this miscellaneous case was pending, the

DHs filed a petition to keep the direction for depositing the

balance consideration money in abeyance during the pendency

of the miscellaneous case and that was allowed by the learned

court below vide order dated 11.10.1996 in presence of the JDs,

but this order was never challenged. Thereafter, Misc. Case

No.15/1995 which was dismissed for default on 22.08.1998,

was restored on 26.06.2014. But ultimately it was withdrawn by

the JDs on 15.04.2017 and soon thereafter, the DHs have filed

Execution Case No.03/2017 on 12.06.2017. With regard to the

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effect of the order dated 11.10.1996, the learned counsel submits

that this order is very crucial for deciding this matter as the

same was never challenged and by this order the DHs were

exempted from depositing the balance amount. On this point,

the learned counsel has attracted the attention of this Court to

the provisions of Section 28 of the Specific Relief Act, which

reads as under:

“28. Rescission in certain

circumstances of contracts for the sale or lease of

immovable property, the specific performance of

which has been decreed.—

(1) Where in any suit a decree for

specific performance of a contract for the sale or

lease of immovable property has been made and

purchaser or lessee does not, within the period

allowed by the decree or such further period as the

court may allow, pay the purchase money or other

sum which the court has ordered him to pay, the

vendor or lessor may apply in the same suit in

which the decree is made, to have the contract

rescinded and on such application the court may, by

order, rescind the contract either so far as regards

the party in default or altogether, as the justice of

the case may require.

(2) Where a contract is rescinded under

sub-section (1), the court—

(a) shall direct the purchaser or lessee,

if he has obtained possession of the property under

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the contract, to restore such possession to the

vendor or lessor, and

(b) may direct payment to the vendor or

lessor of all the rents and profits which have

accrued in respect of the property from the date on

which possession was so obtained by the purchaser

or lessee until restoration of possession to the

vendor or lessor, and, if the justice of the case so

requires, the refund of any sum paid by the vendee

or lessee as earnest money or deposit in connection

with the contract.

(3) If the purchaser or lessee pays the

purchase money or other sum which he is ordered

to pay under the decree within the period referred

to in sub-section (1), the court may, on application

made in the same suit, award the purchaser or

lessee such further relief as he may be entitled to,

including in appropriate cases all or any of the

following reliefs, namely—

(a) the execution of a proper conveyance

or lease by the vendor or lessor;

(b) the delivery of possession, or

partition and separate possession, of the property

on the execution of such conveyance or lease.

(4) No separate suit in respect of any

relief which may be claimed under this section shall

lie at the instance of a vendor, purchaser, lessor or

lessee, as the case may be.

(5) The costs of any proceedings under

this section shall be in the discretion of the court”.

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9. The learned counsel thus submits that period,

allowed by the decree or such further period as the court may

allow, means it can be allowed even after expiry of the period

which has been granted. The court does not become functus

officio and it has power to grant extension even after expiry of

the period. The learned counsel further submits that order was

quite appropriate and it was never assailed. The period can be

extended by the original court, it can be extended by the

appellate court as well and it can be extended even after

disposal of the appeal. On this aspect, he has placed reliance on

the decision of the Hon’ble Supreme Court in the case of

Ramankutty Guptan v. Avara reported in AIR 1994 SC 1699 :

(1994) 2 SCC 642.

10. Learned counsel for the DHs also submits that Misc.

Case No. 29 of 1995 was filed immediately after dismissal for

default of Misc. Case No.15/1995 and it was restored in the year

2014. Once the miscellaneous case is restored, entire case is

revived and all orders stand revived.

11. The learned counsel further submits that so far as

the question of limitation is concerned, it will commence when

the decree becomes enforceable. In this context, he has placed

reliance on the judgment in the case of Hameed Joharan (d)

(supra) especially para 4 & 34. Paragraph 34 has already been

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quoted hereinabove and paragraph 4 reads as under :

“4. Presently, Article 136 of the Limitation Act,

1963 prescribes a period of twelve years for the

execution of a decree other than a decree granting

a mandatory injunction or order of any civil court.

