Branch Manager, Central Bank of India and Another Vs M/s. A.M. Brothers and Others

@JUDGMENTTAG-ORDER

Chakradhari Sharan Singh, J.@mdashThe present appeal under Clause 10 of Letters Patent of Patna High Court has been preferred by the Branch Manager, Central Bank of India, Muradpur, Patna challenging the order dated 18.1.2010 passed by the learned Single Judge in CWJC No. 10884/2009 (M/s. A.M. Brothers, Gobind Mitra Road, P.S.-Pirbahore, District-Patna vs. Union of India & Others). By the impugned order the learned Single Judge held that the order passed in Execution Case (OA) 12 of 2006 by the learned Presiding Officer of the Debt Recovery Tribunal at Patna condoning the delay in filing the Execution Case was beyond the jurisdiction as Section 5 of the Limitation Act is not applicable to such execution petition. The facts are admitted and are short. The respondent No. 1 is the writ petitioner who had applied to the Muradpur branch of Central Bank of India for cash credit loan, whereupon the cash credit limit of Rs. 50,000/- (Rupees fifty thousand) was sanctioned in his favour by the appellant-Bank on 8.4.1981. The respondent No. 1 defaulted in making the payment of installments and the cash credit amount became irregular. A demand for payment of a sum of Rs. 1,30,442.42 was made by the appellant-Bank through a demand notice served on respondent No. 1 by registered post on 12.11.1986. As the respondent No. 1 did not make payment in spite of service of demand notice, the Bank filed a Money Suit No. 150/1987 in the Court of Sub-Judge-IX, Patna for realization of the said amount. The suit was heard ex-parte and decreed on 8.6.1992. On 19.6.1992 the decree was prepared and notified and on 22.6.1992 the decree was sealed and signed (Annexure-1 to the writ petition). The Bank thereafter did not take any step for execution of the said decree dated 8.6.92 immediately thereafter. This is also not in dispute that respondent No. 1 filed a Miscellaneous case vide Misc. Case No. 15/92 under Order IX Rule 13 of the CPC to set aside the ex-parte judgment and decree dated 8.6.1992. The said Miscellaneous case ultimately came to be dismissed on 4.12.1999 as would appear from the petition filed by the Bank before the Debt Recovery Tribunal, Patna u/s 5 of the Limitation Act for condoning the delay (Annexure-3 to the writ petition).

2. Nearly 14 years after the date of decree the respondent filed Execution Case No. 12 of 2006 alongwith a petition for condoning the delay u/s 5 of the Limitation Act, 1963. The respondent No. 1 opposed the execution petition and the limitation petition also, on the ground that the same was not maintainable being time barred, as Section 5 of the Limitation Act, 1963 had no application to execution petition. The Presiding Officer, Debt Recovery Tribunal, Patna, however, vide impugned order dated 29.6.2009 allowed the application for condoning the delay observing that considerable procedural delay in the process of decision making was a common feature and, therefore, certain amount of latitude was not impermissible. The learned Presiding Officer observed that if the appeals brought by the State are lost for such default, no person would be individually affected but in ultimate analysis the public interest would suffer.

3. The said order dated 29.6.2009 was challenged by the respondent No. 1 by way of filing CWJC No. 10884/2009 with a plea that execution case itself was not maintainable being barred by limitation and, further, that Section 5 of the Limitation Act, 1963 had no application to Article 136 of the schedule to the Limitation Act. Learned Single Judge, placing reliance upon following judgments of the Apex Court held that Debt Recovery Tribunal had no jurisdiction and power to condone the delay in execution case:--

(i) State of Punjab and Others Vs. Bhatinda District Coop. Milk P. Union Ltd., .

(ii) West Bengal Essential Commodities Supply Corporation Vs. Swadesh Agro Farming and Storage Pvt. Ltd. and Another, .

(iii) Dr. Chiranji Lal (D) by LRs. Vs. Hari Das (D) by LRs., .

4. Reliance was also placed upon a. Division Bench judgment of this court reported in Sri Chandra Mouli Deva Vs. Kumar Binoya Nand Singh and Others, .

5. This order of learned Single Judge has been assailed in the present Letters Patent Appeal by the appellant, Branch Manager, Central Bank of India, Muradpur, Patna.

