2024 INSC 259 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO………………..OF 2024

(Arising out of Special Leave Petition (Civil) No.17665 of 2018)

PURNI DEVI & ANR. … APPELLANT(S)

VERSUS

BABU RAM & ANR. … RESPONDENT(S)

J U D G M E N T

SANJAY KAROL, J.

Leave Granted.

2.The present appeal arises from the final judgment and order in Civil

Revision No.33/2008 dated 09.04.2018 of the High Court of Jammu and Kashmir

at Jammu, whereby the judgment and order of Munsiff, Hiranagar, in File No.

70/Execution dated 28.11.2007 came to be affirmed, wherein the execution

application preferred by the Plaintiff herein was dismissed, being barred by

limitation.

Factual History

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3.The genesis of the case at hand dates back to 01.06.1984, wherein the

predecessors in interest of the Appellant (hereinafter “Plaintiff”) filed a suit for

possession against the Respondents (hereinafter “Defendants”) herein. On

10.12.1986, this suit was decreed by learned Munsiff, First Class Hiranagar, in

favour of the Plaintiff, and the Defendants were directed to deliver vacant and

peaceful possession of the property to the Plaintiff. This decree was challenged by

the Respondents before the learned District Judge, Kathua, in First Appeal, which

came to be dismissed on 09.02.1990. Thereafter, the Respondents preferred a

Second Appeal before the High Court of Jammu and Kashmir which came to be

dismissed vide Order dated 09.11.2000. No further appeal was preferred.

Therefore, the decree of the learned Munsiff Court attained finality on

09.11.2000.

4.The present lis arises from the application for execution filed by the

predecessor in interest of the Plaintiff, before the learned Tehsildar (Settlement),

Hiranagar on 18.12.2000. This application came to be rejected on 29.01.2005,

whereby the learned Tehsildar observed that the Plaintiff had not applied before

the Court with appropriate jurisdiction.

5.The Plaintiff thereafter, on 03.10.2005 preferred a fresh application for

execution before the Court of Munsiff, Hiranagar. This application resulted in the

order dated 28.11.2007, whereby, the learned Munsiff Court dismissed the

application as being barred by limitation, which has come to be confirmed vide

the impugned order.

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Reasoning of the Courts below

Munsiff Court, Order dated 28.11.2007

6.The question framed for determination was whether the execution petition

was filed within time and whether the period of limitation for filing the execution

petition is 3 years or 12 years.

7.The Court after a careful perusal of Article 182 of the J&K Limitation Act

(which provides for 3 years) and Section 48 of the Civil Procedure Code (which

provides for 12 years, hereinafter “CPC”), observed that, Article 182 deals with

period of Limitation for filing an execution application for the first-time seeking

enforcement of a decree. Meanwhile, Section 48 of the CPC deals with

subsequent applications and fixes an outer limit when execution remains

unsatisfied.

8.The application was held to be required to be filed within 3 years, as

required by Article 182 of the J&K Limitation Act, which would run from when

the second appeal came to be dismissed. Accordingly, the Munsiff Court,

Hiranagar, held the application to be time-barred and therefore, dismissed.

9.There was no argument or discussion about the exclusion of time period

under Section 14 of the Limitation Act at this stage.

10.The Plaintiff preferred Civil Revision No.33/2008 against the aforesaid

order which came to be dismissed vide the Impugned Order, dated 09.04.2018.

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Impugned Order

11.The Impugned Order also framed the question as to whether for execution

of a decree, the application has to be filed within 12 years as prescribed by

Section 48 of the CPC or within 3 years as prescribed by Article 182 of J&K

Limitation Act.

12.Reliance was placed on a judgment rendered by the High Court in J&K

Bank Limited etc. v. Amar Poultry Farm

1

wherein it was observed that

limitation for the first execution application shall be governed by Article 182 of

the J&K Limitation Act. Further reliance was placed on the judgment of this

Court in Prem Lata Agarwal v. Lakshman Prasad Gupta and others

2

(2-Judge

Bench) wherein Section 48 of the CPC came to be considered. This Court

observed that Section 48 provides for a maximum time limit provided for

execution, but it does not prescribe the period within which each application for

execution was to be made.

13.The argument of the Plaintiff that time spent in pursuing the proceedings

before the Tehsildar is required to be excluded, has been recorded and rejected by

the High Court.

14.It was finally held vide the Impugned Order that the dismissal of the

execution petition is well reasoned and, therefore, cannot be interfered with.

1 AIR 2007 J&K 56

2 (1970) 3 SCC 440

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However, while disposing off the revision, the Court observed that the State Code

of Civil Procedure is required to be brought to 12 years.

Submissions on behalf of the Appellant/ Plaintiff

15.Learned counsel for the Plaintiff has submitted that the reasoning of the

learned High Court that the Plaintiff had chosen a wrong forum and is not

entitled to exclusion of time runs, contrary to the law laid down by this Court

that the provisions of Section 14 of the Limitation Act, 1963 are meant for grant

of relief, where a person has committed some mistake and such provisions

should be applied in a broad manner. Furthermore, the provision of Section 14

of the Limitation Act is para materia to the provisions of Section 14 of the

Limitation Act, as applicable to the then State of Jammu and Kashmir.