As regards the time from which the period of twelve

years ought to commence, the statute has been

rather specific in recording that the period would

commence from the date of the decree or order

when the same becomes enforceable. We need not

go into the other situations as envisaged in the

statute for the present purpose, save what is noticed

above. To put it shortly, it, therefore, appears that a

twelve-year period certain has been the legislative

choice in the matter of execution of a decree. Be it

noted that corresponding provisions in the Act of

1908 were in Articles 182 and 183 and as regards

the statutes of 1871 and 1877, the corresponding

provisions were contained in Articles 167, 168, 169

and 179, 180 respectively. Significantly, Article 182

of the Limitation Act of 1908 provided a period of

three years for the execution of a decree. Be it

clarified that since the reference to the 1908 Act

would be merely academic, we refrain ourselves

from recording the details pertaining to Article 182

save what is noted hereinbefore. It is in this context,

however, the Report of the Law Commission on the

Act of 1963 assumes some importance, as regards

the question of limitation and true purport of

Article 136. Before elaborating any further, it would

be convenient to note the Report of the Law

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Commission which reads as below:

“170. Article 182 has been a very fruitful source of

litigation and is a weapon in the hands of both the

dishonest decree-holder and the dishonest

judgment-debtor. It has given rise to innumerable

decisions. The commentary in Rustomji's Limitation

Act (5th Edn.) on this article itself covers nearly

200 pages. In our opinion the maximum period of

limitation for the execution of a decree or order of

any civil court should be 12 years from the date

when the decree or order became enforceable

(which is usually the date of the decree) or where

the decree or subsequent order directs any payment

of money or the delivery of any property to be made

at a certain date or at recurring periods, the date of

the default in making the payment or delivery in

respect of which the applicant seeks to execute the

decree. There is, therefore, no need for a provision

compelling the decree-holder to keep the decree

alive by making an application every three years.

There exists a provision already in Section 48 of the

Civil Procedure Code that a decree ceases to be

enforceable after a period of 12 years. In England

also, the time fixed for enforcing a judgment is 12

years. Either the decree-holder succeeds in

realising his decree within this period or he fails

and there should be no provision enabling the

execution of a decree after that period. To this

provision an exception will have to be made to the

effect that the court may order the execution of a

decree upon an application presented after the

expiration of the period of 12 years, where the

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judgment-debtor has, by fraud or force, prevented

the execution of the decree at sometime within the

twelve years immediately preceding the date of the

application. Section 48 of the Civil Procedure Code

may be deleted and its provisions may be

incorporated in this Act. Article 183 should be

deleted….

In pursuance of the aforesaid recommendation, the

present article has been enacted in place of Articles

182 and 183 of the 1908 Act. Section 48 of the Code

of Civil Procedure, 1908 has been repealed.”

12. The learned counsel for the DHs further

submits that in a decree for specific performance, there are

three stages. First the decree holder has to deposit the money,

thereafter, he has to get the sale deed executed and then delivery

of possession is to be made. Vide order dated 11.10.1996, in the

very first stage, the learned court below kept that deposit of

money in abeyance. Therefore, the very first stage did not

commence till 15.04.2017. As this order was passed in presence

of the parties and it was never contested, so, the order is

binding on the parties. Due to liberty granted, the decree became

enforceable in the present case only on 15.04.2017. He has

further placed reliance on Section 15 of the Limitation Act for

exclusion of time in certain cases in computing the period of

limitation for any suit or application for the execution of the

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decree, the institution or execution of which has been stayed by

an injunction or order. The learned counsel further submits that

though three decisions have been cited on behalf of the JDs, but

all the decisions referred to Article 136 and in all it has been

held that the date of commencement is from the date of

enforceability. The judgments relied upon by the JDs, i.e.,

Raghunath Rai Bareja & Anr. (supra) as well as Laxmi Rai

(supra) are distinguishable on facts as neither in these two

cases, there was a suit for specific performance nor there was

any interim order like the present one. Lastly, he has placed

reliance on one judgment of this Court in the case of Uma

Shankar Sharma vs. State of Bihar and Anr. reported in 2005

1 PLJR 541 wherein the Court held that the decree of the courts

below became enforceable when the second appeal was

dismissed. The learned counsel further submits that in the

present case, the decree became enforceable only after dismissal

of the Misc. Case No.15/1995 on 15.04.2017.