6. Mr. Ajay Kumar Sinha, learned counsel for the appellants has submitted, inter alia, that admittedly the respondent No. 1 had filed Misc. Case No. 15/1992 which was dismissed on contest vide order dated 4.12.1999 and, therefore, the execution petition filed on behalf of the Bank in 2006 could not be said to be time barred as it was within 12 years from the date of dismissal of the Misc. case. Explaining the delay in filing the execution case, it was contended on behalf of the Bank that the concerned file got misplaced and after the same could be traced the Bank recalculated the amount of decree as per the decree aforesaid, which came to be more than Rs. 10,00,000/- and accordingly the execution case before the Debt Recovery Tribunal, Patna was filed on 5.5.2006 vide O.A. (Execution Case No. 12/2006) which alone had the jurisdiction to execute the decree. Learned counsel for the appellant-Bank contended that the decretal amount was public money. The respondent No. 1 did not contest the suit and was dishonestly raising technical plea of limitation. Learned counsel further submitted that the writ petition was not maintainable as respondent No. 1 had alternative remedy under the Recovery of Debts Due to Bank and Financial Institutions Act, 1993 (hereinafter referred to as the Act) which according to him was equally efficacious.

7. Learned counsel for the appellants has submitted that the execution case filed by the appellant was not barred by limitation since the decree became executable in the eye of law only on. 4.12.1999 when the Misc. case filed by the respondent No. 1 for setting aside the decree under Order 9, Rule 13 of the CPC was dismissed since the same was filed within 12 years from that date.

8. Learned counsel for the respondent No. 1, Mr. Arbind Kumar Jha, on the other hand, has submitted that in view of the law laid down by the. Apex Court in the judgments, referred to in the order of learned Single Judge, Section 5 of the Limitation Act had no application to execution petition and maximum period prescribed for filing execution petition in terms of Article 136 to the schedule of the Limitation Act could not be extended. He further submits that the judgment and decree became enforceable on the date when it was passed and remained executable throughout till completion of 12 years as there was no stay of such decree during this period. He has, with reference to the judgment reported in Ram Bachan Rai and Others Vs. Ram Udar Rai and Others, , submitted that date of dismissal of the application for setting aside the decree under Order 9, Rule 13 of the CPC could be not said to be the date for determination of the period of limitation for execution of the decree.

9. In view of rival submissions advanced on behalf of contesting parties and in view of admitted facts following issues emerged for determination in this case:--

(i) Whether Section 5 of the Limitation Act excludes admittance of any application under any of the provisions of Order 21 of the CPC after the period prescribed by the Act.

(ii) In the facts and circumstances of the present case what would be the date from which the period of limitation is to be counted, that is, whether such date should be the date of ex parte judgment and decree or the date of dismissal of application for setting aside the ex parte decree under Order 9, Rule 13 of the Code of Civil Procedure.

(iii) Whether the learned Single Judge rightly rejected the plea raised on behalf of the appellant-Bank against maintainability of the writ petition on the ground of availability of alternative remedy under the Act.

10. So far the first issue is concerned, it is no more res Integra and it has been held by a Division Bench of this court in most unequivocal terms in the case of Chandra Mouli Deva (supra) that Section 5 of the Limitation Act excludes admittance of any application under any of the provisions of Order 21 of the Code of Civil Procedure. Thus, if an application for execution of a decree is filed beyond 12 years from the date when the judgment or decree becomes enforceable, the same cannot be maintained, as time prescribed under the Limitation Act cannot be extended. The Apex Court in the case of West Bengal Essential Commodities Corporation (supra) has held that Section 5 of the Limitation Act has no application to a petition under Article 136 of the Limitation Act for execution of a decree.

11. In view of this, now the submission on behalf of the appellants that the period of limitation would start from the date when the Misc. case was dismissed is to be tested in the light of various judgments of the Apex Court which have been referred to hereinabove.

12. The proposition needs no reiteration that the decrees or orders become enforceable immediately after they are made unless they are required to be enforced on some future date or on happening of certain specified event. The decree comes into existence immediately on pronouncement of the judgment. Article 136 to the schedule of the Limitation Act provides 12 years as time for execution of decree or order of any civil court when the decree or order becomes enforceable. In the case of West Bengal Essential Commodities Supply Corporation (supra) the Apex Court held that a decree holder does not have the benefit of exclusion of the time taken even for obtaining certified copy of the decree. For the benefit of quick reference paragraph 20 of the said judgment is being quoted hereinbelow:--

Under the scheme of the Limitation Act execution applications, like plaints have to be presented in the Court within the time prescribed by the Limitation Act. A decree holder does not have the benefit of exclusion of the time taken for obtaining the certified copy of the decree like the appellant who prefers an appeal, much less can he claim to deduct time taken by the Court in drawing up and signing the decree. In this view of the matter, the High Courts of Patna and Calcutta, in the case of Sri Chandra Mouli Deva Vs. Kumar Binoya Nand Singh and Others, and Sunderlal and Sons Vs. Yagendra Nath Singh and Another, , have correctly laid down the law; the opinion to the contra expressed by the High Court of Calcutta in Ram Krishna Tarafdar Vs. Nemai Krishna Tarafdar and Others, is wrong. Section 5 of the Limitation Act has no application; Section 12(2) of the Limitation Act is also inapplicable to an execution petition. 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 XX and Order XXI, Rule 11 C.P.C. which is clearly impermissible.