16.The Plaintiff has sought to place reliance on the judgment of this Court in

Consolidated Engg. Enterprises v. Principle Secy, Irrigation Department

3

(3-

Judge Bench) and M.P. Steel Corporation v. CCE

4

(2-Judge Bench) wherein it

was expounded that the provisions of Section14 of the Limitation Act are to

advance the cause of justice and must be interpreted to do so rather than abort

proceedings.

17.It has been further submitted that in light of the facts of the present case,

the Plaintiff is entitled to exclusion of time consumed in pursuing their remedy

before the learned Tehsildar, in view of Section 14(2) of the Limitation Act. The

filing of the application by the predecessor of the Plaintiff before the Tehsildar

3 (2008) 7 SCC 169

4 (2015) 7 SCC 58

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for implementation of the judgment and decree dated 09.10.1986 was under a

genuine bona fide belief and in good faith that the Tehsildar possess the

jurisdiction to execute decrees passed by a Civil Court.

18.In lieu of this conspectus, it has been submitted that previous recourse to a

mistaken remedy or selection of a wrong forum by the Plaintiff cannot be said to

be bereft of bona fides, due diligence or lacking in good faith.

19.Further, it is not disputed that in view of Section 105 and 112 of the Land

Revenue Act, the Court of learned Tehsildar, Settlement, has all the trappings of

a Court and thus would fall within the scope and ambit of the expression

“Court” for the purpose of Section14 of the Limitation Act.

20.Lastly, in view of the facts submitted above, it would be a travesty of

justice, if, on mere technicalities, the Plaintiff is deprived from reaping the fruits

of the decree.

Submissions on behalf of the Respondent

21.Learned counsel for the Respondents has vehemently opposed the stand

taken by the Plaintiff. It has been submitted that the Plaintiff is taking this plea

for the first time before this Court and did not raise the plea of Section 14 of the

Limitation Act before the Courts below.

22.It was a deliberate act of wilful disobedience at the Plaintiff's end and the

plea of Section 14 of the Limitation Act ought to have been raised at the very

first instance.

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23.It is further submitted that the Plaintiff herein has not approached the

Court with clean hands. They have concealed the fact that they did not enter

appearance in the Second Appeal and thereafter, had filed an application for

setting aside the ex-parte order, which was allowed, and only thereafter, the

second appeal was dismissed vide the impugned order. This Court in M.P. Steel

(Supra) has reiterated that ‘due diligence’ and ‘good faith’ means that the party

who invokes Section 14 is not guilty of negligence, lapse or inaction.

Issue before this Court

24.In view of the submissions raised, the issue which arises for consideration

of this Court is as to whether the period (18.12.2000 to 29.01.2005) diligently

pursuing execution petition before the Tehsildar, would be excluded for the

purposes of computing the period of limitation or not.

Analysis & Consideration

25.The relevant portion of Section 14 of the Limitation Act is extracted as

under, for ready reference:

“Section 14. Exclusion of time of proceeding bona fide in court

without jurisdiction. …

…

(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.”

….

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26.The Plaintiffs have submitted that the provision of Section14 of the

Limitation Act, finds place in the Limitation Act applicable to the then State of

J&K, which has not been contested by the Respondents.

27.On a perusal of Section 14(2) of the Limitation Act, which is also

applicable to the State of Jammu and Kashmir, it is evident that it carves out an

exception excluding the period of limitation when the proceedings are being

pursued with due diligence and good faith in a Court “which from defect of

jurisdiction or other cause of a like nature, is unable to entertain it”.

28.The first objection raised by Defendants is that the plea of exclusion of

limitation has not been raised before the Courts below and cannot be raised at

the first instance before this Court.

29.We do not find merit in this submission, the learned High Court in

paragraph 9 has categorically recorded the submission of the Plaintiff pertaining

to the exclusion of time spent in pursuing the proceedings before the learned

Tehsildar. Therefore, it cannot be said that the plea of exclusion has been raised

for the first time, before this Court.

30.The principles pertaining to applicability of Section 14, were extensively

discussed and summarised by this Court in Consolidated Engg. Enterprises

(Supra), wherein while holding the exclusion of time period under Section 14 of

the Limitation Act to a petition under Section 34 of the Arbitration Act it was

observed:-

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“21. Section 14 of the Limitation Act deals with exclusion of time

of proceeding bona fide in a court without jurisdiction. On analysis of

the said section, it becomes evident that the following conditions must

be satisfied before Section 14 can be pressed into service:

(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 in 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 latter proceeding must relate to

the same matter in issue; and

(5) Both the proceedings are in a court.”

31.This Court in Consolidated Engg. Enterprises (Supra) further expounded

that the provisions of this Section, must be interpreted and applied in a manner

that furthers the cause of justice, rather than aborts the proceedings at hand and

the time taken diligently pursuing a remedy, in a wrong Court, should be

excluded.