13. In reply, the learned senior counsel appearing on

behalf of the JDs submits that the petition under Article 227 of

the Constitution of India is maintainable since the provisions of

Section 115 of the Code cannot curtail the power of the court.

The learned senior counsel further submits that merely change

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in nomenclature would not take away the jurisdiction of this

Court. The civil revision under Section 115 of the Code would

also lie before this Court in its revisional jurisdiction as well as

the present civil miscellaneous petition under Article 227 of the

Constitution of India. Moreover, the civil miscellaneous petition

is maintainable even when the remedy is also available under

Section 115 of the Code. On this aspect, reliance has been

placed on the decision of this Court in Arun Kumar Vs. Smt.

Shyampati Kuer and Ors. (2017(2) PLJR 958) wherein the

Division Bench decision of this Court in the case of Durga

Devi (supra) was also referred to. Furthermore, in the present

facts and circumstances of the case, the learned counsel stresses

that a petition under Article 227 is maintainable.

14. The learned senior counsel appearing on behalf of

the JDs further submits that much emphasis has been placed on

the order passed in miscellaneous case permitting DHs to

deposit the rest amount after disposal of Misc. Case

No.15/1995. If the said proposition is held to be legal, this

miscellaneous case was dismissed on 22.08.1998 and when it

was dismissed, DHs were required to deposit the amount.

Regarding extension of time for payment of purchase money,

the learned senior counsel submits that the liberty may be

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legally or illegally granted and even though it was not opposed,

still that liberty was only up-to 28.08.1998. When the Misc.

Case No. 15/1995 was dismissed, then the DHs should have

deposited the money. If the limitation started running after

dismissal of the miscellaneous case in 1998, it expired in the

year 2010 and as no money was deposited, as such, execution

became barred by limitation. One thing is also very important

that this is a suit for specific performance of contract in which

readiness and willingness is very important. This very petition

for extension of time to deposit the rest amount makes it clear

that the DHs were not ready to make payment in terms of the

decree. Another decision which has been cited by the learned

counsel for the JDs is the case of Sri Chandra Mouli Deva vs.

Kumar Binoya Nand Singh & Ors. reported in 1976 PLJR

331. Paragraph nos. 4 & 5 read as under:-

“4. Admittedly the Article applicable for recovery of

the decretal amount is Article 136 of the Act. This

Article corresponds to Article 182 of the Old

Limitation Act. It will be useful to quote these Articles.

Article 136 of the Act and Article 182 of the old

limitation Act, run as follow:—

ACT OF

1963,

ART. 136

“136. For the Twelve When the decree or order becomes

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execution of any

decree (other

than a decree

granting a

mandatory

injunction) or

order of any

civil court.

years. 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-

Provided that an application for

the enforcement or execution of

the decree granting a perpetual

injunction shall not be subject

to any period of limitation.

ACT OF

1908.

ART. 182

‘182. For the

execution of a

decree or order

of any civil court

not provided for

by Article 183 or

by Section 48 of

the Code of Civil

Procedure 1908.

Three

years; or

where a

certified

copy of

the decree

or order

has been

registered

, six

years.

1. The date of the decree or

order, or

2. (Where there has been an

appeal); the date of the final

decree or order of the Appellate

Court, or the withdrawal of the

appeal, or

3. (Where there has been a

review of judgment) the date of

the decision passed on the

review, or

4. (Where the decree has been

amended) the date of

amendment, or

5. (Where the application next

hereinafter mentioned has been

made) the date of the final order

passed on an application made

in accordance with law to the

proper court for execution or to

take some step in aid of

execution of the decree or order,

or

6. in respect of any amount,

recovered by execution of the

decree or order, which the

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decree-holder has been directed

to refund by a decree passed in

a suit for such refund the date of

such last mentioned decree or,

in the case of an appeal

therefrom, the date of the final

decree of the appellate court or

of the withdrawal of the appeal,

or

7. (Where the application is to

enforce any payment which the

decree or order directs to be

made at a certain date) such

date.