13. The judgment of Apex Court in the case of Ram Bachan Rai (supra) applies in the present case and answers the plea taken on behalf of appellants as regards the date from which the period of limitation would run. In the case of Ram Bachan Rai (supra) the suit was decreed ex parte. The ex parte decree was passed on 3.5.1976. The judgment-debtors filed an application under Order 9, Rule 13 of the CPC for setting aside the ex-parte decree which was dismissed for default on 14.7.1978. The said application was not restored by the trial court and Misc. Appeal filed also stood dismissed on 10.1.1987. The Civil Revision application filed against the order of dismissal was also dismissed on 6.4.1987. At no stage, any stay was granted by any court. The decree holders filed an application for execution on 5.4.1991. The Apex Court has held that the period of limitation is not to be reckoned from the date of dismissal of the Civil Revision rather from the date when the decree becomes enforceable. Paragraph 9 of the judgment is being quoted hereinbelow for quick reference:--

In view of the said decision, the inevitable conclusion is that the executing court was not correct in its view. It is to be noted that learned counsel for the respondents conceded to the position that the period of limitation is not to be reckoned from the date of dismissal of the civil revision which was filed relating to rejection of the application under Order 9, Rule 13 CPC. The entire focus was on the date from which the period of limitation is to be reckoned. Reliance was placed on a decision of the Calcutta High Court in Ramnath Das vs. Sana Chowdhury and Co. Ltd. where it was held that the decree was enforceable and (sic) when cost is assessed. The ratio in the said judgment clearly runs counter to what has been stated in Dr. Chiranji Lal case.

14. Similar view has been taken by the Apex Court in the case of Bimal Kumar and Another Vs. Shakuntala Debi and Others, , wherein considering various previous decisions, it held in paragraph 45 as follows:--

Thus analysed, the reasons ascribed by the learned Single Judge are absolutely unsustainable. The period of limitation stipulated under Article 136 of the Act could not have been condoned as has been so presumed by the learned Single Judge. The reliance placed on Bharti Devi is totally misconceived inasmuch as in the said case, the execution proceeding was initiated for permanent injunction. No exception can be taken to the same and, therefore, reliance placed on the said decision is misconceived.

15. Reference may also be made in this regard to the Apex Court judgment reported in Ratansingh Vs. Vijaysingh and Others, wherein the Court held that mere filing of an appeal would not affect the enforceability of the decree unless the appellate court stays its operation. But if the appeal results in a decree that would supersede the decree passed by the lower court then it is the appellate court decree which becomes enforceable. When the appellate order does not amount to a decree there would be no supersession and hence, lower court decree continues to be enforceable, in the present case also the ex parte decree passed in 1992 continued to be enforceable from the date of decree itself and there was no stay at any stage. In such view of the matter, the learned Single Judge rightly held that the Tribunal acted beyond its jurisdiction while condoning the delay in filing the application for execution of decree.

16. Much emphasis has been led on the plea that public interest is going to suffer because of legal technicalities and equity demands that the execution case should be allowed to proceed in such facts and circumstances of the case. This argument, though may appear to be attractive but is fit to be rejected in view of well accepted doctrine "dura lex sed lex" which means that "the law is hard but it is the law". Equity can only supplement the law but it cannot supplant or override It. It has been held by the Apex Court in Madamanchi Ramappa and Another Vs. Muthalur Bojjappa, that what is administered in courts is justice according to law and considerations of fair play and equity, however, important they may be, must yield to clear and express provisions of the law.

17. In the case of India House Vs. Kishan N. Lalwani, , the Apex Court has emphatically held that the period of limitation statutorily prescribed has to be strictly adhered to and cannot be relaxed or departed from for equitable considerations. In view of above, I find no merit in the appeal as the order of learned Single Judge needs no interference and the appeal is, accordingly, dismissed.

There shall be no order as to costs.

T. Meena Kumari, J.

I agree.