32. In the present case, it is not in dispute that:-

(i)Both the proceedings are civil in nature and have been

prosecuted by the Plaintiff or the predecessor in interest.

(ii)The failure of the execution proceedings was due to a defect of

jurisdiction.

(iii)Both the proceedings pertain to execution of the decree dated

10.12.1986, which attains finality on 09.11.2000.

(iv)Both the proceedings are in a court.

33.The only objection pointed out by the Respondent to the ingredients for

invocation of Section 14, is that the Plaintiff have not approached this Court

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with clean hands and did not approach the Court of the Tehsildar diligently and

in good faith.

34.The judgment of this Court in M.P. Steel (Supra) discussed the phrases,

“due diligence” and “in good faith” for the purposes of invocation of Section 14

of the Limitation Act. While considering the application of Section 14 to the

Customs Act, it was observed:

“10. We might also point out that Conditions 1 to 4 mentioned in the

Consolidated Engg. case [(2008) 7 SCC 169] have, in fact, been met

by the Plaintiff. It is clear that both the prior and subsequent

proceedings are civil proceedings prosecuted by the same party. The

prior proceeding had been prosecuted with due diligence and in good

faith, as has been explained in Consolidated Engg. [(2008) 7 SCC 169]

itself. These phrases only mean that the party who invokes Section

14 should not be guilty of negligence, lapse or inaction. Further,

there should be no pretended mistake intentionally made with a

view to delaying the proceedings or harassing the opposite party.

xxx xxx xxx

49. ……. the expression “the time during which the plaintiff has

been prosecuting with due diligence another civil proceeding”

needs to be construed in a manner which advances the object

sought to be achieved, thereby advancing the cause of justice.”

(emphasis supplied)

35.The judgments in Consolidated Engg. Enterprises (Supra) and M.P. Steel

(Supra) have been followed consistently by this Court. For instance in Sesh

Nath Singh v. Baidyabati Sheoraphuli Coop. Bank Ltd.

5

(2-Judge Bench),

while holding Section 14 to be applicable to applications under Section 7 of the

Insolvency and Bankruptcy Code, 2016 and the SARFAESI Act, it was

observed:-

5 (2021) 7 SCC 313

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“75. Section 14 of the Limitation Act is to be read as a whole. A

conjoint and careful reading of sub-sections (1), (2) and (3) of Section

14 makes it clear that an applicant who has prosecuted another civil

proceeding with due diligence, before a forum which is unable to

entertain the same on account of defect of jurisdiction or any other

cause of like nature, is entitled to exclusion of the time during which

the applicant had been prosecuting such proceeding, in computing the

period of limitation. The substantive provisions of sub-sections (1), (2)

and (3) of Section 14 do not say that Section 14 can only be invoked

on termination of the earlier proceedings, prosecuted in good faith.”

36.More recently, in Laxmi Srinivasa R and P Boiled Rice Mill v. State of

Andhra Pradesh and Anr.

6

(2-Judge Bench), this Court followed the dictum in

Consolidated Engg. Enterprises (Supra) and M.P. Steel (Supra) to exclude the

time period undertaken by the Plaintiff therein in pursuing remedy under Writ

Jurisdiction, in the absence of challenge to the bona fides of the Plaintiff, in

view of Section 14.

37.No substantial averment has come on record to substantiate the claim that

the predecessor in interest of the Plaintiff approached the Tehsildar with any

mala fide intention, in the absence of good faith or with the knowledge that it

was not the Court having competent jurisdiction to execute the decree. The

object to advance the cause of justice, as well must be kept in mind.

38.We do not find the reasoning given by the learned High Court in

paragraph 9 while rejecting the plea for exclusion of time to be sustainable. On a

perusal of the record, it is apparent that the Plaintiff has pursued the matter

bonafidely and diligently and in good faith before what it believed to be the

appropriate forum and, therefore, such time period is bound to be excluded when

6 2022 SCC Online SC 1790

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computing limitation before the Court having competent jurisdiction. All

conditions stipulated for invocation of Section 14 of the Limitation Act are

fulfilled.

39.Therefore, in view of the above discussion the period from 18.12.2000,

when the execution application was filed to 29.01.2005, when the prior

proceeding was dismissed, has to be excluded while computing period of

limitation, which results in the execution application filed by the Plaintiff, being

within the limitation period prescribed under Article 182 of the Limitation Act as

well, which is 3 years.

40.Consequently, the appeal is allowed. The impugned order of the High

Court dated 09.04.2018 and Munsiff Court, Hiranagar dated 28.11.2007 are set

aside. The execution application of the Plaintiff is restored to the file of the

Munsiff Court, Hiranagar for fresh consideration, in consonance with the view

on limitation which has been decided above.

41. Pending applications, if any, are disposed of. No order as to costs.

…………………………..J.

(SANJAY KAROL)

……………………………J.

(ARAVIND KUMAR)

April 02, 2024

New Delhi

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