5. Learned counsel for the appellant first

contended that under the new Article limitation

begins to run from the day the decree becomes

enforceable whereas under Article 182 of the Old

Limitation Act, 1908, time ran from the date of the

decree. He further contended that the decree

became enforceable after the decree was sealed

and signed. If this argument is accepted, then the

execution has been levied within 12 years and,

therefore, is not barred by limitation. Learned

counsel for the respondents, on the other hand,

submitted that the change “from the date of the

decree” to when the decree becomes enforceable,

does not alter the position in so far as the present

decree is concerned. He contended that by virtue of

Rule 7 of Order XX of the Code of Civil Procedure,

the date of the decree is the date of the judgment

and the decree became enforceable immediately

after the judgment was pronounced. He, therefore,

contended that the execution case has been rightly

held to be barred by limitation. Learned counsels

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in support of their arguments have cited cases

decided by this Court as also by the Calcutta High

Court. Before I deal with those cases, it will be

fruitful to see as to why Article 182 of the

Limitation Act, 1908 was replaced by the new

Article 136 of the Act.”

15. The Division Bench of this Court held that Section

5 of the Limitation Act does not apply to the proceeding under

Order 21 of the Code. The learned senior counsel, thus, submits

that 12 years period cannot be extended even for a day and it

started running on 08.05.1995 and it expired on 08.05.2007 and

in worst case on 21.08.2010. The learned senior counsel submits

that by the effect of withdrawal or the effect of dismissal as

withdrawn, the entire interlocutory orders passed in that

miscellaneous case became non-est. It has no meaning and

moreover, this order was passed in the miscellaneous case for

recalling the ex parte decree and not in a separate proceeding

instituted by the DHs for extension of time period.

16. Having regard to the rival submissions of the

parties, the issues which arise for consideration may be

summarized as under :

(i) When the limitation started running in

the present case and when the decree

became enforceable?

(ii) Whether the opportunity granted vide

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order dated 11.10.1996 could be said to be

an order under Section 28 of the Specific

Relief Act and what is scope of Section 28 in

cases of such nature?

(iii) Whether the present petition is

maintainable?

17. Before embarking upon the matter, it would be

useful to recollect the facts of the case. The judgment in the case

was delivered on 08.05.1995 and decree was prepared on

27.05.1995. Misc. Case No.15/1995 for setting aside the ex-

parte decree was filed in 1995 and in the said miscellaneous

case, the aforesaid liberty was granted vide order dated

11.10.1996. Misc. Case No.15/1995 was dismissed for default

on 22.08.1998 and it was subsequently restored on 26.06.2014.

The JDs withdrew their miscellaneous case on 15.04.2017 and

execution case was filed on 12.06.2017.

18. Now, Article 136 of the Limitation Act provides

that limitation period of 12 years for execution of any decree

(other than decree granting the mandatory injunction) and the

period will start running when the decree becomes enforceable.

The Division Bench of this Court in the case of Sri Chandra

Mouli Deva (supra) has held that Section 5 of the Limitation

Act is not applicable in execution proceeding. Section 15 of the

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Limitation Act provides for exclusion of time in certain situation

and it grants exclusion of time when the execution of a decree

has been stayed by injunction or order.

19. The learned counsel for the DHs have contended

that when the learned trial court granted liberty to the DHs from

payment of the due amount during the pendency of the

miscellaneous case, it impliedly stayed the execution of the

decree. So, the time would not start running and it remained

stayed during the pendency of Misc. Case No.15/1995 till its

withdrawal on 15.04.2017.

Furthermore, Section 28 of the Specific Relief Act

has been relied upon by the counsel for the DHs to fortify his

argument that it was within the power of the learned trial court

to extend the time for making the payment.

I find the argument of learned counsel for the DHs to

be fallacious. Section 15 of the Limitation Act is in the form of

exception whereas, general rule is Section 5 which excludes

admittance of any application under any of the provisions of the

Order 21 of the Code after the period prescribed by the Act

which makes it clear that time prescribed by the Act cannot be

extended under any circumstances under Section 5 of the

Limitation Act. Only in certain condition, time period can be

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excluded.

20. Much stress has been put on liberty given by the

court in Misc. Case No.15/1995. According to the DHs, the said

liberty means the time period for making payment towards

specific performance of the contract got extended. On the other

hand, it has been contended on behalf of the JDs that the time

lapsed prior to its extension. However, in the decision relied on

Ramankutty Guptan (supra), the Hon’ble Supreme Court in

paragraph 4 has held that in a suit a decree for specific

performance of a contract for the sale of immovable property

has been made and time has been prescribed for performance, it

should be complied within time. On its default, power has been

given to the court that passed the decree to further extend the

time as the court may allow and the purchase money or any

other sum be paid within the extended time. It means the time

period could be extended even after lapse of the time period

prescribed in the decree by the same court. However, the

remedy under Section 28 (1) of the Specific Relief Act for

extension of time would require the affected party to approach

the same court by moving application which ought to be treated

an interlocutory application on the original side and ought to

have been disposed of in accordance with law. It is not that any

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application filed in miscellaneous case by the JDs for setting

aside the ex-parte decree would serve the same purpose. So, the

order passed by the learned court below was highly irregular. In

any case such extension could not stop the limitation from

running.

21. Even if for argument sake, it is presumed that the

order dated 11.10.1996 was a valid extension, the same came to

an end on 22.08.1998 when the miscellaneous case was

dismissed for default. So, there was no order staying the

payment by the DHs till 26.06.2014. If the decree became

enforceable on 22.08.1998, the period of 12 years will

eventually come to an end on 21.08.2010. There is no

explanation by the DHs for not preferring their execution case

during this period. The DHs cannot take shelter of the fact that

the miscellaneous case was restored on 26.06.2014 and the

limitation would revive from the beginning. So, the contention

of the learned counsel for the DHs that the decree became

enforceable only in the year 2017 is not correct. Hence, the

contention of the learned counsel for the DHs is rejected. Even

the decision in the case of Hameed Joharam (supra) makes it

very much clear that the term ‘when decree becomes enforceable’

should be read in its literal sense. Taking analogy from the same

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case that the payment of balance amount was within the domain

and control of the DHs and any delay in the matter of furnishing

of the same cannot possibly be said to be putting stop to the

period of limitation being run and no one can take advantage of

his own wrong. So, no right accrued to the DHs and the decree

was never kept in abeyance. Moreover, in a contract for specific

performance, time is essence and when the decree holders did

not move diligently and did not show his willingness to perform

his part of commitment, it goes on to show the incapacity on

part of the DHs to perform their obligation and reflects a lack of

readiness and willingness and such conduct would come under

the purview of Section 16 of the Specific Relief Act. He cannot

even claim equity. In any case, the law would always trump

equity and reliance could be placed on the Hon’ble Supreme

Court in the case of Raghunath Rai Bareja (supra).

22. So far as issue of maintainability is concerned, I

think it is non-issue. Where there is availability of remedy under

Section 115 of the Code, the civil miscellaneous petition under

Article 227 of the Constitution of India would normally not lie.

But it could not be said that a civil miscellaneous petition under

Article 227 of the Constitution of India shall not be

maintainable at all. The difference and distinction between the

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entertainability and maintainability was considered by the

Hon’ble Supreme Court in the case of Raj Shri Agarwal @

Ram Shri Agarwal and another vs. Sudheer Mohan and Ors.,

reported in 2022 SCC OnLine Sc 1775, wherein it was held that

the remedy under Article 227 of the Constitution of India is a

constitutional remedy and in a given case the Court may not

exercise the power under Article 227 of the Constitution of

India, if in its opinion, the aggrieved party has another

efficacious remedy available under the CPC. But to say that the

writ petition under Article 227 of the Constitution of India shall

not be maintainable at all is not tenable. Once the matter came

up before this Court and the same was heard, relegating the

petitioners/JDs for filing another petition under Section 115 of

the Code is simply unwarranted and would result in wastage of

time if this Court could entertain the petition under Article 227

of the Constitution of India.

23. In the light of the discussions made here-in-above,

I think the learned trial court committed an error when it

rejected the application of the JDs against time barred execution

proceeding of the DHs and hence, the impugned order dated

07.02.2023 passed by the learned Subordinate Judge-1, Siwan in

Execution Case No.3/2017 is not sustainable and, as such, the

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same is set aside. Consequently, the application dated

21.06.2019, filed by the JDs for rejection of the execution case

as barred by limitation, is allowed.

24. With the aforesaid observations/directions, the

instant petition stands allowed.

V.K.Pandey/-

(Arun Kumar Jha, J)

AFR/NAFR A.F.R.

CAV DATE N.A.

Uploading Date 29.01.2024

Transmission Date N.A.